Timothy Hunter v Hope Community Services Ltd - [2025] FWC 326

[2025] FWC 326

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Timothy Hunter
v

Hope Community Services Ltd

(C2024/7557)

COMMISSIONER P RYAN

SYDNEY, 5 FEBRUARY 2025

Application to deal with contraventions involving dismissal – application made out of time – circumstances not exceptional – application dismissed

Introduction and Background

This decision concerns an application by Mr Timothy Hunter (Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).

The Applicant states that his employment with Hope Community Services Ltd (Respondent) was terminated with effect from 25 September 2024. The Application was made on 17 October 2024.

An application for the Commission to deal with a dismissal dispute must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows.[1] The period of 21 days ended at midnight on 16 October 2024. Therefore, the Application was made 1 day outside the 21-day period. The Applicant asks the Commission to allow a further period for the Application to be made.

Upon the allocation of the matter to my Chambers, I directed the parties to file materials in support of, or in opposition to, the Applicant’s application for an extension of time.

The matter was heard on 20 December 2024. I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was self-represented. The Respondent was represented by Ms V Stamper.

The following material was admitted into evidence:

· Witness Statement of Scott Roffey, the Respondent’s Manager, People and Culture (Exhibit R1).

For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.366(2).

Exceptional Circumstances

The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[2] Exceptional circumstances may 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 can be considered exceptional.[3]

The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for 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.

Keep reading for free

Create a free CaseChat account to read Timothy Hunter v Hope Community Services Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] FWC 326
Decision Date: 5 FEBRUARY 2025

CaseChat Overview and Summary

In the matter of Timothy Hunter v Hope Community Services Ltd, the Fair Work Commission (FWC) was tasked with deciding an application for the Commission to handle a dismissal dispute, filed by Mr. Timothy Hunter against his former employer, Hope Community Services Ltd. The application was lodged one day beyond the statutory 21-day limit, necessitating a determination on whether exceptional circumstances justified an extension of time. The primary legal issue before the Commission was whether the late filing could be excused due to exceptional circumstances under section 366(2) of the Fair Work Act 2009.

The Commission considered various factors, including the reason for the delay, any action taken by the Applicant to dispute the dismissal, the potential prejudice to the employer, the merits of the application, and fairness between the Applicant and others in similar positions. The Applicant claimed that the delay resulted from technical difficulties, specifically an email that did not send initially, but he did not provide any evidence to substantiate this claim. The Commission found that the lack of credible evidence and inconsistencies in the Applicant's statements regarding the timing of the undelivered email and subsequent resending of the application weakened the case for an extension. Additionally, the Applicant had not taken any action to dispute the dismissal other than filing the application, which also weighed against a finding of exceptional circumstances. While the Respondent did not argue that it would be prejudiced by the delay, the Commission noted that absence of prejudice was not a factor tipping in favor of granting an extension. The merits of the dismissal dispute could not be fully assessed without an extension, and considerations of fairness pointed towards consistency in similar cases where unsubstantiated technical difficulties were not deemed exceptional.

Ultimately, the Commission concluded that the Applicant had not demonstrated exceptional circumstances warranting an extension of time. The application was dismissed as there was no basis to allow a further period for the application to be made under section 366(2) of the Act. The Commission's decision underscored the high threshold for establishing exceptional circumstances and the importance of providing credible evidence to support claims of late filing due to technical difficulties.

Orders