Michael East v Poultry Harvesting Pty Ltd - [2025] FWC 2294

[2025] FWC 2294

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Michael East
v

Poultry Harvesting Pty Ltd

(U2025/10264)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 6 AUGUST 2025

Application for an unfair dismissal remedy - application filed 2 days out of time – extension not granted – application dismissed.

On 27 May 2025, Mr Michael East was notified of his dismissal from employment with Poultry Harvesting Pty Ltd (the Respondent) with effect that day. The period of 21 days in s.394(2)(a) of the Fair Work Act 2009 (the Act) for Mr East to make an unfair dismissal application ended, therefore, at midnight on 17 June 2025. Mr East’s application was filed 2 days outside of this 21-day period on 19 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.[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.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 Mr East’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, 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 date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 17 June 2025. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for, in this case, the 2-day delay, or any part of that delay, beyond the 21-day period.[4]

Mr East said he did not initially take any steps towards making application following his dismissal because he considered his predicament was a “lost cause.” However, with encouragement from his father and brother, he attended what…

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 2294
Decision Date: 6 AUGUST 2025

CaseChat Overview and Summary

In the Fair Work Commission, Mr Michael East lodged an unfair dismissal application against Poultry Harvesting Pty Ltd, his former employer, seeking to have his dismissal deemed unfair. The application was filed two days beyond the 21-day statutory period, necessitating an extension under the Fair Work Act 2009. The Deputy President, Clancy, was tasked with determining whether exceptional circumstances justified the late filing.

The primary legal issue was whether the circumstances surrounding Mr East's delay in lodging his application constituted "exceptional circumstances" warranting an extension under section 394(3) of the Act. The Deputy President assessed this by considering various factors, including the reason for the delay, Mr East's awareness of his dismissal, actions taken to dispute the dismissal, potential prejudice to the employer, and the merits of the application itself. Each of these considerations was evaluated to determine if they collectively demonstrated exceptional circumstances.

Deputy President Clancy found that Mr East's explanation for the delay was not credible, as he had ample time to lodge his application within the prescribed period. Mr East claimed that he believed his case was a "lost cause" and did not take immediate action, but the Deputy President noted that weighing up options and deciding on a course of action is a common experience for applicants. Additionally, while Mr East asserted he was wrongly accused and dismissed without due process, the substantial merits of his application could not be fully examined at this stage. The Deputy President concluded that none of the factors weighed in favour of granting an extension, and thus, there were no exceptional circumstances present. Consequently, the application for an extension of time was denied, and Mr East's unfair dismissal application was dismissed.

Orders