Vanusha Adihetty v Viva Energy Retail Pty Ltd
[2025] FWC 2846
•24 SEPTEMBER 2025
| [2025] FWC 2844 |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jacob Peter Mortensen
v
68 Pty Ltd Trading As Aston Air Conditioning And Refrigeration
(U2025/11066)
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 24 SEPTEMBER 2025 |
Application for an unfair dismissal remedy - extension of time not granted.
Earlier this morning, I delivered on transcript my decision to dismiss Mr Jacob Peter Mortensen’s application made under section 394 of the Fair Work Act 2009 (the Act). Mr Mortensen seeks an order for a remedy alleging he was unfairly dismissed from his employment with Aston Air Conditioning and Refrigeration (Aston Air). This is an edited version of my decision delivered ex-tempore.
The Respondent filed their form F3 on 21 July 2025 confirming the correct legal name as 68 Pty Ltd trading as Aston Air Conditioning and Refrigeration. I have utilised the discretion afforded to me under s.586 of the Act to amend Mr Mortensen’s application accordingly.
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 the Commission allows pursuant to s.394(3). Mr Mortensen’s employment with Aston Air was terminated with effect from 10 June 2025. Mr Mortensen lodged his application on 3 July 2025, therefore his application was 2 days late.
Each matter in s.394(3) must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I have considered these matters in the context of the application and set out my consideration of each matter below.
The relevant facts in this matter are as follows. On 4 June 2025, Mr Morten was subject to a drug test by Queensland Police Services (QPS). The roadside test identified a “relevant drug” in Mr Mortensen’s saliva. The saliva sample was sent for further analysis by QPS. At the time Mr Mortensen had been driving a company vehicle with a co-worker as a passenger. Later that day Mr Mortensen attended a meeting with the Director of Aston Air during which he admitted to using cocaine. Mr Mortensen was directed to take paid personal leave to assist with his recovery and prepare to attend a subsequent meeting.
On 9 June 2025, as part of his response Mr Mortensen provided an apology claiming that the cocaine in his system was from his weekend use.
On 10 June 2025, Aston Air met with Mr Mortensen and concluded that his actions were in breach of its policies and a wilful and unsafe act, consequently deciding to terminate Mr Mortensen’s employment. In the termination letter provided to Mr Mortensen, Aston Air conclude that Mr Mortensen “placed a fellow employee wilfully at risk, placed the public at risk, the company vehicle and the company reputation in a marked vehicle in uniform at risk when impaired or at a minimum under withdrawal impairment.” Aston Air decided that Mr Mortensen had destroyed any trust and confidence in the relationship by amongst other things putting another employees’ life at risk. Mr Mortensen was dismissed with immediate effect.
Mr Mortensen says he was notified on 1 July 2025 that the subsequent saliva analysis returned a negative result. Mr Mortensen says his parents then contacted the QPS requesting a copy of the formal Certificate of Analysis confirming the negative results. His mother then drove to the police station and obtained a copy of the Certificate of Analysis. After obtaining the results Mr Mortensen made his unfair dismissal application. Mr Mortensen submits that the formal Certificate of Analysis from Queensland Police is, in his view, an essential certificate to be filed with and as part of his application. He submits that the delay in receiving the certificate was out of his control and he is unsure why he did not hear from QPS prior to 1 July 2025.
The reasons relied on by Mr Mortensen for making a late application are not exceptional. If Mr Mortensen believed he had been unfairly dismissed it was open to him at all times to make his unfair dismissal application within the specified timeframe. There is no requirement for Mr Mortensen to submit evidence or in this case the Certificate of Analysis when making an unfair dismissal application. I observe that at no time prior to the termination of his employment had Mr Mortensen indicated that he thought the Certificate of Analysis would come back with a negative result. Mr Mortensen did not consider making an application until he was advised of the negative result by QPS. Other than making the late application he made no other inquiries or attempts to file his unfair dismissal application. Further, when Mr Mortensen became aware of the negative result on 1 July 2025, instead of lodging his application at that time he unnecessarily waited until his mother had obtained a copy of the certificate for him. I am not satisfied that the absence of a Certificate of Analysis provides a reasonable or acceptable explanation for the delay in lodging his unfair dismissal application out of time. Mr Mortensen’s failure to make inquiries about the Commissions unfair dismissal application process and an ignorance of ones rights does not lend itself to a finding of exceptional circumstances. The absence of an acceptable explanation as to why Mr Mortensen lodged his application out of time weighs against a conclusion that there are exceptional circumstances.
I find the following considerations weigh against the granting of an extension of time. Mr Mortensen was notified of the dismissal on the same day that it took effect and therefore he had the benefit of the full 21 days to lodge the unfair dismissal application however he made no inquiries and no attempt to do so. Other than the filing of this application, he took no action to dispute the dismissal.
Aston Air submitted permitting the application to proceed would prejudice the employer due to the introduction and imposition of a new legal liability. Additionally, they would be required to incur further costs to defend the application. A relevant prejudice is one that the employer would not have suffered had the application been made within the time period. I am not persuaded that there would be a relevant prejudice to the employer in defending the matter that would not have arisen had the application been filed within time. I find this to be a neutral factor.
As to the merits of the Application, Aston Air submits Mr Mortensen confirmed during the meeting that took place on 4 June 2025 that he had used cocaine on the weekend prior and had produced a positive result on a drug test that morning during a roadside drug test performed by QPS. Aston Air acted on the information available to them at that time, considering other concerns about Mr Mortensen’s conduct and terminated his employment. Mr Mortensen submits that the dismissal was unfair because although he had admitted to recreational drug use at the time his employment was terminated, nearly a month later he became aware that his second saliva sample sent for laboratory testing produced a negative result. Although Mr Mortensen made no inquiries or attempts to dispute his dismissal and at no time prior to lodging his application did he actively pursue the laboratory results from QPS, he has formed the view that his dismissal is unfair because his subsequent drug test results were negative. In jurisdiction matters where there are contested facts about the merits the Commission does not generally determine the merits of an application. There are few contested facts in this matter, however absent sworn evidence I will treat the merits as neutral.
Aston Air submitted that any employee would be treated in the same way as Mr Mortensen had they been under the same circumstances. Mr Mortensen submits it would be just and equitable to grant an extension, however this appears to be a submission made purely on the basis of his opinion. I do not consider these submissions of the parties relevant to my consideration and in all the circumstances, I do not consider that an issue of fairness as between the Applicant and other persons in a similar position arises. I therefore consider this to be a neutral consideration.
Conclusion
Having considered all of the factors set out in s 394(3), and all of the matters raised by Mr Mortensen I am not persuaded that the requisite exceptional circumstances exist. There is not exceptional or reasonable explanation for the delay in filing the application. None of the factors in s.394(3) weigh in favour of granting an extension. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Accordingly, the application is dismissed. An order[1] to this effect will accompany this decision.
COMMISSIONER
Appearances:
Mr J Mortensen on his own behalf.
Mr S Bradford for 68 Pty Ltd T/A Aston Air Conditioning and Refrigeration
Hearing details:
2025.
Melbourne (video hearing):
September 24.
Printed by authority of the Commonwealth Government Printer
<PR792055>
[1] PR792057.
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