Stephen Lowther v Workcon (Qld) Pty Ltd - [2025] FWC 2283

[2025] FWC 2283

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Stephen Lowther
v

Workcon (Qld) Pty Ltd

(U2025/10083)

DEPUTY PRESIDENT LAKE

BRISBANE, 6 AUGUST 2025

Application for an unfair dismissal remedy – application made outside of statutory timeframe – no exceptional circumstances – application dismissed

Mr Stephen Lowther (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in stating that he was unfairly dismissed by Workcon (Qld) Pty Ltd (the Respondent).

There was some confusion from the Applicant about the effective date of dismissal. However, for reasons stated below, I have found that the Applicant was dismissed effective from 21 February 2025. The Applicant lodged his application on 16 June 2025. The Application was lodged 94 days, or 3 months and two days, outside the statutory time limit prescribed by s.394(2) of the Act.

The question before me is to determine whether an extension of time should be granted pursuant to s.394(3) of the Act.

Directions were issued regarding the question of whether the Applicant should be granted an extension of time. The Applicant did not file any submissions and did not attend the hearing. The hearing was held before me on 5 August 2025. The Respondent was represented by Ms Kelly Hallatt of Harrisons HR as a paid agent. The matter was determined in the Applicant’s absence under s.600 of the Act.

Effective date of dismissal

When the Applicant was informed by Deputy President Easton’s Chambers that his application was approximately 3 months out of time, he replied that he was actually dismissed in November of 2024, making his application 6 months out of time.

It appears that the Applicant is referring to the last date he worked a shift for the Respondent, rather than the date of his dismissal.

The Respondent’s evidence is that the Applicant was employed as a casual and from approximately November 2024, he did not accept new shifts. Consequently, on 21 February 2025, he was sent a termination letter (which he included with his Form F2) as follow:

February 21st, 2025.

Stephen Lowther

Dear Stephen,

Re: Termination of Employment

We regret to inform you that your employment with Workcon will be terminated, effective from February 21st, 2025. This decision has been made after careful consideration and is based on reduction in work hours.

We appreciate the contributions you have made during your time with us. Should we have any new unforeseen employment opportunities become available in the future, we will reach out and contact you providing you're the best candidate for the role.

Please find below the details concerning your final pay and any entitlements you may be eligible for:
Outstanding Leave: Rostered Days Off (RDO)
You will receive payment for all RDO up to and including September 21st, 2025, which will be processed on the next pay run.
Should you have any questions or require further information regarding…

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 2283
Decision Date: 6 AUGUST 2025

CaseChat Overview and Summary

Stephen Lowther brought a claim against Workcon (Qld) Pty Ltd alleging he was unfairly dismissed. The dismissal took effect on 21 February 2025, but Lowther lodged his application with the Fair Work Commission on 16 June 2025, outside the 21-day statutory time limit. The primary issue for the Deputy President to determine was whether exceptional circumstances existed that would justify extending the time for Lowther to lodge his claim. Lowther argued that he was threatened by the site manager, Ryno, who was not an employee of Workcon, which delayed his ability to lodge the claim. Additionally, Lowther claimed financial instability due to his car breaking down and accessing his superannuation via a hardship claim. Workcon argued that Lowther did not raise his concerns until lodging the claim and that the delay prejudiced their ability to gather contemporaneous evidence.

The Deputy President considered the criteria for exceptional circumstances, including the reason for the delay, whether Lowther was aware of the dismissal, any action taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness to others in a similar situation. Lowther did not provide a credible reason for the delay, as he did not explain why he could lodge the claim in June 2025 but not in March 2025. Additionally, Lowther did not take any action to dispute the dismissal before lodging the claim. The delay prejudiced Workcon, as it was difficult to gather evidence from staff who had moved on since Lowther last worked for them. The merits of the application appeared weak, and there was no evidence to suggest that Lowther was treated unfairly compared to others in a similar situation. Consequently, the Deputy President concluded that there were no exceptional circumstances to warrant an extension of time, and the application was dismissed.

Orders