Gregory Wheatley v Orana Engineering Pty Ltd
[2025] FWC 736
•14 MARCH 2025
| [2025] FWC 736 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gregory Wheatley
v
Orana Engineering Pty Ltd
(U2025/365)
| DEPUTY PRESIDENT LAKE | BRISBANE, 14 MARCH 2025 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – no exceptional circumstances – application dismissed
Mr Gregory Wheatley (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in stating that he was unfairly dismissed by Orana Engineering Pty Ltd (the Respondent).
On the Form F2, the Applicant states that he commenced his employment with the Respondent on 9 October 2023 and was notified of his dismissal on 4 December 2024. The termination letter noted that the dismissal was effective immediately.[1]
Accounting for public holidays, the 21-day period ended on 27 December 2024. The Applicant lodged his application on 10 January 2025. The application was lodged 14 days outside the statutory time limit prescribed by s.394(2) of the Act.
The question before me is to determine whether an extension of time should be granted pursuant to s.394(3) of the Act. The Respondent opposes the granting of an extension of time.
Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file his application. A hearing was held before me on 10 March 2025. The Respondent was represented by Ms Belinda Winter of Cooper Grace Ward Lawyers. I granted leave for the Respondent to be represented on the basis that it would assist in dealing with the matter efficiently, taking into account the legal principles that govern whether an extension of time should be granted.
Should a further period be granted?
Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a like position.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[2] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[3] the Full Bench of Fair Work Australia stated that:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).
For the Applicant’s application to proceed, I must be satisfied that there are “exceptional circumstances” for the Applicant to obtain an extension of time under s.394(3) of the Act.
Consideration
Reason for the delay (s.394(3)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[4] or a reasonable explanation.[5] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each. [6]
It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[7]
The Applicant’s reason for delay is solely based around a misunderstanding of when the 21-day statutory timeframe commences.
The Applicant believed that the period would only commence after the completion of the period of 4-weeks for which the Applicant had been paid in lieu of notice.[8] The Applicant acknowledges that this was an error on his part.
The Applicant’s dismissal was effective immediately and the period commenced on the day following the dismissal.
The Applicant has made a regrettable error in failing to research when the 21-day period commenced. This is particularly unfortunate as the Applicant’s submissions are otherwise well-researched.
It is well established that ignorance of the law is not an exceptional circumstance.[9] I find that the Applicant’s reason for delay is not acceptable. This weighs against an extension of time.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
The Applicant became aware of his dismissal on the day it took effect, 4 December 2024.
This consideration weighs against an extension of time.
Action taken to dispute the dismissal (s.394(3)(c))
The Applicant did not take any action to dispute the dismissal prior to lodging this claim.
This consideration does not weigh in favour of a finding of exceptional circumstances.
Prejudice to the employer (s.394(3)(d))
The Respondent argues that there may be a degree of prejudice to the Respondent, given the dismissal took place three months ago. However, the Respondent also argues that an absence of prejudice is not a sufficient reason to grant an extension.[10]
The Respondent argues it would suffer prejudice if the application were to continue as its staff members would have to be absent to attend proceedings and it would incur legal costs.[11] However, both of these concerns are not attributable to the delay, as they would also be concerns for the Respondent if the application had been brought within time.
I note that the Full Bench has found that whether an absence of prejudice is neutral or whether it weighs in favour of granting an extension depends on the facts of the case.[12]
I consider this to be a neutral factor.
Merits of the Application (s.394(3)(e))
It is not appropriate for the Commission to embark on a detailed consideration of the substantive case when deciding whether to grant an extension of time.[13]
The Applicant has provided detailed submissions on the merits of the application, particularly regarding the Respondent’s alleged failure to provide training and supervision for the Applicant. The Respondent notes that the Applicant was a performance management plan prior to being dismissed and that the Applicant’s performance had not improved to the requisite standard, resulting in his termination.[14]
In Kornicki v Telstra-Network Technology Group,[15] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
The Applicant has not provided any submissions on this point. As noted in Nulty, it is not unusual for parties to make applications out of time due to ignorance of the statutory timeframe.[16] In situations such as this, ignorance of the timeframe does not establish exceptional circumstances, such that the strict time limit should be extended.
I find this to be a neutral factor in this application.
Conclusion
Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. Accordingly, the extension of time is not granted and the application is dismissed.
I Order accordingly.
DEPUTY PRESIDENT
Appearances:
G Wheatley for himself as the Applicant
B Winter for the Respondent from Cooper Grace Ward Lawyers
Hearing details:
10 March 2025
Brisbane
Hearing via Microsoft Teams.
[1] Termination Letter dated 4 December 2024.
[2] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].
[3] [2019] FWC 25.
[4] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].
[5] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].
[6] [2018] FWCFB 901 [39].
[7] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[8] Extension Letter from the Applicant.
[9] Nulty v Blue Star Group Pty Ltd [2019] FWC 25, [13].
[10] Respondent Submissions [20]
[11] Respondent Submissions [19].
[12] Miller v DPV Health Ltd[2019] FWCFB 6890, [21]-[22].
[13] Bennett v McCarrolls of Moss Vale Pty Ltd T/A McCarrolls Automotive Group[2017] FWCFB 1971 at [19].
[14] Respondent Submissions [23].
[15] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[16] Nulty v Blue Star Group Pty Ltd [2019] FWC 25, [13].
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