Kallum Stott v NBN Co Limited - [2025] FWC 1889

[2025] FWC 1889

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Kallum Stott
v

NBN Co Limited

(C2025/3713)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 3 JULY 2025

Application for the Commission to deal with a dismissal dispute under s.365 of the Act – application filed 7 days out of time – extension not granted – application dismissed.

On 7 May 2035, Mr Kallum Stott made a general protections application involving dismissal to the Fair Work Commission pursuant to s.365 of the Fair Work Act 2009 (the Act). As it was evident from Mr Stott’s Form F8 – General Protections Application Involving Dismissal (Form F8) that the application was not made within 21 calendar days after Mr Stott’s dismissal took effect on 9 April 2025, Mr Stott was required to seek an extension of time in which to file his general protections application. The Respondent to this application is NBN Co Limited (Respondent) and in its Form F8A – Response to General Protections Application (Form F8A) it objected to Mr Stott’s application on the basis that the application was lodged out of time.

The Act allows the Commission to extend the period within which an application under s.365 of the Act must be made only if it is satisfied that there are “exceptional circumstances”, taking into account the factors in s.366(2)(a) to (e). 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 the matters outlined in s.366(2)(a) to (e) be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of Mr Stott’s application for an extension of time.

Reason for the delay – s.366(2)(a)

The Act does not specify what reason for the delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all the circumstances must be considered.[3]

The delay required to be considered is the period beyond the prescribed 21-day period for making an unfair dismissal application. It does not include the period from the 9 April 2025 date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 30 April 2025. However, the circumstances from the time of the dismissal must be considered when assessing whether there…

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 1889
Decision Date: 3 JULY 2025

CaseChat Overview and Summary

Kallum Stott filed a general protections application involving dismissal against NBN Co Limited with the Fair Work Commission (FWC) on 7 May 2025, seven days beyond the 21-day period stipulated by the Fair Work Act 2009 (the Act). NBN Co Limited objected to the application on the basis that it was lodged out of time. Mr Stott was required to seek an extension of time to file his application, and the Commission may only grant such an extension if it is satisfied that there are "exceptional circumstances" under s.366(2) of the Act. The Deputy President, Clancy, was required to consider the factors outlined in s.366(2)(a) to (e) in determining whether there were exceptional circumstances.

Deputy President Clancy found that Mr Stott's explanation for the delay did not constitute exceptional circumstances. He had been aware of the 21-day time period from the date of his dismissal and had not needed to wait for contact from the Workplace Advice Service (WAS) to make an application. Additionally, while Mr Stott had experienced depressive symptoms following his dismissal, this did not render him unable to take steps in response to his dismissal. The Deputy President found that Mr Stott's conduct in consulting the FWC website and completing the WAS request form could be characterised as taking action to dispute his dismissal, but that this only marginally weighed in favour of an extension of time. The Deputy President found that there was no prejudice to the Respondent if the application was granted, and that the merits of the application were neutral in considering whether to extend time. Finally, the Deputy President found that there was no relevant matter concerning the fairness as between the person and other persons in a similar position, and that this consideration was neutral.

Deputy President Clancy found that there were no exceptional circumstances and dismissed Mr Stott's application for an extension of time. The Deputy President ordered that the application be dismissed.

Orders