Mr Marcus Day v Melbourne Chinese Soccer Association Inc., Mr Danny Chan Summary

[2025] FWC 2857

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Marcus Day
v

Melbourne Chinese Soccer Association Inc., Mr Danny Chan

(C2025/6473)

DEPUTY PRESIDENT MASSON

MELBOURNE, 25 SEPTEMBER 2025

Application to deal with contraventions involving dismissal – jurisdictional objections – whether Applicant dismissed – application made outside 21-day time limit – jurisdictional objection upheld – no exceptional circumstances – application dismissed.

On the 4 July 2025, Mr Marcus Day (the Applicant) lodged an application (the Application) pursuant to s 365 of the Fair Work Act 2009 (Cth) (the Act) in which he asserts that the termination of his employment on 29 April 2025 by Mr Danny Chan (the First Respondent) and the Melbourne Chinese Soccer Association Inc. (the Second Respondent) contravened his workplace rights.

In its Form F8A response, the Second Respondent contends that the Applicant was not an employee and was therefore not dismissed within the meaning of s 386(1) of the Act. It further contends in the alternative that the Application was made outside the statutory 21-day period and that no exceptional circumstances exist that would warrant the granting of an extension of time. For the reasons given on transcript in proceedings on 25 September 2025, I determined to deal with the Application solely on the basis that it has been made outside the required 21-day period prescribed in s 366(2) of the Act and that the Applicant requires an extension of time for the making of it.

Section 366(1) of the Act states that a general protections dismissal dispute application must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 366(2) of the Act. The period of 21 days ended at midnight on 20 May 2025. The Application was therefore filed 45 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s 366(2) of the Act.

For the reasons given on transcript in the proceedings, I am not satisfied there are exceptional circumstances that would warrant the granting of an extension of time. I decline to grant an extension of time under s 366(2) of the Act. Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.

The Application is therefore dismissed. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

Appearances:

Marcus Day, Applicant.
R Kannan for the Respondent.

Hearing details:

2025.
Melbourne:

25 September

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission dealt with an application made by Mr Marcus Day against Mr Danny Chan and the Melbourne Chinese Soccer Association Inc. The Applicant alleged that his dismissal contravened his workplace rights under the Fair Work Act 2009. The Respondents argued that the Applicant was not an employee and therefore not dismissed, and that the application was made outside the 21-day period allowed by the Act. The Commission needed to determine whether the application could proceed given that it was made outside the required time period and whether there were exceptional circumstances to grant an extension.

The primary legal issue was whether the application could proceed given that it was made outside the 21-day period stipulated in the Act. The Commission had to determine if the Applicant's dismissal was within the meaning of the Act and if there were exceptional circumstances to justify an extension of time. The Act requires that a general protections dismissal dispute application must be made within 21 days after the dismissal took effect, or within a further period allowed by the Commission. The Commission found that the application was made 45 days after the dismissal took effect, well outside the statutory period.

The Commission considered the statutory provisions and concluded that the application was made outside the required 21-day period and that there were no exceptional circumstances to warrant an extension of time. Therefore, the Commission dismissed the application on the basis that it was made beyond the statutory period and no extension of time was granted. The Commission's decision was based on the strict interpretation of the statutory timeframes and the absence of any exceptional circumstances that would justify an extension.

The application was dismissed, and an order to that effect was issued. The Commission's decision underscores the importance of adhering to statutory timeframes for making applications and the limited circumstances under which extensions may be granted. The dismissal of the application highlights the necessity for applicants to be aware of and comply with statutory deadlines in employment-related disputes.

Mr Marcus Day v Melbourne Chinese Soccer Association Inc., Mr Danny Chan

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established