James Boland v Downer EDI Engineering Power Pty Ltd - [2025] FWC 2770

[2025] FWC 2770

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

James Boland
v

Downer EDI Engineering Power Pty Ltd

(U2025/13797)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 17 SEPTEMBER 2025

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.

Introduction

This decision concerns an application by Mr James Boland (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against his former employer, Downer EDI Engineering Power Pty Ltd (Respondent).

The Applicant seeks an extension of time to lodge his unfair dismissal application in the Fair Work Commission (Commission).

The parties agree that the Applicant’s dismissal from his employment with the Respondent took effect on 23 July 2025. The Applicant lodged his unfair dismissal application in the Commission on 26 August 2025.

The parties agreed that I should determine the Applicant’s request for an extension of time on the basis of the written material filed by the parties. This consists of the F2 Unfair dismissal application filed by the Applicant on 26 August 2025, the email from the Applicant to the Commission sent at 3:13pm on 4 September 2025, and the F3 Employer response filed by the Respondent.

Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 13 August 2025. The application was therefore filed thirteen days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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.[2]

The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer…

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 2770
Decision Date: 17 SEPTEMBER 2025

CaseChat Overview and Summary

James Boland sought relief for an unfair dismissal against his employer, Downer EDI Engineering Power Pty Ltd. His application was filed out of the prescribed 21-day period, and he requested an extension under s 394(3) of the Fair Work Act 2009. The Commission needed to determine if there were exceptional circumstances to justify the extension. The Applicant lodged his application on 26 August 2025, thirteen days past the statutory deadline. The Applicant cited a misunderstanding about filing multiple applications concurrently as the reason for the delay. The Commission assessed whether this was a reasonable explanation and found it insufficient to constitute exceptional circumstances.

The Commission considered several factors to determine if exceptional circumstances existed. These included the reason for the delay, the Applicant's awareness of the dismissal, actions taken to dispute the dismissal, prejudice to the employer, the merits of the unfair dismissal claim, and fairness compared to others in similar positions. The Applicant's explanation for the delay was deemed unreasonable, as he remained employed by Downer EDI throughout. Additionally, the absence of prejudice to the employer and the relatively weak merits of the unfair dismissal claim further weighed against finding exceptional circumstances. The Applicant’s explanation for the delay, lack of reasonable prejudice to the employer, and the weak merits of the claim collectively indicated that the circumstances were not exceptional.

Based on these findings, the Deputy President concluded that there were no exceptional circumstances warranting an extension of time. Consequently, the application for an unfair dismissal remedy was dismissed. The Commission did not find the Applicant's explanation for the delay acceptable, nor did it find the other factors to sufficiently establish exceptional circumstances. As such, the application for an extension of time was denied, and the unfair dismissal claim was dismissed.

Orders