Stephen Trifyllis v Nine Entertainment Co. Pty Ltd - [2025] FWC 754

[2025] FWC 754

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Stephen Trifyllis
v

Nine Entertainment Co. Pty Ltd

(C2025/596)

COMMISSIONER SIMPSON

BRISBANE, 17 MARCH 2025

Application to deal with contraventions involving dismissal – jurisdictional objection – application filed out of time – Application for extension of time dismissed.

On 23 January 2025, Mr Stephen Trifyllis (Mr Trifyllis / the Applicant) applied to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for an application to deal with a general protections dispute involving dismissal. The Respondent in the matter was named as Nine Entertainment Co. Pty Ltd (the Respondent).

The Respondent raised a jurisdictional objection that the application was filed outside the 21-day statutory time limit. The application was filed 109 days out of time.

On 12 February 2025, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objection. A jurisdictional hearing was held on 17 March 2025.

Mr Brian AJ Newman, a paid agent at 1800Advocates Pty Ltd was granted leave under s.596(2)(a) to appear on behalf of the Applicant, and Mr Jarrad Parker, Executive Counsel at the Respondent appeared on behalf of the business.

Rhonda Louise Longworth, People Solutions Lead, Case Management provided a witness statement[1] dated 20 February 2025 for the Respondent. Mr Trifyllis provided an initial statement on his own behalf[2] dated 28 February 2025, and a supplementary statement[3] dated 14 March 2025. Mr Trifyllis was not required for cross examination. Ms Longworth was briefly cross examined.

Background and Evidence

The Applicant commenced working for the Respondent on 13 October 2022 in the role of Sales Executive in the Total Audio Team.

Ms Longworth was not challenged on her evidence that in mid-2024, the Respondent undertook a review of its national Radio Sales team to address operational inefficiencies and reduce costs. As part of this review, the Applicant’s position was identified for redundancy. As the Applicant was on leave in Europe at that time, any consultation was postponed until his return.

On 6 September 2024, the Applicant attended a meeting wherein he was notified of the termination of his position. As part of this meeting, it was claimed by the Respondent the redundancy process was discussed with him, as were the possibilities for redeployment. The Applicant gave unchallenged evidence that he was not consulted about alternatives to redundancy. The Respondent does not dispute that the Applicant was told that there were no suitable alternative positions with the Respondent at that time.

On 9 September 2024, the Applicant received a letter from the Respondent, advising that his role was being made redundant and that his last day of employment with the Respondent would be Friday, 13 September 2024. The Applicant was paid 1 week in lieu of notice on termination of his employment as well as his other outstanding entitlements and an ex-gratia payment of $2,615.38. The Applicant was 67 years old at the…

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 754
Decision Date: 17 MARCH 2025

CaseChat Overview and Summary

The case of Stephen Trifyllis v Nine Entertainment Co. Pty Ltd was heard by Commissioner Simpson of the Fair Work Commission. The Applicant, Mr Trifyllis, filed an application under section 365 of the Fair Work Act 2009, seeking to contest the dismissal he suffered from his employment with the Respondent, Nine Entertainment Co. Pty Ltd. The Respondent objected to the application on the basis that it was filed 109 days beyond the 21-day statutory time limit, and as such, the application was out of time. The jurisdictional hearing took place on 17 March 2025, where the Applicant was represented by Mr Brian AJ Newman and the Respondent by Mr Jarrad Parker. A witness statement from Rhonda Louise Longworth, the People Solutions Lead, Case Management for the Respondent, was provided and accepted as evidence.

The legal issue before the court was whether there were exceptional circumstances that would justify the extension of time for the Applicant to file his application. The court needed to consider the reason for the delay, 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. The Applicant argued that there were exceptional circumstances due to a misrepresentation by the Respondent, the discovery of a similar role after his dismissal, and emotional distress caused by the abrupt nature of the dismissal. The Respondent countered that these reasons were insufficient to justify the extension of time and that the delay was due to the Applicant's own inaction.

The court considered the evidence and submissions from both parties and concluded that there were no exceptional circumstances present in this case. The Applicant's reasons for the delay were not deemed to be out of the ordinary, unusual, special, or uncommon, and therefore did not constitute exceptional circumstances. The court noted that even if 'exceptional circumstances' were established, there remains discretion to grant or refuse an extension of time. The court found that the reason for the delay, the lack of action taken by the Applicant to dispute the dismissal, and the considerable period of delay, all weighed against granting an extension of time. The merits of the application were also found to be weak, as the Applicant's arguments did not appear to give rise to a prima facie case of unlawful adverse action. Fairness between the Applicant and others in a similar position was not specifically addressed by either party.

As a result, the court dismissed the application for an extension of time and, consequently, the application itself. The dismissal of the application means that the Applicant's claims regarding his dismissal will not be heard by the Commission. An order dismissing the application will be issued separately and concurrently with this decision.

Orders