Gregory Wheatley v Orana Engineering Pty Ltd - [2025] FWC 736

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 736
Decision Date: 14 MARCH 2025

CaseChat Overview and Summary

Gregory Wheatley, the Applicant, lodged an application with the Fair Work Commission (FWC) seeking a remedy for an alleged unfair dismissal by Orana Engineering Pty Ltd, the Respondent. Mr Wheatley claimed to have been dismissed on 4 December 2024, and he lodged his application on 10 January 2025, 14 days outside the statutory time limit for such claims. The central issue before Deputy President Lake was whether an extension of time should be granted to Mr Wheatley under s.394(3) of the Fair Work Act 2009, considering the statutory timeframe had lapsed.

Deputy President Lake considered various factors to determine if exceptional circumstances existed that warranted an extension of time. These included the reason for the delay, whether Mr Wheatley became aware of the dismissal after it had taken effect, any action taken by him to dispute the dismissal, any prejudice to the Respondent, the merits of the dismissal claim, and fairness as between the Applicant and other persons in a like position. The Applicant’s reason for delay was based on a misunderstanding of the commencement of the statutory period, which was deemed unacceptable. Additionally, the Applicant did not take any action to dispute the dismissal prior to lodging the claim, nor did he provide submissions on the fairness factor. The merits of the dismissal claim were not thoroughly considered due to the absence of a hearing on the substantive issues. Deputy President Lake concluded that exceptional circumstances were not present, and thus, the extension of time was not granted, resulting in the dismissal of Mr Wheatley's application.

The Deputy President ordered the dismissal of Mr Wheatley’s application for an unfair dismissal remedy, as the statutory timeframe for lodging the claim had expired, and no exceptional circumstances were established to warrant an extension.

Orders