Mathew Jones v Mastones Pty Ltd - [2025] FWC 2205

[2025] FWC 2205

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mathew Jones
v

Mastones Pty Ltd

(U2025/10115)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 29 JULY 2025

Application for an unfair dismissal remedy – application filed 96 days out of time – extension not granted – application dismissed.

Mr Mathew Jones (the Applicant) asserts that on 19 February 2025, he was notified of his dismissal from employment with Mastones Pty Ltd (the Respondent). The Applicant outlined in his Form F2 – Unfair dismissal application (Form F2) that the dismissal took effect on 20 February 2025. In both the Applicant’s Outline of argument: Extension of time and witness statement dated 9 July 2025, the Applicant assert that his dismissal took effect at 8.00am on 20 February 2025. At the determinative conference, the Applicant claimed he was told that the dismissal took effect on 19 February 2025. The Respondent submits the Applicant was not dismissed within the meaning of s.386 of the Fair Work Act 2009 (the Act) and claims instead that he resigned from his employment on 20 February 2025. This is therefore a case in which there is no dispute that the Applicant’s employment with the Respondent ceased and I consider it is open to me to determine that the Applicant’s employment came to an end on a particular date without deciding whether or not he was dismissed within the meaning of s.386 of the Act.[1] For the purpose of determining this extension of time application, I am prepared to assume, without deciding, that the Applicant was dismissed on 20 February 2025.[2] The period of 21 days in s.394(2)(a) of the Act for the Applicant to make an unfair dismissal application ended, therefore, at midnight on 13 March 2025. The Applicant’s application was filed 96 days outside of this 21-day period on 17 June 2025. As such, he requires the Commission to allow him an extension of time (s.394(2)(b)).

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”, taking into account the factors in s.394(3)(a) to (f). 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.[3] 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.[4] The requirement that the matters outlined in s.394(3)(a) to (f) 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 the Applicant’s application for an extension of time.

Reason for the delay – s.394(3)(a)

The Act does not specify what reason for delay might tell in favour of granting an extension,…

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 2205
Decision Date: 29 JULY 2025

CaseChat Overview and Summary

In the Fair Work Commission, Mathew Jones (the Applicant) filed an application for an unfair dismissal remedy against Mastones Pty Ltd (the Respondent). The Applicant claimed that he was dismissed from his employment on 20 February 2025. The Respondent, however, maintains that the Applicant resigned from his position as a store manager on the same date. The central legal issue in this case was whether the Fair Work Commission should grant an extension of time for the Applicant to file his unfair dismissal application, which was submitted 96 days beyond the 21-day statutory period. The statutory period for filing an unfair dismissal application under the Fair Work Act 2009 ended on 13 March 2025, and the Applicant submitted his application on 17 June 2025. The Commission must consider various factors under s.394(3) of the Act to determine if there are "exceptional circumstances" warranting an extension. These factors include the reason for the delay, whether the Applicant was aware of the dismissal, actions taken to dispute the dismissal, potential prejudice to the employer, the merits of the application, and fairness to the Applicant relative to others in similar positions.

The Deputy President examined the Applicant's reasons for the delay, which included stress and waiting for promised payments. The Deputy President found these reasons insufficient as they did not justify the 96-day delay. The Applicant had engaged in correspondence with the Respondent and their lawyers, indicating he was capable of taking action within the statutory period. Additionally, the Applicant's assertion that he only became aware of the 21-day period after it had elapsed did not constitute an acceptable explanation for the delay. While the Applicant did take steps to dispute his dismissal, the significant delay and lack of credible explanation for it led to the conclusion that there were no exceptional circumstances. Consequently, the Deputy President declined to grant an extension of time and dismissed the Applicant's unfair dismissal application.

Orders