Mr. Beau Scholtz v All Skills Resourcing Pty Ltd, Diverse Group (Australia) Pty Ltd, Diverse Holdings (Australia) Pty Ltd - [2025] FWC 1326

[2025] FWC 1326

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr. Beau Scholtz
v

All Skills Resourcing Pty Ltd, Diverse Group (Australia) Pty Ltd, Diverse Holdings (Australia) Pty Ltd

(C2025/1414)

DEPUTY PRESIDENT ROBERTS

SYDNEY, 13 MAY 2025

Application alleging contravention of General Protections provisions – extension of time – whether exceptional circumstances exist – reason for delay - representative error – whether solicitor wholly responsible for delay - application dismissed.

This decision concerns the issue of whether there are ‘exceptional circumstances’ such that the applicant in this matter, Mr. Beau Scholtz (Applicant), should be permitted to proceed with a late application under Part 3-1, General Protections, of the Fair Work Act 2009 (Cth) (Act). For the reasons below, I have concluded that there are no exceptional circumstances as contemplated by the relevant provisions of the Act. It follows that the application must be dismissed.

Background

On 24 February 2025 the Applicant filed an application under s.365 of the Act against his previous employer, All Skills Resourcing Pty Ltd (First Respondent) alleging that his employment had been terminated by the First Respondent in breach of Part 3-1 of the Act. Diverse Group (Australia) Pty Ltd and Diverse Holdings (Australia) Pty Ltd are related bodies corporate of the First Respondent and were named as additional respondents to the proceeding.

Under s.366(1) of the Act, an application of this kind must be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission (Commission) allows under s.366(2). It was not in issue that the Applicant’s dismissal took effect on 17 January 2025 and that the application therefore had to be filed on or before 7 February 2025 to be within the statutory time period. On this basis it was accepted that the application was out of time by a period of 17 days.

The First Respondent objected to the application on the basis that it was not made within the 21-day time period and maintained that there were no exceptional circumstances to justify an extension of time. The Applicant asserted that exceptional circumstances existed and asked the Commission to extend time.

Legislation

Section 366(2) sets out the circumstances in which the Commission may extend time for an application of this kind and the matters which are to be taken into account in determining whether exceptional circumstances exist. It provides:

(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.

I deal with each of the matters referred to in s.366(2) below.

Section 366(2)(a) – reason for the delay

The Applicant argued that his…

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

AGLC: Mr. Beau Scholtz v All Skills Resourcing Pty Ltd, Diverse Group (Australia) Pty Ltd, Diverse Holdings (Australia) Pty Ltd [2025] FWC 1326
Case: [2025] FWC 1326
Decision Date: 13 MAY 2025

CaseChat Overview and Summary

In the matter of Mr. Beau Scholtz v All Skills Resourcing Pty Ltd, Diverse Group (Australia) Pty Ltd, and Diverse Holdings (Australia) Pty Ltd, the Fair Work Commission addressed the application of Mr. Scholtz for an extension of time to file his general protections application under the Fair Work Act 2009. Mr. Scholtz had been dismissed by All Skills Resourcing Pty Ltd on 17 January 2025, and his application to the Fair Work Commission was due within 21 days of the dismissal, or by 7 February 2025. However, the application was filed on 24 February 2025, 17 days beyond the statutory period. The Respondents objected to the late application, arguing that there were no exceptional circumstances justifying an extension of time.

The legal issues for the Commission to decide were whether exceptional circumstances existed to warrant an extension of time under section 366(2) of the Fair Work Act, and if so, what weight should be given to the various factors mentioned in that section. Section 366(2) permits the Commission to allow a further period if it is satisfied that there are exceptional circumstances, taking into account the reason 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 Commission found that the delay was largely due to representative error by the Applicant's solicitor, who was aware of the 21-day time limit but chose to seek further information from the Respondent rather than filing the application on time. The Applicant's actions also contributed to the delay, as he did not ensure that his solicitor filed the application within the statutory period. The Commission concluded that, while the solicitor's error was a significant factor, the Applicant's lack of diligence in following up on his application also played a role in the delay. Furthermore, the merits of the application did not strongly support the existence of exceptional circumstances, as the evidence regarding the reasons for the dismissal was unclear and contested. Consequently, the Commission dismissed the application for an extension of time.

Orders