Jason Duff v Woolworths Group Limited - [2025] FWC 2131

[2025] FWC 2131

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Jason Duff
v

Woolworths Group Limited

(C2025/3467)

COMMISSIONER FOX

MELBOURNE, 31 JULY 2025

Application to deal with contraventions involving dismissal – Application made outside the 21-day timeframe – No exceptional circumstances found – Application dismissed.

On 28 April 2025, Mr Jason Duff filed an application under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a general protections dispute involving dismissal. The Respondent to Mr Duff’s application is Woolworths Group Limited (Woolworths).

From the Form F8 – General protections application involving dismissal (Form F8) and the separation certificate filed by Mr Duff, it appeared that Mr Duff was dismissed effective 30 March 2025. From the Respondent’s submissions, it says that Mr Duff was notified of his dismissal on 20 March 2025 and due to Mr Duff’s pre-planned leave, his dismissal was effective 30 March 2025. However, at the Determinative Conference, Woolworths submitted that Mr Duff was terminated with immediate effect on 20 March 2025, and that he was not on any paid leave, and did not return to the workplace after 20 March 2025. It says that a delay occurred, and the termination was not processed until 30 March 2025. Woolworths concede that the termination date may well be 30 March, but regardless of whether it was 20 March or 30 March, the Form F8 is still late. However, noting that Woolworths advised Mr Duff by letter of his termination on, and effective from, 20 March, I consider the date of dismissal to be 20 March 2025. Mr Duff filed his application on 28 April 2025, which meant that he filed his application 18 days outside the 21-day timeframe required to make an application.

The matter proceeded to a Determinative Conference. My Chambers prepared a Digital Hearing Book which was issued to the parties prior to the Determinative Conference. Noting that there were no objections from either party, I accepted into evidence the entirety of the Digital Hearing Book. At the Determinative Conference, Mr Duff, and Mr Trystan Bass of Woolworths, gave evidence.

In considering the evidence of the parties, I find that the application was filed outside the 21-day timeframe and that there are no exceptional circumstances justifying the granting of an extension of time. The reasons for my decision follow.

Statutory Context

The Act allows the Commission to consider extending the period within which a general protections application involving dismissal may be made, if it is satisfied that there are exceptional circumstances.[1] I can only exercise my discretion if I am satisfied there are exceptional circumstances. The meaning of “exceptional circumstances” was considered and summarised by the Full Bench in Nulty v Blue Star Group:[2]

“[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…

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 2131
Decision Date: 31 JULY 2025

CaseChat Overview and Summary

Jason Duff filed an application under the Fair Work Act 2009, seeking the Fair Work Commission's intervention in a general protections dispute involving his dismissal. Woolworths Group Limited, the employer, responded to the application, which was filed 18 days outside the mandated 21-day period. The Commission held a Determinative Conference to determine whether to extend the filing deadline, considering various factors.

The legal issue before the Commission was whether exceptional circumstances justified extending the time limit for filing Mr Duff's application. The Commission examined the reasons for the delay, Mr Duff's actions to dispute the dismissal, any prejudice to Woolworths, the merits of the application, and fairness to other similarly situated individuals. The Commission concluded that none of these factors warranted extending the time limit for filing.

The Commission found that Mr Duff's explanation for the delay, including a mix-up with the Commission's case management system and a refund request, did not constitute exceptional circumstances. The Commission also noted that Mr Duff did not need to wait for his refund to file his application, as per the Commission's guidelines. Additionally, the Commission found that Woolworths did not suffer any undue prejudice from the delay, and the merits of the application could not be determined without a full examination of the evidence. The Commission further determined that fairness to other similarly situated individuals did not favour extending the time limit, as each case depends on its unique facts.

Based on these findings, the Commission dismissed Mr Duff's application for an extension of time, concluding that no exceptional circumstances existed. Consequently, the application was deemed not to have been made within the required timeframe.

Orders