Ian Stanley David Barwick v Qube Logistics (Sb) Pty Ltd
[2025] FWC 714
•12 MARCH 2025
| [2025] FWC 714 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ian Stanley David Barwick
v
Qube Logistics (Sb) Pty Ltd
(C2025/563)
| COMMISSIONER SIMPSON | BRISBANE, 12 MARCH 2025 |
Application to deal with contraventions involving dismissal – jurisdictional objection – application out of time – extension of time granted
On 21 January 2025, Mr Ian Stanley David Barwick (Mr Barwick / the Applicant) applied to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for an application to deal with a general protections dispute involving dismissal. The Respondent in the matter was named as Qube Logistics (Sb) Pty Ltd (the Respondent).
The Respondent raised a jurisdictional objection that the application was filed outside of the 21-day statutory timeframe. On 12 February 2025, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objection. On 5 March 2025, the Respondent wrote to my Chambers to advise that it wished to withdraw its jurisdictional objection, having regard to the Applicant’s personal and family circumstances. On 6 March 2025, my Chambers notified the parties by email that, having regard to the Respondent’s response to the Applicant’s submissions, I would determine extension of time issue on the papers.
The Applicant was represented by Natalie Strijland, a Solicitor at N R Barbri Solicitor Pty Ltd, and Ms Brooke McNamara, Group General Manager – Employee Relations, filed submissions on behalf of the Respondent.
Ms Wanduan Kumthanom, the Applicant’s wife, provided a witness statement dated 20 February 2025.
Background and Evidence
On the morning of 4 December 2024, Mr Barwick was involved in a physical altercation with a fellow employee (the altercation). The Applicant says he subsequently reported the altercation to Mr Jim Hayes and Mr Darren Fuller of the Respondent however the Applicant alleges that it was never followed up on or properly investigated by the Respondent.
On 9 December 2024, the Applicant was subject to a routine urine drug test along with other employees of the Respondent (the first test) and was advised on that day that he had passed it.
On 17 December 2024, the Respondent conducted a second urine drug test of employees at the Applicant’s work site. There is some dispute about the reason for the second test being undertaken (the second test). The Applicant alleges in his Form F8 that the second test was adverse action undertaken because he had made a complaint regarding the altercation. The Respondent disputes this and submits that drug testing of employees was ‘common practice’ during the Christmas and New Year period, that all employees at the site were subject to the second test, and that the second test had been necessary because the Applicant had allegedly falsified the results of the first test.[1]
In any event, the Applicant returned a non-negative result on the second test and was stood down that same day, 17 December 2024. The Applicant was informed by telephone on 20 December 2024 that his employment was terminated for the reason that he had returned a non-negative result on the second test.
Shortly thereafter, on 23 December 2024, the Applicant departed on a trip to Thailand with his wife to visit his mother-in-law and brother-in-law who were seriously ill. Also on 23 December 2024, the Applicant says that his father wrote to the Respondent on his behalf to dispute the termination and request reconsideration of the dismissal. It is unclear if he ever received a response and, in its submissions, the Respondent suggests that it never in fact received this correspondence.
Mr Barwick returned to Australia on 9 January 2025 but says he was unable to obtain legal assistance until 14 January 2025 due to the Christmas shutdown period. The Application was filed on 21 January 2025. The Application was therefore filed 10 days out of time.
Consideration
In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under s.366(2) of the Act. This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[2] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[3] 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 can be considered exceptional.[4]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:
“As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional”[5]
(original emphasis)
Reason for the delay
The Applicant submits that his application was filed out of time but that there were exceptional circumstances which mean he ought to be granted an extension of time to file his application.
The Applicant submits that the reason for the delay was his need to travel to Thailand to attend to his sick relatives (the first reason) and the Christmas shutdown period during which his solicitors were unavailable to provide legal assistance (the second reason).
I am satisfied that the Applicant’s reasons for the delay weigh in favour of granting an extension.
Action taken to dispute the dismissal
The Applicant further submits that there was no prejudice to the Respondent, in circumstances where he had taken steps to dispute the dismissal, through his father, thereby putting the Respondent on notice that the Application may be filed, albeit several days late.
Prejudice to the employer
The Respondent will not experience any substantial prejudice as a result of the delay. I consider this to be a neutral factor.
Merits of the application
The merits of the application are a neutral consideration.
Fairness as between the applicant and other persons in a like position
I consider this a neutral factor.
Conclusion
Having considered all of the matters I am required to take into account in s. 366 of the Act, I am satisfied that there are exceptional circumstances in this case justifying a further period of seven days to allow the Applicant to file his application. On that basis I grant an extension of time to the Applicant.
The matter will be programmed for conference.
COMMISSIONER
[1] Form F8A at 3.1 [4(a)–(c)].
[2] (2011) 203 IR 1, 6 [15].
[3] Ibid 5 [13].
[4] Ibid 5–6 [13].
[5] (2018) 273 IR 156, 165 [38].
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