1
Fair Work Act 2009
s.394—Unfair dismissal
Geoffrey Whittaker
v
Eurocold Pty Ltd
(U2023/7223)
DEPUTY PRESIDENT LAKE BRISBANE, 9 OCTOBER 2023
Application for an unfair dismissal remedy – application made outside of statutory timeframe
– application dismissed.
[1] Mr Geoffrey Whittaker (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
(Cth) (the Act) in relation to the termination of his employment with Eurocold Pty Ltd (the
Respondent).
[2] The Applicant’s employment with the Respondent commenced on 12 September 2022.
The Applicant states he was dismissed on 13 July 2023 and that his dismissal took effect the
same day.
[3] The Applicant lodged his application on 6 August 2023, 3 days outside the statutory 21-
day time limit prescribed by s.394(2) of the Act.
[4] The question before me is therefore whether the Applicant should be granted an
extension of time to lodge his application pursuant to s.394(3) of the Act. The Respondent
opposes the granting of an extension of time.
[5] Directions were issued to determine this question and material was filed by each party.
A hearing was held before me on 5 October 2023.
Should a further period be granted?
[6] Section 394(3) of the Act sets out the circumstances in which the Commission may
allow a further period for an application involving dismissal to be made:
“(3) The FWC may allow a further period for the application to be made by a person
under subsection (1) if the FWC is satisfied that there are exceptional circumstances,
taking into account:
(a) the reason for the delay; and
[2023] FWC 2588
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2588
2
(b) whether the person first became aware of the dismissal after it had taken
effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a like position.”
[7] The test of ‘exceptional circumstances’ establishes a high bar for an Applicant to meet.1
In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the
Commission in Tamu v Australia for UNHCR),2 the Full Bench of Fair Work Australia stated
that:
“[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 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.”
[8] Although Nulty concerned the expression ‘exceptional circumstances’ in the context of
s.365 of the Act, its reasoning applies to s.394(3).
[9] For the Applicant’s application to proceed, I must be satisfied that there are “exceptional
circumstances” for the Applicant to obtain an extension of time under s.394(3) of the Act.
Consideration
Reason for the delay (s.394(3)(a))
[10] The Act does not specify what ‘reasons for delay’ might suggest, however it is settled
that the explanation for such a delay must be an acceptable3 or a reasonable explanation.4 In
Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:
“The absence of any 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 the applicant’s favour, though, as we mention later, it is a
question of degree and insight. However, the ultimate conclusion as to the existence of
exceptional circumstances will turn on a consideration of all of the reliant matters and
the assignment of appropriate weight to each.” 5
[2023] FWC 2588
3
[11] It is important to have regard to any circumstances from the date the dismissal took
effect when assessing whether the explanation proffered for the delay is an acceptable or
credible explanation.6
[12] The Applicant stated the following reasons for delay:
“I tried to have conversations about my dismissal with Layton [Roycroft] on 2 occasions
and then spoke to Clayton [Nel] who is higher than Layton asking him about the
dismissal and he was going to investigate and get back to me as I said that I was unfairly
dismissed but did not get a response, I waited for that response and as I said didn’t get
one so I lodged the application but I also needed the help from my wife to assist as I
was mentally not fit to do it as I just had the events playing on my mind constantly and
it was making me upset and angry. This is why my application was 3 days late. I have
the recorded messages from Layton and Clayton on the events that took place.”7
[13] In Giles v Coal Train Australia Pty Ltd, Deputy President Asbury stated that the
Applicant is required to provide evidence to establish the nature and the impact of any
exceptional circumstances.8
[14] The Applicant submitted that 7 business days after his dismissal, on 24 July 2023 at
4:27pm during a phone call with Mr Clayton Nel, around 14 minutes into the conversation, he
mentioned that he had sought advice. He stated: ‘I feel like I have been unfair[ly] dismissed to
be honest, I have had some advice, and this is why I am doing what I am doing.’
[15] Given that the Applicant had sought advice within the 21-day timeframe and knew about
the unfair dismissal process, it is reasonable to assume that he was or ought to have been aware
of the necessity to file an application within the 21-day timeframe. As such, waiting for a
response from the Respondent is not an exceptional circumstance which justifies a delay. The
Applicant also stated that he was not mentally fit to submit the application but did not provide
medical evidence to support this.
[16] The Fair Work Commission website (through which the Applicant had lodged the
application electronically) clearly states that ‘you must apply within 21 days after the date of
your dismissal. It is important to get your application to us on time. You can apply even if you
don’t have all the information yet. You can send us more details and supporting documents
after you have applied’.
[17] Based on the above, it is clear that the Applicant was or ought to have been aware of the
timeframe and has not provided reasons for delay which could be considered an exceptional
circumstance. This consideration does not weigh in favour of a finding of exceptional
circumstances.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
[18] The Applicant was aware of his dismissal on 13 July 2023 when he received his
termination letter. Furthermore, the Applicant acknowledged that he was terminated when
calling the Respondent on 24 July 2023, indicating he was aware of the dismissal.
[19] This consideration does not weigh in favour of a finding of exceptional circumstances.
[2023] FWC 2588
4
Action taken to dispute the dismissal (s.394(3)(c))
[20] The Applicant gave evidence that he had attempted to explain his versions of the events
leading to dismissal and why he had engaged in the alleged misconduct during the 42-minute
phone call on 24 July 2023 with Mr Nel. It appeared that the Applicant did try to dispute his
dismissal.
[21] This consideration weighs in favour of a finding of exceptional circumstances.
Prejudice to the employer (s.394(3)(d))
[22] The Respondent did not address that an extension could potentially cause a degree of
prejudice. I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
[23] In Kornicki v Telstra-Network Technology Group,9 the Commission considered the
principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time
period for lodgement. However, we wish to emphasise that a consideration of the merits
of the substantive application for relief in the context of an extension of time application
does not require a detailed analysis of the substantive merits. It would be sufficient for
the applicant to establish that the substantive application was not without merit.”
[24] Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s
claim. Based on the evidence before me, my preliminary view is that the application is not
without merit, but there is not sufficient information to assess whether there is merit in the
current application before me. The Applicant has put forward submissions as to the
circumstances leading to the conduct he was dismissed for, which may have merit in other
jurisdictions, or under other applications but which may not have sufficient merit to dislodge
the Respondent’s assertion that there was a valid reason for the dismissal. I therefore consider
this factor as a neutral consideration as it is sufficient for the Commission to establish the
substantive application was not without merit.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
[25] The Commission may have consideration to fairness in matters of a similar kind that are
currently before the Commission or have been decided in the past.10
[26] In McBride v JA Krieger Forestry Services,11 Deputy President Colman found that a
person being unaware of the requirement to lodge an unfair dismissal application within 21
days of the dismissal is not an acceptable reason for delay.
[27] In Cedric Moses Kato v Hub24 Management Services Pty Ltd,12 Commissioner Ryan
noted that the absence of an acceptable explanation without evidence to support the exceptional
[2023] FWC 2588
5
circumstance weighs against a conclusion of acceptable circumstances even when an
application is 1 minute late.
[28] I find that the Applicant has not put on evidence to suggest unfairness in these
circumstances, and as such this consideration does not weigh in favour of a finding of
exceptional circumstances.
Conclusion
[29] Having regard to all the matters set out above, I am not satisfied that exceptional
circumstances exist in this matter.
[30] I order that the jurisdictional objection that the application was lodged out of time is
upheld and the application be dismissed with no extension of time being granted.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR766955
1 Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 at [14].
2 [2019] FWC 25.
3 Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974 at [9].
4 Roberts v Greystances Disability Services; Community Living [2018] FWC 64 at [16].
5 [2018] FWCFB 901 at [39].
6 Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty
Ltd [2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.
7 Email correspondence from Applicant to Commission dated 8 September 2023.
8 Giles v Coal Train Australia Pty Ltd [2020] FWC 2274 at [38].
9 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
10 Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818 at [31].
11 [2021] FWC 6284 at [5].
12 [2023] FWC 1377 at [16] referring to Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 at
[39].
WORK COMMISSION THE SENS
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb901.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc1974.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb901.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb287.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb2149.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb6963.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc2274.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc6818.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc6284.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1377.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb901.htm
