s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made out of time - circumstances not exceptional - application dismissed

• [1] This decision concerns an application by Ms Alyssa Gray (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) (Application).

• [2] The Applicant states that her employment with Pandora Jewelry Pty Ltd (Respondent) was terminated with effect from 23 January 2025. The Application was made on 20 February 2025.

• [3] Section 394(2) of the FW 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 Fair Work Commission (Commission) allows pursuant to s.394(3). The period of 21 days ended at midnight on 13 February 2025. The Application was therefore made 7 days outside the 21-day period. The Applicant asks the Commission to allow a further period for the Application to be made.

• [4] The matter was heard on 23 April 2025. The Applicant was self-represented. The Respondent was represented by its Human Resources Director, Ms M Makina.

• [5] For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.394(3).

• [6] On or about 17 August 2009, the Applicant commenced employment with the Respondent in the role of Operations Administration Coordinator.

• [7] In her 2023 end of year performance review, the Applicant was rated as "developing", meaning the Applicant had not met the required performance standards over the previous 12 months. In early-2024, the Respondent decided to place the Applicant on a performance improvement plan (PIP).

• [8] For a number of reasons, including the Applicant suffering a stroke in mid-2024 which necessitated a 2-month absence, the commencement of the PIP was delayed.

• [9] In September 2024, the Applicant returned to work and performed her usual duties and hours, although the Applicant was taking ongoing medication and required regular routine medical checks.

• [10] In mid-October 2024, the Respondent proceeded to commence the PIP for a period of 3 months. During a 'mid-point' check in early-December 2024, the Applicant was informed that significant improvement was required.

• [11] In January 2025, the Respondent formed the view that the Applicant had not met the required standards. On 21 January 2025, the Respondent held a meeting with the Applicant in which it advised the Applicant of the outcome of the PIP and that it was proposing to terminate the Applicant's employment. The Applicant was given the opportunity to provide a preliminary response to the PIP.

• [12] On 23 January 2025, a further meeting was held where the Applicant provided a response by reading a prepared statement. After considering all relevant information, including the Applicant's response, the Respondent decided to terminate the Applicant's employment.

• [13] The Applicant's last day of employment was 23 January 2025. The Applicant received a payment of four weeks' pay in lieu of notice. It is relevant to note that the Applicant has raised a number of concerns with the PIP process, including whether the standards she was required to meet were fair and that the Respondent did not action the PIP in accordance with its own guidelines.

• [14] Approximately 7 to 10 days after her dismissal, the Applicant conducted a 'google search' searching "if I was to submit an unfair dismissal claim, how many days do I have to submit it" and learnt that a 21-day time limit applied to unfair dismissal applications. The Applicant stated that she did not research where to lodge an unfair dismissal application but had heard of the Fair Work Ombudsman (FWO).

• [15] On 5 February 2025, the Applicant registered a 'My Account' with the FWO and lodged an online enquiry through that account. The online form is titled "Enquiry" and contains the reference number. In response to a field stating: "You need information about", the Applicant selected the response of "1. Unfair Dismissal". In the field stating: "Your other workplace issues or questions", the Applicant provided the following response:

I worked at Pandora Jewellery Australia's Head Office for 15.5 years. On Monday, January 20, 2025, my director scheduled a Formal Performance Review for the next day. I had been placed on a three-month PIP (Performance Improvement Plan) in October 2024 after receiving a "developing" rating for my end of year performance of 2023 from my then-manager. I believe my dismissal was unfair, as proper PIP protocols were not followed. False KPI accusations were made and I was assigned tasks outside my role and expertise. This came after I returned from two months of medical leave due to a stroke. Despite expressing feeling overwhelmed before and after my leave, I received little support. I believe my manager intentionally set me up for failure due to a personal agenda.

• [16] On 7 February 2025, a FWO representative unsuccessfully attempted to contact the Applicant. The Applicant stated that she did not receive any message or notification from the FWO. However, the representative of the FWO made the following entry on the Applicant's My Account:

Thank you for submitting your My Account enquiry. We have attempted to contact you on February 7th at 9:09am. Due to the complexity your enquiry, we require further information and to speak to you over the phone. Please contact the Fair Work Infoline on 13 13 94 so that we can further assist you.

• [17] At approximately 11:43am on 20 February 2025, and after not having received any response from the FWO, the Applicant telephoned the FWO to seek an update and was advised that an application for unfair dismissal must be made with the Commission.

• [18] At approximately 12:01pm, the Applicant telephoned the Commission. The Application was made later that day at approximately 3:53pm.

• [19] As noted above, the Application was made 7 days beyond the 21-day time limit.

• [20] 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.[1] 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.[2]

• [21] The requirement that there be exceptional circumstances before time can be extended under s.394(3) 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.

• [22] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(f) fairness as between the person and other persons in a similar position.

• [23] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.

• [24] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an unfair dismissal application.[3]

• [25] I now consider these matters in the context of the application.

• [26] The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, however all of the circumstances must be considered.[4]

• [27] In response to question 1.4 of the Application, the Applicant provided the following explanation for the delay:

I initially filed an unfair dismissal claim with the Fair Work Ombudsman (Inquiry 3605983) on February 6, 2025, well within the 21-day submission deadline. However, upon following up with the Ombudsman on February 20, I was informed that my claim should have been submitted to the Fair Work Commission instead.

While I acknowledge this was an error on my part, I genuinely believed at the time that I had lodged the claim correctly. Given that my initial submission was made within the required timeframe, I respectfully request that my case still be considered.

• [28] Prior to the allocation of this matter to my Chambers, the Applicant made the following preliminary submission:

I would like to request that my case still be considered, as I believe there are exceptional circumstances that warrant its acceptance despite the delay.

On February 5 2025, I initially lodged an unfair dismissal claim with the Fair Work Ombudsman, believing it to be the correct entity. At the time of submission, the website indicated that I would receive a response within 10 business days. When I did not receive a response by February 20 2025, I contacted the Ombudsman via phone. During this call, I was informed that I had submitted my claim to the incorrect entity and was provided with the contact details for the Fair Work Commission.

Immediately after this, I called the Fair Work Commission to seek guidance. The representative confirmed that my claim had indeed been submitted to the wrong entity. Upon receiving this clarification, I promptly lodged my claim with the Fair Work Commission on February 20 2025.

Although the response from my initial inquiry states that an attempt was made to contact me on February 7 2025, I have no record of a missed call on my phone. Had I been aware that my claim was submitted to the wrong entity at that time, l would have taken immediate action to rectify the situation.

I have attached two supporting documents from my Fair Work Ombudsman account that detail my inquiry history.

While I acknowledge this was an administrative error on my part, I acted in good faith and genuinely believed my initial submission was correctly lodged. Given that my claim was originally submitted within the required timeframe, I respectfully request that my case still be accepted for consideration.

I appreciate your time and understanding. Please let me know if any further information is required.

• [29] In the proceedings before me, the Applicant also submitted that her health deteriorated following her dismissal and that, combined with the side effects of her medication, caused her to be confused about where an unfair dismissal application is to be made. The Applicant submitted that she feels 'terrible' everyday and made the 'application' on 5 February 2025 because she did not want to miss the 21-day time limit.

• [30] In support of her medical condition, the Applicant relied on a letter from her general practitioner which listed her medical condition history and current medication with the most recent prescription date.

• [31] The Applicant submits that her 'application' to the FWO was made within 21-days and therefore, she should be granted an extension of time. The Applicant relied on three decisions of the Commission in support of her case.[5]

• [32] Having regard to the materials and evidence before, I do not accept that the enquiry made through the FWO My Account was an unfair dismissal application. On any reading, the online form clearly states it is an enquiry relating to further information about one or more topics selected by the person completing the form. While I accept the Applicant stated that she believed her dismissal was unfair, that is in the context of the Applicant seeking further information from the FWO about unfair dismissal. There is nothing in the text of the enquiry that suggests the Applicant was making an application or doing anything other than seeking information.

• [33] Furthermore, I do not consider the Applicant has satisfactorily explained how it was that she turned her mind to and researched the time limit for the making of an unfair dismissal application but did not turn her mind to where such an application is to be made. As the Commission has observed on numerous occasions, the results of an internet search of the type undertaken by the Applicant clearly state that an application must be lodged with the Commission within 21 days.

• [34] In relation to medical incapacity, in Victor Blanco v White Bathroom,[6] Deputy President Easton set out a helpful summary of the relevant authorities in the context of an application for an extension of time as follows:

[44] Sometimes an applicant's medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant's mental illness and in other cases the Commission has not found exceptional circumstances.

[45] In Roberts v Westech IT Solutions Pty Ltd. Senior Deputy President O'Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the Applicant's depression. The Applicant provided advice from his doctor that included details of the Applicant's clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the Applicant also said he had been "given the run around by the phone system which took some time to navigate around", the effect of which appears to have been made worse by the Applicant's mental health.

[46] Similarly in Beard v Valley Industries Limited Deputy President Saunders found that there were exceptional circumstances "as a result of the significant deterioration in his mental state shortly after his dismissal, [the applicant] was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal." In that matter the Applicant's claim was supported by medical evidence from his GP, including evidence that two different medications prescribed to the Applicant that had negative side effects. The Deputy President noted that "after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission".

[47] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person's life, but that such responses and consequences are not unusual.

[48] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the Applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however "[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period." The Full Bench affirmed the finding at first instance that the medical evidence "did not positively demonstrate that the Appellant's depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame" and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O'Callaghan in Roberts but found "the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context."

[49] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant's evidence from her treating psychologist concerning her "major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder" primarily by reference to the psychologist's assessment of the Applicant's capacity to act. The Full Bench endorsed the finding at first instance that on the evidence "the appellant's mental state did not prevent her capacity to engage in day to day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay."

[50] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that it is very difficult for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit without proper and specific medical evidence.

[51] In summary the following principles apply:

(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);

(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the Applicant's capacity to lodge the application within the statutory time limit (per Roberts, Beard and Underwood);

(iii) the evidence should positively demonstrate that the Applicant's depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Beard, Underwood and Merhi); and

(iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).

• [35] In Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd,[7] a Full Bench of the Commission stated:

[26] There was no medical evidence concerning the reason for delay in filing the Application between the expiry of the 21-day period on 18 January 2023 and when the application was filed on 9 February 2023. The absence of any such evidence left the Deputy President with no basis upon which she could find there where was a credible explanation for that period of delay.

[27] In an appeal of a decision that dealt with the granting of an extension of time for a late application for an unfair dismissal remedy, the Full Bench in Australian Postal Corporation v Lili (Karen) Zhang (Zhang) was required to similarly consider medical evidence advanced in support of the claim that the applicant in that matter had been incapacitated by trauma, stress and depression. The Full Bench relevantly stated as follows in relation to the absence of direct medical evidence going to the period of delay:

"[21] Drawing on the above, it does not appear that Ms Zhang was incapacitated for the period January 2015 until 24 April 2015 when her application was received by the Commission when, based on her own submissions, she was attending interviews for jobs. Nor does it appear that she was incapacitated prior to 20 September 2014 when she collected her possessions from Australia Post. More significantly, however, it is not clear to us on what basis the Commissioner felt qualified to make a determination that Ms Zhang suffered from PTSD in the immediate aftermath of her termination.

[22] In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application."

[28] The Full Bench's comments in Zhang stand for the proposition that more than lay person opinion is required to support a claim that a person was medically incapacitated such that they could not have filed an application for a general protections dismissal or unfair dismissal application earlier than they did. We concur with the Full Bench's comments in Zhang that 'compelling medical evidence' is required to support a conclusion that the reason for the delay was due to the individual's medical condition. The Deputy President in the present matter had no medical evidence before her, let alone 'compelling medical evidence', to explain the delay in filing the Application. Were the Deputy President to have accepted the Appellant's opinion that she was medically incapacitated between 28 December 2022 and 9 February 2023, the Deputy President would in our view have fallen into the same error identified by the Full Bench in Zhang.

• [36] In Woolworths Limited v Lin,[8] a Full Bench of the Commission found that medical evidence that was generalised and did not address an applicant's capacity to make an unfair dismiss application was not sufficient to explain the reason for the delay.[9]

• [37] The authorities set out above are clear that if a medical condition or incapacity is relied on, there should be compelling medical evidence demonstrating that it had a material impact upon an applicant's capacity to make an application within the statutory time limit and that an applicant's self-assessment of their medical or psychological incapacity is unlikely to be sufficient.

• [38] In this matter, there is no medical evidence that speaks to the Applicant's incapacity to make the Application within the 21-day period. The extent of any medical evidence is a list of medical conditions and medication history. There is no information regarding the capacity of the Applicant at any relevant time or information regarding the side effects of the medication. Moreover, there is no evidence of any deterioration of her health in the period following her dismissal, even though the list of medication suggests that the Applicant has attended the general practitioner during the 21-day period to receive updated prescriptions.

• [39] The decisions cited by the Applicant do not assist her. Each of those decisions can be distinguished from the circumstances of this matter. In RCR Engineering, the applicant lodged an application for unfair dismissal in the Western Australian Industrial Relations Commission. In both Quatius Logistics and Beard v Valley Industries Limited, there was medical evidence of medical conditions and/or incapacity.

• [40] Accordingly, I do not consider the Applicant has an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

• [41] It is not in dispute, and I so find that the Applicant was aware that her dismissal took effect from 23 January 2025. Therefore, the Applicant had the full period of 21 days to make the Application. I consider this to be a neutral consideration.

• [42] Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[10]

• [43] In Hunter Valley Developments Pty Ltd v Cohen[11], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[12]

• [44] It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal other than making the Application. This factor weighs against a conclusion that there are exceptional circumstances.

• [45] Neither party submitted that the Respondent would be prejudiced by the delay, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.

• [46] However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.

• [47] Although the FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time, it is well established that on an extension of time hearing it will not be appropriate for the Commission to resolve contested issues of fact going to the ultimate merits.[13]

• [48] It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.

• [49] Accordingly, it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

• [50] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [51] The test of 'exceptional circumstances' establishes a 'high hurdle'. Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.

• [52] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time under s.394(3).

• [53] The Application is dismissed. An Order to that effect will be issued with this decision.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) at [13].

[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[5] Matthew Palmer v RCR Engineering Pty Ltd [2009] FWA 1431 (RCR Engineering); Liam Wilson v Quatius Logistics Pty Ltd [2020] FWC 3110 (Quatius Logistics); Dan Beard v Valley Industries Limited [2020] FWC 4523 (Beard v Valley Industries Limited).

[6] [2021] FWC 4694 at [44]- [51].

[7] [2023] FWCFB 113 at [26]- [28], citing Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285.

[8] [2018] FWCFB 1643.

[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[11] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.

[13] Nulty at [36]; Michael Broadbent v Goulburn Flight Training Academy Pty Ltd [2021] FWCFB 2794 at [28]; GHD Pty Ltd T/A GHD v Kevin Allan Black [2023] FWCFB 38 at [87].

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