Jonathan Ritchie v The Brew Testament - [2025] FWC 1568

[2025] FWC 1568

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Jonathan Ritchie
v

The Brew Testament

(C2025/3620)

DEPUTY PRESIDENT LAKE

BRISBANE, 12 JUNE 2025

Application to deal with contraventions involving dismissal – jurisdictional objection – extension of time – extension not granted – application dismissed

Mr Jonathan Ritchie (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 2 May 2025. The Applicant claimed that adverse action was taken against him by The Brew Testament (the Respondent) under s.340 of the Fair Work Act 2009 (Cth) (the Act).

The Applicant was summarily dismissed on 31 March 2025. Taking into account the Easter Monday public holiday, the application is 10 days out of time from the 21-day statutory timeframe prescribed under s.366(1)(a) of the Act. The Application can only be accepted if the Commission allows taking into the factors of s.366(2) which I have considered below.

The matter was listed for hearing on 5 June 2025. The Applicant and Respondent appeared self-represented. The Respondent was represented by the owner of the business, Mr Jordan Purcell.

Should an extension of time be granted under s.366(2) of the Act?

Section 366 of the Act provides when a further period is granted to accept a late application.
366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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 like position.
There must be exceptional circumstances in order to be granted a further period to lodge this application. In summary, exceptional circumstances are:

· Out of the ordinary course, unusual, special or uncommon. It does not need to be unique, unprecedented or vary rare.
· It can be 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.^[1]

(a)the reason for the delay

The Act does not specify what reasons for delay might suggest allowing for a further period of time, however it must be an acceptable[2] or a reasonable explanation.[3]

The Applicant sought legal advice on 31 March 2025, the day of his dismissal, by completing an online request form on the Fair Work Ombudsman website for assistance from the Workplace Advice Service (WAS). The Applicant provided as screenshot of the auto-reply email he received from WAS showing the date of the submission on 31 March 2025. It states that the enquiry is related to…

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 1568
Decision Date: 12 JUNE 2025

CaseChat Overview and Summary

In the matter of Jonathan Ritchie v The Brew Testament, the Fair Work Commission (FWC) was tasked with determining whether the Applicant's late general protections application involving dismissal could be accepted by the Commission. Mr. Ritchie, the Applicant, claimed that he was dismissed under s.340 of the Fair Work Act 2009 (Cth). The statutory timeframe for such an application is 21 days after the dismissal took effect, but the Applicant's submission was 10 days late. The Commission was required to decide whether exceptional circumstances justified an extension under s.366(2) of the Act.

The court meticulously reviewed the factors outlined in s.366(2) of the Act, which includes reasons for the delay, any action taken by the person to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between the person and other persons in a like position. The Applicant's explanation for the delay was deemed unsatisfactory, as he had been informed of the 21-day statutory timeframe at least twice prior to the limitation period expiring. The Applicant's attempt to dispute the dismissal through a text message was considered marginally relevant but insufficient to weigh significantly in favour of exceptional circumstances. The court also found that prejudice to the employer and the merits of the application were neutral factors. Lastly, while the fairness factor slightly favoured the Applicant, it was not enough to establish exceptional circumstances.

The Deputy President, Lake, concluded that there were no exceptional circumstances to warrant an extension of time for the Applicant's late application. Consequently, the Applicant's request for the Commission to deal with the dismissal dispute was dismissed. This decision underscores the importance of adhering to statutory timeframes and the necessity of providing satisfactory explanations for any delays in filing applications within the Fair Work Act framework.

Orders