Mr Kierin Ward-Diggins v CSF Industries Pty Ltd - [2025] FWC 1908

[2025] FWC 1908

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Kierin Ward-Diggins
v

CSF Industries Pty Ltd

(U2025/5957)

COMMISSIONER DURHAM

BRISBANE, 3 JULY 2025

Application for an unfair dismissal remedy – jurisdictional objection – out of time –application dismissed.

Mr Kierin Ward-Diggins had been employed as a Construction Manager with CSF Industries Pty Ltd (CSF) since September 2024. On 10 April 2025, Mr Ward-Diggins was summarily dismissed for serious misconduct.

On 14 May 2025, Mr Ward-Diggins filed an application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act).

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 period of 21 days ended at midnight on 1 May 2025. The application was therefore filed 13 days outside the 21-day period. Mr Ward-Diggins seeks an extension of time to make his application. The Respondent opposes this request.

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’. 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]

Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

The requirement that these matters 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 Application.

Reason for the delay

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 of the circumstances must be considered.[3]

Mr Ward-Diggins provided several matters as reasons for the delay in lodging the application. Specifically, he…

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 1908
Decision Date: 3 JULY 2025

CaseChat Overview and Summary

In this case, Mr Kierin Ward-Diggins sought an unfair dismissal remedy after being summarily dismissed from his position as a Construction Manager with CSF Industries Pty Ltd. The dispute was heard by Commissioner Durham in the Fair Work Commission, under the Fair Work Act 2009. Mr Ward-Diggins filed his application for an unfair dismissal remedy 13 days after the 21-day statutory period for such applications had expired. The central legal issue was whether there were exceptional circumstances justifying an extension of the time limit for filing the application.

The court examined various factors to determine if there were exceptional circumstances warranting an extension of time. Mr Ward-Diggins provided several reasons for the delay, including a misunderstanding of the statutory period, caring responsibilities for his son, financial hardship, and issues with his email security settings. However, the Commission found that these reasons did not constitute exceptional circumstances. The misunderstanding of the statutory period was not credible given that Mr Ward-Diggins had sought legal advice and was informed of the correct deadline. His caring responsibilities, while significant, did not prevent him from filing the application within the statutory period. The financial hardship and email issues were not deemed to be exceptional either, as the Commission’s website provides clear guidance on filing applications and financial hardship can be addressed through a waiver of application fees.

In conclusion, the Commission found no exceptional circumstances that justified extending the time limit for filing the application. The absence of an acceptable explanation for the delay, coupled with the lack of prejudice to the employer and the neutral consideration of the merits and fairness, led to the dismissal of Mr Ward-Diggins’ application. The Commission issued an order dismissing the application for an unfair dismissal remedy.

Orders