Michael Appleby v Petstock Tasmania Pty Ltd - [2025] FWC 1878

[2025] FWC 1878

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Michael Appleby
v

Petstock Tasmania Pty Ltd

(U2025/9900)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 4 JULY 2025

Application for an unfair dismissal remedy – extension of time – exceptional circumstances not found, additional time not granted.

Introduction

On 13 June 2025, Mr Michael Appleby made an application to the Fair Work Commission for an unfair dismissal remedy.

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 Applicant contends that he was unfairly dismissed by Petstock effective 22 May 2025. Accordingly, to fall within the 21-day timeframe, the application should have been made by midnight on 12 June 2025. The application was filed one day late.

For his application to proceed, Mr Appleby requires the Commission to grant additional time to make his application. This issue was dealt with at a hearing on 2 July 2025, at which the Applicant gave evidence in support of his application.

Exceptional circumstances

Additional time can be allowed only if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1] Exceptional circumstances might be a single event which is exceptional, 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 the time to apply can be extended is a high hurdle.[3]

In deciding whether I am satisfied that there are exceptional circumstances, I must consider:

·   the reason for the delay,
·   whether the person first became aware of the dismissal after it had taken effect,
·   any action taken by the person to dispute the dismissal,
·   prejudice to the employer (including prejudice caused by the delay),
·   the merits of the application, and
·   fairness as between the person and other persons in a similar position.

I am required to consider, assess and give appropriate weight to each of these considerations.

Relevant factors

Reason for delay:

Although the Act does not specify what reasons for delay might justify granting an extension of time, 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 of the circumstances must be considered.[4]

The delay to be considered is the period after the 21-day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21-day period.[5] However, the circumstances from the time of the dismissal must be considered…

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.

Continue reading Michael Appleby v Petstock Tasmania Pty Ltd

Details

AGLC: Michael Appleby v Petstock Tasmania Pty Ltd [2025] FWC 1878
Case: [2025] FWC 1878
Decision Date: 4 JULY 2025

CaseChat Overview and Summary

Michael Appleby, the Applicant, applied to the Fair Work Commission for an unfair dismissal remedy after he was dismissed by Petstock Tasmania Pty Ltd on 22 May 2025. The application was lodged on 13 June 2025, one day after the 21-day statutory limit for lodging such an application. The Applicant sought an extension of time to lodge his application on the basis that there were exceptional circumstances. The Commission was required to decide whether the statutory time limit for lodging an unfair dismissal application could be extended. The question of whether exceptional circumstances exist is a high threshold and requires consideration of a number of factors, including the reason for the delay, whether the Applicant was aware of the dismissal, any action taken by the Applicant to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness between the Applicant and other persons in a similar position. The Commission found that the Applicant did not provide an acceptable explanation for the delay in lodging the application. The Applicant had experienced technical difficulties when attempting to lodge the application and was concerned that it may not have been successfully submitted as he did not receive any confirmation of receipt. However, there was no record of any application submitted by the Applicant on 12 June 2025, and other applications were successfully submitted using the online lodgment system that evening. The Commission found that the Applicant’s reason for delay did not weigh in favour of a finding of exceptional circumstances. The Applicant had confirmed he was dismissed on 22 May 2025 and was notified of the dismissal on the same day, meaning he had the benefit of the full 21-day period within which to lodge the application. This was a factor that weighed slightly against a conclusion that there were exceptional circumstances. The merits of the application were a relevant consideration, however the Applicant’s unfair dismissal case did not appear to be sufficiently strong so as to weigh in favour of a finding of exceptional circumstances. The Commission was not satisfied that there were exceptional circumstances in this case. The Commission found that none of the considerations weighed in favour of granting an additional period of time. The Commission has no power to allow the Applicant additional time to make his application, which means he is not entitled to apply for an unfair dismissal remedy. The Commission dismissed the application.

Orders