Simon Mitchell v Fantech Pty Ltd - [2025] FWC 257

[2025] FWC 257

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Simon Mitchell
v

Fantech Pty Ltd

(U2024/15344)

COMMISSIONER PERICA

MELBOURNE, 24 JANUARY 2025

Application for unfair dismissal remedy

On 26 November 2024, Mr. Simon Mitchell was dismissed from his employment with Fantech Pty Ltd (Fantech).

On 18 December 2024, he made an application claiming he was unfairly dismissed from his employment. Unfair dismissal applications are required to made within 21 days of the dismissal taking effect. His application was one day late.

The Commission has power to extend the time for making the application if it is satisfied that there are exceptional circumstances under s 394(2)(b).

For the following reasons, I have decided to grant an extension of time for the making of this application.

Was the application made within 21 days after the dismissal took effect?

The 21-day period does not include the day on which the dismissal took effect. The dismissal took effect on 26 November 2024. The final day of the 21-day period was 17 December 2024 and ended at midnight on that day.

Mr. Mitchell’s application was filed on 18 December 2024. It was made 1 day late. I therefore need to consider whether to extend the period to make the application.

I may allow a further period for an unfair dismissal application if I am satisfied there are exceptional circumstances, taking into account:

(a) Mr. Mitchell’s reasons for the delay;

(b) when Mr. Mitchell first became aware of the dismissal after it had taken effect;

(c) any action taken by Mr. Mitchell to dispute the dismissal;

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

(e) the merits of the application; and

(f) fairness as between Mr. Mitchell and other persons in a similar position.

Each of these matters must be considered in assessing whether there are exceptional circumstances.[1] I will now consider each of these factors in turn.

Reason for the delay

Submissions and evidence of Mr. Mitchell

In his written submissions Mr. Mitchell gave a series of reasons why there was a delay in the filing of his unfair dismissal application:

· He was of the “belief that he had met the 21-day deadline” and was “not aware that the deadline had expired until he was notified by [the Commission];[2]
· The fact that “for approximately six months I have been homeless”. This meant:
oHe did not always “have access to electronic devices and the means to charge them”;[3]
oIt was “sometimes essential to spend money on things such as fast food over groceries or items of maintenance for car which was his primary source of shelter”;[4]
oThe irregularity of his day to day existence along with the loss of routine because of his dismissal “had a knock-on effect of causing a breakdown of his relationship with his partner”.[5] It was not until he reconciled his relationship with his partner he was “realistically in a position to file an application”.

· He suffered from “severe depression” and did not…

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 257
Decision Date: 24 JANUARY 2025

CaseChat Overview and Summary

Simon Mitchell lodged an application for unfair dismissal with the Fair Work Commission against his former employer, Fantech Pty Ltd, one day after the statutory deadline. The Commission has the discretion to extend the time for making an unfair dismissal application if it is satisfied that there are exceptional circumstances under s 394(2)(b) of the Fair Work Act 2009. The Commission must consider various factors, including the reasons for the delay, when the applicant first became aware of the dismissal, any action taken by the applicant to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness between the applicant and others in a similar position.

In this case, the Commission found that Mr. Mitchell's delay in lodging his application was due to a confluence of factors, including his homelessness, severe depression, and financial difficulties. The Commission accepted that these circumstances impeded his ability to research and lodge his unfair dismissal application promptly. The Commission also noted that Mr. Mitchell had taken no steps to dispute his dismissal prior to lodging the application, which counts against an extension of time. However, the Commission found that the merits of the application and the prejudice to the employer were neutral factors, and that the application was only one day late. Considering all the factors, the Commission was satisfied that there were exceptional circumstances to justify an extension of time.

The Commission extended the time for filing the application to the day it was actually filed, and a case management hearing and directions will follow. This decision highlights the importance of considering the individual circumstances of each case when deciding whether to extend the time for making an unfair dismissal application. The Commission's discretion under s 394(2)(b) allows for flexibility in exceptional cases, ensuring that applicants are not unfairly disadvantaged by circumstances beyond their control.

Orders