1
Fair Work Act 2009
s.365—General protections
Declan Briggs
v
Workcon (Qld) Pty Ltd
(C2023/2630)
COMMISSIONER HUNT BRISBANE, 4 SEPTEMBER 2023
Application to deal with contraventions involving dismissal – jurisdictional objection –
application made out of time – no exceptional circumstances – application dismissed.
[1] On 9 May 2023, Mr Declan Briggs made an application pursuant to s.365 of the Fair
Work Act 2009 (the Act) alleging that he was dismissed by Workcon in contravention of the
general protection provisions of the Act. Despite Mr Briggs’ objections, I considered it
necessary to make a name change order to correct the name of the respondent to Workcon (Qld)
Pty Ltd (the Respondent) as I am satisfied that is the true name of the employer.
[2] Mr Briggs claimed that he was dismissed by the Respondent on 31 October 2022. The
Respondent denies that Mr Briggs was dismissed on this date or at all. The Respondent’s
position is that Mr Briggs did not respond to any more requests to attend for work after this
time.
[3] Accordingly, there are two jurisdictional issues for consideration before the Fair Work
Commission (the Commission); firstly, should an extension of time be granted to Mr Briggs,
and if the answer is yes, secondly, has Mr Briggs been dismissed?
[4] Section 366 of the Act states:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are
exceptional circumstances, taking into account:
(a) the reason for the delay; and
[2023] FWC 2242
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2242
2
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
[5] For Mr Briggs to have made his application within the statutory time limit of 21 days
after he asserts the dismissal took effect, the application needed to have been filed by 21
November 2022. The application has been made 196 days out of time.
[6] Mr Briggs seeks an extension of time within which to make his application.
Earlier unfair dismissal application
[7] Mr Briggs made an unfair dismissal application to the Commission in matter
U2022/11083. Commissioner Simpson was allocated that matter and on 2 March 2023,
convened a Directions Hearing by telephone on account of his preliminary view that Mr Briggs
had not completed a period of six months of employment with the Respondent and would not
satisfy the minimum employment period to bring an unfair dismissal claim.
[8] Mr Briggs appeared at that Directions Hearing and was supported by his mother, Ms
Vanessa Walker. Mr Briggs is 19 years old. Towards the end of the Directions Hearing, the
Commissioner determined that he was satisfied that the minimum employment period had not
been met and delivered an ex tempore decision dismissing the application. Mr Briggs, supported
by Ms Walker, declared that he did not wish to pursue any other application and wished to
move forward in his life.
General protections application
[9] At some point, Mr Briggs had a change of heart and did decide to pursue a second
application against the Respondent. The application form has been completed by Ms Walker
on Mr Briggs’ behalf, with Mr Briggs only signing his name, writing his name and stating his
capacity to bring the application as “Applicant – skilled labourer”.
Directions issued
[10] Upon the matter being allocated to me, on 20 June 2023, I issued directions to the parties
to file material in respect of the two jurisdictional objections before the Commission. I included
the following correspondence:
“The Commissioner notes the Applicant’s unfair dismissal application was dismissed ex
tempore by Commissioner Simpson on 2 March 2023. The Applicant stated at that
hearing that he did not wish to pursue any action against the Respondent. The Applicant
then did not bring this present application until 9 May 2023, a considerable period of
[2023] FWC 2242
3
time later. The Commissioner advises that the Applicant must demonstrate exceptional
circumstances in respect of the out of time application.”
[11] The parties were informed on 20 June 2023 that I would convene a telephone conference
on 10 July 2023. On 9 July 2023, Mr Briggs sent the following email to chambers:
“I am regretful to say I genuinely just received this last night as my phone and services
had been cut off due to not paying .
I have gained employment and returned to work 3 days ago and unfortunately 11.30am
tomorrow will be impossible due to me being also training hours tomorrow for my roller
and loader licences which I gained last week also.
I also have had a [reacted] incident related to my [relative] last night and will be caring
for him also this week unforeseen circumstances
Please may my case be heard the same date as Vanessa walkers in August 2nd”
[12] On 10 July 2023, the following correspondence was sent to the parties in respect of the
adjournment request:
“…In light of the Applicant’s email, the conference listed today at 11:30am (AEST) is
vacated.
The Commissioner further notes that Mr Briggs has requested that his matter be heard
on the same date as Ms Walker. The Commissioner is not amenable to granting such
request.
Mr Briggs is reminded of the Directions issued by Commissioner Hunt on 20 June 2023,
as attached. Parties of this matter are required to file material in respect of this matter
in preparation for a hearing scheduled on 23 August 2023. With Ms Walker’s hearing
approaching and the facts of both matters appear different, the Commissioner is of the
view that it is not appropriate to hear Mr Briggs’ matter in conjunction with Ms
Walker’s. Accordingly, the Commissioner denies Mr Briggs’ request.
In light of the vacated conference, the parties are expected to comply with the Directions
as attached with Mr Briggs’ material due first tomorrow at 4:00pm (AEST) on
Tuesday, 11 July 2023.”
[13] Mr Briggs failed to file material, as directed, and accordingly the following
correspondence was sent to the parties on 13 July 2023:
“Dear Parties,
Reference is made to the above matter.
As per the Directions issued by Commissioner Hunt on 20 June 2023, and as mentioned
on 10 July 2023, material for the Applicant (such as submissions and a witness
[2023] FWC 2242
4
statement) was due to be filed with the Commission, and served on the Respondent, by
4:00pm (AEST) on Tuesday, 11 July 2023.
The Commission has not received any material from the Applicant, nor has it received
a request for an extension.
Accordingly, the Commissioner lists the matter for non-compliance hearing by
telephone at 11:30am (AEST) on Tuesday, 18 July 2023. The parties are requested to
confirm attendance to participate in the non-compliance hearing.
The Applicant will be required to give evidence as to why he has not complied with the
Commission’s directions to file material in his application. If the Applicant fails to
attend, or his explanation is not satisfactory, the Commissioner may dismiss the
application pursuant to s.587 of the Fair Work Act 2009 for non-compliance and for
want of prosecution.”
[14] On 15 July 2023, Ms Walker sent an email from her email account, purportedly from
Mr Briggs, however the language used is that of Ms Walker (as known by me in Ms Walker’s
own application before the Commission). The following correspondence was sent by my
chambers to the parties on 17 July 2023:
“Dear Parties,
Reference is made to the above matter.
The Commissioner acknowledges receipt of the Applicant’s email below, sent by Ms
Walker. The Commissioner will address the Applicant’s response at tomorrow’s non-
compliance hearing.
The Applicant is expected to give oral evidence tomorrow. The Commissioner is
concerned that much of the material and correspondence in this matter involving Mr
Briggs has been sent by Ms Walker.
The Respondent is copied into this email for service.”
[15] The non-compliance hearing was listed for 11:30am on 18 July 2023. At 10:31am, Ms
Walker sent the following email:
“Due to unforeseen circumstances with our new employer both declan and I will be
unavailable today at 11.30am.
We were told just like workocn , take a day off no more work mate. It’s genuinely what
‘this industry’ is and I can’t risk this job too.
I am unavailable until 5pm daily now also so unsure if we can please please get
Thursday 5pm?”
[2023] FWC 2242
5
[16] Shortly thereafter, the following email was sent from my chambers to the parties:
“Dear Parties,
Reference is made to the above matter.
The Commissioner acknowledges receipt of Ms Walker’s email below, sent on behalf
of Mr Briggs, advising he and Ms Walker will be unavailable to attend today’s non-
compliance hearing.
Please be advised that this is Mr Briggs’ application, and it is Mr Briggs who needs to
give evidence at the hearing.
If Mr Briggs is available at 5:00pm (AEST) on Thursday, 20 July 2023, the
Commission will adjourn the non-compliance hearing until then.
If Mr Briggs is not available, the Commissioner is likely to dismiss the application.”
Non-compliance hearing
[17] On 20 July 2023, I convened a non-compliance hearing by telephone. Mr Briggs
attended, supported by Ms Walker. Mr Leon Coleman, Director, appeared for the Respondent.
[18] Mr Briggs stated that following the dismissal of his unfair dismissal application, his
mother, Ms Walker had a mental breakdown and went onto a mental health plan. Mr Briggs
also attempted suicide. I decided to afford Mr Briggs a further opportunity to file material in
support of his claim. I directed Mr Briggs to file a witness statement by no later than 24 July
2023.
[19] On 24 July 2023, Mr Briggs filed a witness statement to the following effect:
• Ms Walker was admitted to hospital on 6 April 2023 under a psychiatric evaluation
by QPS;
• Mr Briggs was affected by his mother’s mental health predicament;
• Mr Briggs began taking antidepressant medication on or around 26 – 30 March 2023
after attempting suicide;
• Mr Briggs was referred to a psychiatrist;
• At the end of March 2023, Mr Briggs was placed on a mental health care plan and
has taken three different medications, and been put on a waiting list for treatment to
commence;
[2023] FWC 2242
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• Mr Briggs did not know about any emails from the Commission between March
2023 and April 2023 as the home electricity and internet was not available for three
weeks in April 2023.
[20] It should be noted that the Commission would not have had any need to send Mr Briggs
any email in that period of time on account of his unfair dismissal claim having been dismissed
on 2 March 2023.
[21] On the same day Mr Briggs filed his material, email correspondence was sent from my
chambers requiring Mr Briggs to file supporting documents with respect to the medical
treatment he says he had in March and April 2023. He failed to do so, despite my further request
of him on 28 July 2023.
[22] In material filed by the Respondent on 31 July 2023, it was pointed out that at around
the same time Mr Briggs claims he was too unwell to bring this particular application, he made
a workers’ compensation claim on 23 March 2023.
[23] It is noted within material filed by Mr Briggs earlier in this application that he received
a workers’ compensation medical certificate on 31 May 2023, certifying him unfit for a period
of two months. The certificate notes that he was first seen at the practice on 21 March 2023.
Matter listed for hearing
[24] On 28 July 2023, I issued amended directions, listing the matter for hearing, in-person
on 23 August 2023, as had been determined during the non-compliance telephone hearing on
20 July 2023.
[25] On 15 August 2023, Ms Ashley Carroll, HR Advisor of the Respondent provided
evidence of her need to attend a funeral on 23 August 2023. On 18 August 2023, I emailed the
parties, inquiring if a hearing date of 28 August 2023 suited the parties.
[26] On 19 August 2023, Ms Walker emailed to say she would adjust her work schedule to
facilitate Ms Carroll’s request for an adjournment. Mr Briggs emailed to say, “we will let work
know 28th August thankyou”.
[27] On 23 August 2023, correspondence was sent from my chambers reminding Mr Briggs
that any reply material he intended to file had to be filed by 21 August 2023. He was granted
an extension up until 24 August 2023 to file reply material.
[28] On 24 August 2023 at 3:26pm, Mr Briggs sent the following email:
“I’m so confused I read a huge email that told me all the bad I’ve done and never get
things right so case over now I see this email cam someone please tell me what the heck
is happening”
[29] On 24 August 2023 at 3:37pm, the following email was sent to Mr Briggs, copying in
the parties and Ms Walker:
[2023] FWC 2242
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“Dear Mr Briggs,
Reference is made to the above matter.
The matter remains listed for an in-person hearing at 10:00am (AEST) on Monday, 28
August 2023.
You are expected to attend the hearing on this date which will be held at Level 14 of 66
Eagle Street, Brisbane QLD 4000.
Should you fail to attend the hearing on Monday, 28 August 2023, the Commissioner
will commence the hearing without you. The Commissioner is likely to determine the
application in your absence.
It is therefore important that you attend the hearing.”
[30] On 25 August 2023, a digital court book, consolidating all of the parties’ material was
emailed to the parties.
Hearing on 28 August 2023
[31] Mr Briggs failed to attend the hearing on 28 August 2023. Numerous phone calls were
made to Mr Briggs’ and Ms Walker’s telephones without success. The following text message
was sent to Mr Briggs at 10:27am on 28 August 2023:
“The Commission has attempted to contact you regarding the hearing of your matter listed
today at 10:00am. Please call [redacted] urgently and ask for the Associate.
DO NOT REPLY BY SMS”
[32] At approximately 10:45am, I instructed my Associate to inform the Respondent
representatives who had attended for the hearing that I had decided to vacate the hearing.
[33] At 11:59am on 28 August 2023, the following email was sent to the parties and to Ms
Walker:
“Dear Parties,
Reference is made to the above matter.
Please be advised that the above matter was listed for hearing at 10:00am (AEST) today
at Brisbane. Mr Briggs and Ms Walker were notified of this listing on 17 August 2023
and 23 August 2023. Mr Briggs acknowledged and advised he will let his new
employers know.
A notice of listing was also sent on 24 August 2023 providing the details of the hearing.
[2023] FWC 2242
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The Commissioner notes that at 10:00am today, neither Mr Briggs nor Ms Walker were
in attendance. Several attempts were made to contact Mr Briggs and Ms Walker by
telephone and text message to confirm whether Mr Briggs would be attending the
hearing. However, no phone calls were made to the Associate’s phone and the hearing
was thereby vacated at 10:45am. There will not be any further hearing in relation to this
matter.
As a result of the above, the Commissioner now reserves her decision for the matter of
C2023/2630. Accordingly, the parties are requested not to engage in further submissions
and filing of evidence.
In respect to Ms Walker’s application, the Commissioner had made it clear that if Ms
Walker did not attend the hearing in Mr Briggs’ matter, the Commissioner will reserve
her decision in Ms Walker’s matter (following receipt of the telephone records from the
Respondent). The Commissioner does not wish to hear further from the parties except
to receive the telephone records from the Respondent.”
[34] At 12:14pm on 28 August 2023, Ms Walker sent the following email:
“We were emailed that we have taken too long and didn’t reply or answer correctly so
I’m sorry I didn’t know I still had a chance. I’ll reply after work”
[35] At 12:29pm on 28 August 2023, the following email was sent to the parties in this
matter, and to Ms Walker:
“Dear Ms Walker,
Reference is made to the above matter.
The Commissioner acknowledges receipt of your email below and is unable to
understand how you came to the conclusion that the hearing was vacated.
You were notified on multiple occasions that the Commissioner will grant you the
opportunity to provide additional evidence in respect to your application at the
conclusion of the hearing for Mr Briggs’ application which was listed today. A notice
of listing was sent to you on Thursday, 24 August 2023 providing the details of the
hearing, including details of when and where the hearing will occur.
The Commissioner further notes that Mr Briggs contacted chambers on 24 August 2023
after receiving the Notice of Listing expressing the same confusion as you. Chambers
wrote back shortly thereafter advising that the hearing is proceeding as scheduled, and
the Applicant was expected to attend the hearing. You were copied into this
correspondence.
You were also sent correspondence on 25 August 2023 with a copy of the Digital
Hearing Book for Mr Briggs’ application. This email contained references of a hearing
to take place on Monday.
[2023] FWC 2242
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In light of the above, the Commissioner considers you have been provided multiple
opportunities to provide evidence. Accordingly, the Commissioner will not accept any
further evidence from the Applicants in both matters.”
Material relevant to whether there has been a dismissal
[36] It is noted that the following material was filed by the parties as to whether there has
been a dismissal in respect of Mr Briggs’ employment on 31 October 2022, as claimed by him.
“31 October 2022
Hey Declan, it’s Jamie from Workcon Labour Hire.
You’ve been offered a job on Monday at Broad Ferny Grove
I’ve just sent the link to begin the sign up process. If you have any questions regarding
the application forms feel to contact me any time.
Once completed please let me know and I will call you back to discuss the job on
Monday
Thanks”
Extension of time - applicable case law
[37] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group
Pty Ltd1 where the Full Bench said:
“[10] It is convenient to deal first with the meaning of the expression ‘exceptional
circumstances’ in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of
FWA considered the meaning of the expression “exceptional circumstances” in s.394(3)
and held:
‘[5] The word “exceptional” is relevantly defined in The Macquarie
Dictionary as “forming an exception or unusual instance; unusual;
extraordinary.” We can apprehend no reason for giving the word a meaning other
than its ordinary meaning for the purposes of s.394(3) of the FW Act.’
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of
principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was
considered by Rares J in Ho v Professional Services Review Committee No 295 a case
involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
‘23. I am of opinion that the expression ‘exceptional circumstances’ requires
consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR
372 at 379 Brennan and Dawson JJ considered a statutory provision which
entitled either a parole board or a court to specify a shorter non-parole period
than that required under another section only if it determined that the
circumstances justified that course. They said of the appellant’s circumstances:
[2023] FWC 2242
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“Although no one of these factors was exceptional, in combination they
may reasonably be regarded as amounting to exceptional circumstances.”
24. Brennan and Dawson JJ held that the failure in that case to evaluate the
relevant circumstances in combination was a failure to consider matters which
were relevant to the exercise of the discretion under the section (167 CLR at
379). Deane J, (with whom Gaudron and McHugh JJ expressed their
concurrence on this point, albeit that they were dissenting) explained that the
power under consideration allowed departure from the norm only in the
exceptional or special case where the circumstances justified it (167 CLR at 383,
397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J
referred with approval to what Lord Bingham of Cornhill CJ had said in R v
Kelly (Edward) [2000] QB 198 at 208, namely:
“We must construe “exceptional” as an ordinary, familiar English adjective,
and not as a term of art. It describes a circumstance which is such as to
form an exception, which is out of the ordinary course, or unusual, or
special, or uncommon. To be exceptional a circumstance need not be
unique, or unprecedented, or very rare; but it cannot be one that is
regularly, or routinely, or normally encountered.”
26. Exceptional circumstances within the meaning of s 106KA(2) can 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 are seen as exceptional. Thus, the sun and moon appear in
the sky everyday and there is nothing exceptional about seeing them both
simultaneously during day time. But an eclipse, whether lunar or solar, is
exceptional, even though it can be predicted, because it is outside the usual
course of events.
27. It is not correct to construe ‘exceptional circumstances’ as being only some
unexpected occurrence, although frequently it will be. Nor is it correct to
construe the plural ‘circumstances’ as if it were only a singular occurrence, even
though it can be a one off situation. The ordinary and natural meaning of
‘exceptional circumstances’ in s 106KA(2) includes a combination of factors
which, when viewed together, may reasonably be seen as producing a situation
which is out of the ordinary course, unusual, special or uncommon. And, the
section is directed to the circumstances of the actual practitioner, not a
hypothetical being, when he or she initiates or renders the services.’
[13] In summary, the expression “exceptional circumstances” has its ordinary
meaning and requires consideration of all the circumstances. To be exceptional,
circumstances must be out of the ordinary course, or unusual, or special, or uncommon
but need not be unique, or unprecedented, or very rare. Circumstances will not be
exceptional if they are regularly, or routinely, or normally encountered. Exceptional
circumstances can include a single exceptional matter, a combination of exceptional
[2023] FWC 2242
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factors or a combination of ordinary factors which, although individually of no
particular significance, when taken together are seen as exceptional. It is not correct to
construe “exceptional circumstances” as being only some unexpected occurrence,
although frequently it will be. Nor is it correct to construe the plural “circumstances” as
if it were only a singular occurrence, even though it can be a one off situation. The
ordinary and natural meaning of “exceptional circumstances” includes a combination of
factors which, when viewed together, may reasonably be seen as producing a situation
which is out of the ordinary course, unusual, special or uncommon.” [Endnotes not
reproduced]
[38] For exceptional circumstances to arise as contemplated by s.366(2) of the Act, it is not
necessary that the applicant for that extension of time be overtaken by a catastrophic event.
Reasons for delay in the category of extreme events are not necessary to meet the test. All of
the factors outlined in s.366(2) of the Act must be considered and weighed when deciding
whether or not exceptional circumstances, circumstances sufficient to support an exception,
exist.
[39] An applicant for an extension of time has an onus to adduce evidence in support of
matters which that applicant asserts constitute exceptional circumstances.2
[40] The test of “exceptional circumstances” establishes a “high hurdle” for an application
seeking an extension of time to file an application for the Commission to deal with a dismissal
dispute.3 A decision whether to extend time under s.366(2) involves the exercise of a
discretion.4
[41] I now consider these matters in the context of the application, noting how difficult the
matter has been on account of Mr Briggs’ failure to file material as directed, and his failure to
attend the hearing on 28 August 2023.
The reason for delay – s.366(2)(a)
[42] The reason for the delay in lodging an application is a factor that must be considered.
The Act does not specify what reason or reasons for delay might favour granting an extension,
although decisions of the Commission have referred to an acceptable or reasonable
explanation.5 The absence of an explanation for any part of the delay will usually weigh against
an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay
will usually weigh in an applicant’s favour, though it is ultimately a question of degree and
insight.6
[43] A reasonable explanation for the delay is not needed for the whole of the period of delay,
or may in fact not be required at all, if the circumstances are otherwise exceptional.7 The period
of the delay requiring explanation is the period commencing immediately after the time for
lodging an application has expired, ending on the day on which an application is ultimately
lodged. That said, regard may be had to any circumstances from the date the dismissal took
effect when assessing whether an explanation for the delay is acceptable or credible.8
[44] I have had regard to the fact that Mr Briggs promptly filed an unfair dismissal claim in
2022. That application was appropriately dismissed by Commissioner Simpson on 2 March
[2023] FWC 2242
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2023 in an ex tempore decision while Mr Briggs was on the telephone, supported by his mother.
Accordingly, I am prepared to accept that for the period up until 2 March 2023, there were
exceptional circumstances as to why he would not bring this particular application as he already
had an application on foot.
[45] At the time Commissioner Simpson dismissed his unfair dismissal application, Mr
Briggs stated that he wanted to move on with his life and would not bring any further
applications. Yet, he did, and he took more than two months to do so. In the month of March
2023, Mr Briggs made a workers’ compensation claim.
[46] Mr Briggs has stated that during March and April 2023 he has been severely depressed
on account of his mother’s mental incapacity at that time. I have had regard to the attempts he
says he has taken on his life.
[47] Mr Briggs has failed to provide any medical evidence of the seriousness of his stated
medical condition, other than a letter from his general practitioner dated 31 May 2023 to
WorkCover which does not assist with any diagnoses or relevant period of incapacity. There is
no medical evidence to support Mr Briggs’ claim that he was unable to bring this application
before the Commission between the period of 2 March 2023 and 9 May 2023. It is also noted
that Ms Walker has made her own general protections application to the Commission on 2 May
2023, having had her own unfair dismissal application dismissed by Commissioner Simpson
on 28 April 2023.
[48] It is noted that while Ms Walker might have been incapacitated for a period of time from
March 2023, which has had an impact on Mr Briggs, Ms Walker read Commissioner Simpson’s
decision on or after 28 April 2023, and promptly brought a general protections claim on 2 May
2023. Mr Briggs waited until 9 May 2023 to bring his own application, yet has not provided
any suitable explanation for the delay.
[49] On account of the fact that Mr Briggs was able to bring a workers’ compensation claim
in the relevant period, but not bring this application, and his failure to provide appropriate
medical evidence supporting his stated reasons for the delay, the reasons for the delay provided
are not, in my view, reasons that are supportive of an extension of time being granted.
Any action taken by the person to dispute the dismissal – s.366(2)(b)
[50] Where an applicant takes action to contest a termination, it will put the employer on
notice that its decision to terminate the applicant’s employment is actively contested and may,
depending on all the circumstances, favour the granting of an extension of time.9
[51] Mr Briggs made a claim for unfair dismissal and was jurisdictionally prevented from
pursuing his claim on account of not meeting the minimum employment period. I accept that
bringing the unfair dismissal application demonstrates that he took action to dispute the
dismissal.
[52] His statement during the hearing in which Commissioner Simpson dismissed his
application was genuinely given, yet two months later Mr Briggs sought again to dispute the
dismissal.
[2023] FWC 2242
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[53] I consider that Mr Briggs’ unfair dismissal application made in November 2022 supports
an extension of time being granted. I consider that Mr Briggs’ statement in March 2023 that he
did not want to pursue any claims against the Respondent to dispute the dismissal following his
unfair dismissal application being dismissed counts against an extension of time being granted.
Prejudice to the employer (including prejudice caused by the delay) – s.366(2)(c)
[54] On account of the purported dismissal occurring on 31 October 2023, and Mr Briggs
waiting until 9 May 2023 to bring his application, I consider there is some prejudice to the
Respondent if the time limit is extended. I come to this conclusion even having regard to the
period up until 2 March 2023 which may be excused. This does not support an extension of
time being granted.
The merits of the application – s.366(2)(d)
[55] It is well established that, “it will not be appropriate for the Tribunal to resolve contested
issues of fact going to the ultimate merits for the purposes of taking account of the matter in
s.366(2)(d).”10
[56] Mr Briggs has failed to provide any evidence as to the merits of his application. He is
faced squarely with an email from the Respondent on the day that he was dismissed at [36],
offering him further work. He has chosen not to give evidence relevant to that email, noting the
usual practice of the Respondent in offering work to employees.
[57] I consider that the merits of the claim is a matter that does not support an extension of
time being granted.
Fairness as between the person and other persons in a like position – s.366(2)(e)
[58] The criterion of “fairness as between the person and other persons in a similar position”,
was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm,11 where
it was said:
“…cases of this kind will generally turn on their own facts. However, this consideration
is concerned with the importance of an application of consistent principles in cases of
this kind, thus ensuring fairness as between the Applicant and other persons in a similar
position, and that consideration may relate to matters currently before the Commission
or matters which had been previously decided by the Commission.
[59] I am not satisfied that the criterion of fairness between Mr Briggs and other persons in
a similar position weigh strongly in favour of either party, as such, I consider it a neutral
consideration.
Conclusion
[60] Having taken into account each of the factors referred to in s.366(2)(a) to (e) of the Act,
I am not persuaded that there are exceptional circumstances warranting consideration of
[2023] FWC 2242
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whether I should exercise my discretion to allow a further period within which an application
may be lodged by Mr Briggs.
[61] Accordingly, the application for an extension of time is refused and the substantive
application is dismissed.
[62] An order giving effect to this decision will be issued separately [PR765847].
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
PR765845
1 [2011] FWAFB 975.
2 Smith v Canning Division of General Practice [2009] AIRC 959.
3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288at [21].
4 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.
5 Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36].
6 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [35]-[45].
7 Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288.
8 Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287at [12]; Ozsoy v Monstamac Industries Pty
Ltd [2014] FWCFB 2149 at [31] –[33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963;
Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149.
9 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
10 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [36].
11 [2015] FWC 8885 at [29].
THE CORS THE CO & AUSTRALII W MMISSION E SEAL THE
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