Mr Nicholas Blakey v Southern Collision Repairs Pty Ltd
[2025] FWC 2487
•22 AUGUST 2025
| [2025] FWC 2487 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Nicholas Blakey
v
Southern Collision Repairs Pty Ltd
(U2025/9573)
| COMMISSIONER THORNTON | ADELAIDE, 22 AUGUST 2025 |
Application for an unfair dismissal remedy– extension of time – whether exceptional circumstances exist justifying an extension of time – no exceptional circumstances – extension of time not granted – matter dismissed.
This decision concerns an application by Mr Nicholas Blakey (Mr Blakey or the Applicant) to extend the time for filing his unfair dismissal application pursuant to s.394(3) of the Fair Work Act 2009 (the Act).
Mr Blakey’s employment with Southern Collision Repairs Pty Ltd (the Respondent) was terminated on 29 April 2025. Mr Blakey’s application was lodged with the Fair Work Commission (the Commission) on 5 June 2025.
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 allowed by the Commission considering the matters relevant under section 394(3).
In this instance, the period of 21 days concluded on 20 May 2025. The application was filed 37 days after the Applicant’s dismissal took effect, making the application 16 days out of time.
The Applicant requests the Commission grant an extension of time for his application under s.394(3) of the Act. It is necessary that the Applicant be granted an extension of time for his application to proceed.
Mr Blakey was represented by a lay advocate, Mr Narroway from an organisation called ‘Second Chances SA’. The Respondent was represented by the Motor Trade Association. Mr Blakey gave evidence on his own behalf and Mr Treleggan, an owner of Southern Collision Repairs, gave evidence for the Respondent.
This matter was listed for hearing on 25 July 2025. The Applicant did not attend the hearing and could not be contacted about his whereabouts. Mr Narroway was not prepared to continue as Mr Blakey’s representative if the hearing was to proceed in his absence. The matter was relisted and proceeded on 5 August 2025. The parties made various allegations against each other about conduct directed to the opposing party following the Applicant’s dismissal that caused me concern. Consequently, I decided it was appropriate to proceed to hear the matter by telephone.
For the reasons set out in this decision, I find that there are no exceptional circumstances arising in this matter, considering the factors I am required to consider in section 394(3) of the Act. Consequently, I cannot exercise discretion to grant an extension of time for Mr Blakey to file his unfair dismissal claim.
Background facts and evidence
Mr Blakey commenced employment with the Respondent on 19 December 2023 as a spray painter in their collision repair business.
During the period of his employment, Mr Blakey commenced an intimate relationship with a co-worker. That relationship ultimately broke down. The breakdown of the relationship was relevant to the conduct relied upon by the Respondent to terminate the employment of the Applicant.
On 28 April 2025 at 12:43pm, Mr Treleggan sent Mr Blakey a show cause notice, alleging that Mr Blakey had engaged in serious misconduct and directing him to respond by close of business on 29 April 2025.
On the same day, Mr Narroway assisted Mr Blakey to prepare a response to the allegations. The response to the show cause letter was sent by Mr Narroway, on behalf of Mr Blakey, at 5:31pm on 28 April 2025. Mr Blakey strongly denied the allegations, asserted that he had not been offered sufficient time to respond to the allegations, that the employer should take time to investigate the allegations and accused Mr Treleggan of misconduct.
In the same correspondence, Mr Blakey purported to accept an offer he said was made by Mr Treleggan to pay him two weeks’ wages to leave his employment and said that if Mr Treleggan did not transfer the funds to him in 24 hours, “I will be forced to take action upon you for unfair dismissal and commence proceedings in the courts.”
On 29 April 2025, Mr Treleggan sent a letter of termination to Mr Blakey (with a copy to his representative), referencing serious misconduct as the basis for “dismissal without notice”.
Mr Blakey says that Mr Treleggan had “attempted to terminate” his employment on a number of occasions in the past but always changed his mind and continued to employ the Applicant.
Mr Blakey, in his evidence, said that it took him about two weeks after his dismissal to realise that Mr Treleggan was not going to change his mind about the dismissal on this occasion.
He said after this time, he had “lost the plot” and “just didn’t know what [he] was doing”[1] because his relationship with his co-worker had broken down and he had lost his job. Mr Blakey told the Commission that he did not have a place to live in this time and was staying with friends and family. Mr Blakey said that in the period after his dismissal his “brain wasn’t working … that is the best way [he] can describe it”.[2]
Mr Blakey confirmed in his evidence that Mr Narroway had called him a number of times in the period following his dismissal, but that he was so affected by the events that had occurred that he could not engage with Mr Narroway and did not answer his attempts at contact or return his calls: “I remember him calling me … I was getting missed calls from everyone … I just didn’t feel like talking to anyone.”[3]
On 3 May 2025, Mr Blakey accepts that he sent a text message to Mr Treleggan asking for assistance in quoting for a repair job. Mr Blakey told the Commission that following his dismissal he was discussing taking over a business operated by a friend and had undertaken some work at his workshop, accepting two repair jobs in the weeks following his dismissal. However, Mr Blakey told the Commission that he was not able to take over the business given his compromised mental health and the work performed was limited to those two jobs.
This evidence was consistent with another text message sent by Mr Blakey to Mr Treleggan on 14 May 2025, where Mr Blakey asked for Mr Treleggan’s advice about where to find a “rear door for [a] 2020 ford ranger.”
On both occasions Mr Treleggan responded to the text messages, providing the advice sought by Mr Blakey.
In addition, on 8 May 2025, Mr Blakey sent another text message to Mr Treleggan which said: “Hope things are going well …[a]nd [you] made right decision, I was going to quit that Monday anyway, few reasons, communication was often poor and hazey (sic)”. In his evidence, Mr Blakey said that the text message was meant as sarcasm and he did not intend to convey to Mr Treleggan that he was actually going to resign if his employment had not been terminated.
Mr Blakey gave evidence about his poor mental health in the period following his dismissal. When asked about how his mental health issues were manifesting after his dismissal, Mr Blakey said:
“the best way to describe it is just blocking everything out. And then … I don’t have to deal with the emotions that come with … losing your partner, losing your job, losing this, being homeless … all in the same week, you know it’s a lot to process and it was too much for me. I was just blocking everything out.”[4]
In addition, Mr Blakey told the Commission that he was making mistakes while he was trying to work due to poor concentration, using drugs as a coping mechanism, but managing to attend regular drug and alcohol counselling, and was “driving around in circles, didn’t answer my phone … I wasn’t even answering calls from my mum”[5] and that he “was just numb … and hazy”.[6]
Mr Blakey submits that he was unable to take any action to file his unfair dismissal claim until he could manage to see Mr Narroway in person, which was after the 21 day statutory time period had elapsed.
Once he was instructed by Mr Blakey, Mr Narroway promptly filed the unfair dismissal claim on behalf of Mr Blakey.
Consideration
Section 394(3) of the Act provides that the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances. When determining whether exceptional circumstances exist, the Commission must take into account the following factors:
(a)the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c)any action taken by the person to dispute the dismissal; and
(d)prejudice to the employer (including prejudice caused by the delay); and
(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 exceptional circumstances exist in the context of this matter.
For an extension of time to be granted, the Commission must first find that exceptional circumstances exist. The relevant legal test to find whether exceptional circumstances exist is set out in the matter of Nulty v Blue Star Group Pty Ltd[7]:
“To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”[8]
Whether exceptional circumstances exist
Reason for the delay
Mr Blakey relies on his poor mental health as the reason he did not file his unfair dismissal within the statutory time period. His description of his experience of his mental health conditions following the dismissal are set out above. In essence, Mr Blakey described a period of feeling overwhelmed by the loss of his job and relationship and consequently engaged in avoidant behaviours. I accept that Mr Blakey gave evidence to the best of his ability, however he was not able to give specific evidence about his symptoms over the relevant period and how they prevented him from filing his application. Mr Blakey described avoiding contact from other people, including Mr Narroway for at least the first two weeks following his dismissal, but was not clear about when he re-established connection with Mr Narroway.
Mr Blakey filed some medical evidence from his General Practitioner, Dr Mustafa, and Psychologist, Ms Lim supporting his inability to file his application because of mental health issues. Neither treating practitioner attended the hearing to give evidence.
Dr Mustafa, in his very short report of 6 July 2025, says that he assessed the Applicant on that day and Mr Blakey was unable to lodge his unfair dismissal claim because of “anxiety” secondary to his dismissal.
Ms Lim, in her more detailed report of 10 July 2025, says the Applicant presented to her on 7 July 2025, “with Adjustment Disorder, which developed in the context of a reported unfair dismissal from his workplace.” Ms Lim set out a list of symptoms arising from the adjustment disorder, including: low mood and tearfulness, difficulty concentrating and making decisions and reduced motivation and withdrawal from usual activities. She said “[t]hese symptoms have significantly impacted [the Applicant’s] daily functioning, particularly in his capacity to manage tasks requiring executive functioning, including planning, organising appointments, and submitting necessary paperwork within expected timeframes.”
I note that Mr Blakey did not present to Dr Mustafa and Ms Lim until 6 and 7 July 2025 respectively, being approximately ten weeks after his dismissal. The opinions offered by Mr Blakey’s medical practitioners about his inability to file his unfair dismissal claim within the statutory time limit, carry little weight as evidence of his capacity during the period of delay because they were obtained some time after the expiration of the 21 day time limit and after he filed his claim.
Contradicting Mr Blakey’s claim that he was so unwell that he could not file his claim, is the evidence of Mr Blakey that he engaged in some work in the period following his dismissal, during the 21 day statutory time period.
I acknowledge that the period of delay to be considered when determining whether there was a credible reason for the delay is the period following the expiration of the 21 day statutory time period, however, as found by the Full Bench of the Commission in Diotti v Lenswood Cold Stores Co-op Society T/A Lenswood Organic[9]: “while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances.”[10]
In this case, the conduct of Mr Blakey in engaging in work and having discussions with a friend about taking over his business, occurring within the statutory time period, is relevant to considering the explanation of the reasons for delay for the period after the 21 day time limit expired. Given his admitted capacity to undertake some work, I am not persuaded that Mr Blakey was unable to file his unfair dismissal claim or give instructions to his established representative to file on his behalf within the statutory time period.
In addition, the evidence given by Mr Blakey about his mental health conditions and their symptoms lacked specificity and it is difficult to understand what he says were his symptoms and level of incapacity in the relevant period.
In determining that the reason provided by Mr Blakey for the delay in filing his claim for unfair dismissal is not a compelling reason, I have also taken into account the evidence of Mr Blakey that he received a number of calls from Mr Narroway after his dismissal but did not answer them or return the calls. I accept the Respondent’s submission[11] that all Mr Blakey needed to have done to ensure his application was filed on time was to speak to Mr Narroway and give him instructions to file the application. There is considerable evidence that Mr Narroway was involved in assisting Mr Blakey from at least the show cause correspondence, but likely prior to that. The evidence is clear that Mr Narroway was provided with the show cause correspondence, drafted the response to the show cause process and was copied into the email attaching the letter of dismissal.
I also accept the Respondent’s submission that this case can be distinguished from one where the Applicant was self-represented and did not know how to advance his claim. Mr Blakey was represented by a lay person, but a lay person who had some understanding of the unfair dismissal process. Mr Narroway, on Mr Blakey’s instructions, communicated in his show cause response that should the proposed dismissal occur and Mr Blakey not receive two weeks’ pay from the Respondent, Mr Blakey would “be forced to take action upon you for unfair dismissal and commence proceedings in the courts.”[12] This demonstrates that Mr Narroway was aware that Mr Blakey may be able to file such a claim and by extension that Mr Blakey was also aware, given that he gave Mr Narroway instructions to send the letter to his employer. Mr Blakey, in his evidence denied he had an understanding that he could file an unfair dismissal claim but accepted he gave Mr Narroway instructions to send the show cause correspondence putting the Respondent on notice about an unfair dismissal claim.
However, Mr Blakey also said in his evidence that he did not understand there was a time limit in which to file his claim, and Mr Narroway argued in his closing submission that this was a matter relevant to the reason for delay. It has been made clear in numerous decisions of the Commission that ignorance of the time limit is also not a reasonable explanation for the delay.[13]
I do not accept the Respondent’s submission that Mr Narroway should have otherwise acted to file the claim within the statutory timeframe. Mr Blakey was clear that he did not speak with Mr Narroway during the statutory time period to give instructions, despite Mr Narroway’s efforts to contact him, and it is not for Mr Narroway to take it upon himself to file the claim without instructions from the Applicant. Representative error was not asserted by the Applicant as a reason for the delay in filing the claim and on the facts of this case there is no such error.
Mr Blakey has not persuaded me that he has an acceptable reason for the delay in filing his claim. His own evidence of any incapacity arising from poor mental health following his dismissal was lacking in detail. The medical evidence supporting a level of incapacity that prevented Mr Blakey filing his claim was obtained so long after the relevant time that it is not reliable evidence of Mr Blakey’s incapacity at the relevant time. Mr Blakey’s engagement in work soon after his dismissal demonstrated that he either had the capacity to file his claim or provide instructions to his representative to do so within the statutory time period.
Further, Mr Blakey’s avoidance of addressing the dismissal is not a circumstance that is unusual or out of the ordinary, and an instinct likely to arise for many employees whose employment is terminated.
The lack of a credible reason for the delay weighs heavily against the granting of an extension of time.
Any action taken by the person to dispute the dismissal
Mr Blakey, with the assistance of his representative, arguably put the Respondent on notice that any dismissal from employment may result in the filing of this claim in the show cause response. The Applicant appeared to be under a misapprehension that the show cause letter of 28 April 2025 was a letter of termination. This is likely attributable to the fact that the covering email of the show cause letter stated: “Please find attached the termination letter for Nick Blakey.”[14] However, at the time of sending the letter at 5:31pm on 28 April 2025, the Applicant had not yet been terminated by the Respondent. Even though the notice to the Respondent about the filing of an unfair dismissal claim came before the Applicant was in fact terminated, it seems to me to be an action taken to dispute the dismissal, given the Applicant’s reasonable misapprehension.
The Applicant had contact with the Respondent on a number of occasions after his dismissal. The evidence before me is the three text messages between Mr Blakey and Mr Treleggan in the period following the dismissal that I have set out above.
Two of those messages, sent on 3 and 14 May 2025, were requests for assistance with work from Mr Blakey to Mr Treleggan. The other message was a message from Mr Blakey advising Mr Treleggan that he had made the right decision to terminate Mr Blakey because he intended to imminently resign anyway.
I find it difficult to accept Mr Blakey’s assertion that the comments about Mr Treleggan making the right decision because he intended to resign were sarcastic and did not have the meaning the words on a plain reading appear to have. I cannot see the sarcasm, especially when considered with Mr Blakey’s comments that he intended to resign in any event and the additional statement in the message: “I feel sad that you couldn’t see what’s real and what was not so real”. The correspondences between Mr Blakey and Mr Treleggan following the dismissal that are before me, are not correspondences in which Mr Blakey disputes his dismissal.
Mr Blakey took action to dispute the impending dismissal when he put the Respondent on notice that he may file an unfair dismissal claim if he were dismissed. However, when weighed with the conduct that followed the dismissal, it cannot be said that Mr Blakey took action to dispute his dismissal after the dismissal took effect, other than filing this claim.
Given these competing circumstances, this factor is neutral in my decision.
When the Applicant first became aware of the dismissal
There is no dispute that the Applicant was made aware of his dismissal on 29 April 2025. He confirmed in evidence that both he and his representative were emailed the letter of termination and he saw the email on the day it was sent.[15] Mr Blakey had the full statutory period to file his claim.
This factor weighs against a finding of exceptional circumstances and a granting of an extension of time.
Prejudice to the employer, including prejudice caused by the delay
The Respondent asserts prejudice to them arising from the filing of the application itself, in particular the time involved in responding to the application that is taking away from the operations of its business and the financial cost of defending the application made out of the statutory time period.[16] This prejudice is no greater than any Respondent experiences in responding to an unfair dismissal application.
The Respondent has not cited any prejudice particular to the late filing of the application. As such, this factor is neutral in my decision.
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[17] Further, the primary consideration is whether the Applicant has an arguable case.[18]
The Respondent alleges that Mr Blakey was dismissed because he removed property of another employee without consent and that a text message sent to Ms Treleggan, a director of the Respondent, amounted to sexual harassment of his co-worker and former partner. Mr Blakey denies the allegations.
There is insufficient information before me to form even a preliminary view about the merits of the matter. There is, however, nothing before me that suggests the Applicant does not have an arguable case.
This consideration weighs somewhat in favour of granting an extension of time.
Fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[19] considered this criterion and said:
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”[20]
I have considered the relevant matters I am required to consider under the Act. This matter turns on its own facts, and as such, this criteria is neutral in my decision.
Conclusion
I have considered the relevant matters as required by section 394(3) of the Act. Weighing those factors, I find that no exceptional circumstances exist in this matter.
Weighing heavily against a finding of exceptional circumstances is the reason for delay. I do not accept that Mr Blakey was so incapacitated by his mental health issues that he was unable to file his claim or more relevantly, instruct Mr Narroway to file it on his behalf, within the statutory 21 day time period. Even on his own evidence, Mr Blakey was confused and overwhelmed and consequently avoided engaging with the matter, despite Mr Narroway’s efforts to assist him.
Combined with the consideration that Mr Blakey had the benefit of the full statutory time period in which to file his claim, I am not persuaded that exceptional circumstances exist. The fact of my preliminary finding that the Applicant has an arguable case on the merits of the matter, does not weigh significantly against the other considerations to persuade me to find otherwise.
As I have not found that exceptional circumstances exist, I am unable to exercise discretion to extend the time for Mr Blakey to file his application.
Mr Blakey’s application for an unfair dismissal remedy is dismissed.
COMMISSIONER
Appearances:
S Narroway on behalf of the Applicant, N Blakey.
S Reardon of the Motor Trade Association, with J Treleggan on behalf of Southern Collision Repairs Pty Ltd.
Hearing details:
Adelaide (by telephone)
5 August
2025.
[1] Audio recording of hearing at Part 2: 7:22.
[2] Ibid at Part 2: 29:14.
[3] Ibid at Part 2: 7:52 – 8:08.
[4] Ibid at Part 2: 9:05-9:25.
[5] Ibid at Part 2: 26:05.
[6] Ibid at Part 2: 27:37.
[7] [2011] FWAFB 975.
[8] Ibid at [13].
[9] [2016] FWCFB 349.
[10] Ibid at [31].
[11] Audio recording of hearing at Part 3: 25:30.
[12] Applicant’s show cause response dated 28 April 2025.
[13] See Deysel v Electra Lift Co. [2025] FWC 2289 at [5]; Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].
[14] Email sent by Mr Teleggan to Mr Narroway on 28 April 2025 at 12:43pm.
[15] Audio recording of hearing at Part 2: 6:54.
[16] Respondent’s submissions at 1g.
[17] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at paragraph [14].
[18] Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[19] [2016] FWCFB 6963.
[20] Ibid at paragraph [41]. See also Higgins v FQM Australia Nickel Pty Ltd[2023] FWC 750.
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