The attached document replaces the document previously issued with the above code on 24 July 2025.

A typographical error at [21] and document referencing have been corrected.

[2025] FWC 2168

Fair Work Act 2009

s.394 - Unfair dismissal

• [1] On 7 August 2024, Ms. Chrissie Purdy was dismissed from her employment with The Social Research Centre Pty Ltd (SRC).

• [2] On 19 June 2025, she made an application claiming she was unfairly dismissed from her employment. Unfair dismissal applications are required to be made within 21 days of the dismissal taking effect. Her application was 295 days late.

• [3] The Commission has power to extend the time for making the application if the Commission is satisfied that there are exceptional circumstances under s 394(2)(b).

• [4] On 24 July 2025, I heard Ms. Purdy's extension of time application by way of a determinative conference. Ms. Purdy appeared and represented herself. SRC was represented by Mr. Andrew Maher of CIE Legal on my leave.

• [5] For the following reasons, I have decided not to grant an extension of time. The application in this matter is therefore dismissed.

Was the Application made within 21 days after the dismissal took effect?

• [6] The 21-day period does not include the day on which the dismissal took effect.[1]

• [7] Ms. Purdy's application was filed at 12:22 AM (AEST) on 19 June 2025. It was made 295 days late. I therefore need to consider whether to make an order to extend the period to make the application.

• [8] I may allow a further period for an unfair dismissal application if I am satisfied there are exceptional circumstances, taking into account:

(b) when Ms. Purdy first became aware of the dismissal after it had taken effect.

(c) any action taken by Ms. Purdy to dispute the dismissal.

(d) prejudice to SRC (including prejudice caused by the delay).

(f) fairness as between Ms. Purdy and other persons in a similar position.

• [9] Each of these matters must be considered in assessing whether there are exceptional circumstances.[2] I set out my consideration of each matter below.

• [10] Ms. Purdy gave the following reasons for her 295 day delay.

Assumption she would be called back to work and denial that she had been fired

• [11] She "assumed" that someone from SRC would get back to her and ask her back to work and was "in denial" she had been fired.

Ignorance of the 21 daytime limit and failure of anyone to inform her of the unfair dismissal jurisdiction

• [12] She did not know about the 21 day time limit or the existence of the Fair Work Commission until she was told about the possibility of an unfair dismissal proceeding by an employee of Centrelink in May 2025.

• [13] An unfair dismissal proceeding was "not a priority" because following the May 2024 death of her mother Ms. Purdy became involved in a lengthy probate dispute with her sister, the executor over her mother's will.

• [14] The unit in which Ms. Purdy was living was owned by her mother. On her mother's death, her sister became the executor of her mother's will and had decided to sell it. Ms. Purdy was concerned that she would be left homeless. She was then engaged in a multiplicity of legal proceedings both in the Victorian Civil and Administrative Tribunal and the Magistrates Court which included Ms. Purdy instructing lawyers to act for her. The dispute was not resolved until May 2025.

• [15] Exceptional circumstances are to be given their ordinary meaning. Exceptional circumstances are out of the ordinary course, unusual, special, or uncommon. The circumstances do not need to be unique, nor unprecedented nor very rare.

Ignorance of the time limit, assumption that SRC would contact her, and denial she had been fired

• [16] It is common for persons with no legal training to be ignorant of the time limits within the Act. Neither Ms. Purdy's assumption that SRC would contact her and ask her to come back to work, nor her denial that she had been fired, can be regarded as an uncommon response to a termination of employment. None of these reasons can support a finding of exceptional circumstances.

• [17] The probate dispute could have provided an argument in support of an extension of time. Ms. Purdy in her submissions argues that she found the probate dispute "all consuming" until it was resolved in May 2025. She could therefore not turn her mind to an unfair dismissal proceeding.

• [18] Ms. Purdy provided very few details of the probate dispute in the material she filed in support of her extension of time application. The only documentary material she filed in relation to this issue was:

• A 12 March 2025 legal bill for professional fees from a lawyer;
• A 2 April 2025 email from Mr. Paul Beasley which suggests a method of resolving the dispute;
• E-mails initiating contact with the lawyer who held her mother's will; and
• A 5 June 2025 e-mail from the State Revenue Office concerning the transfer of a unit in Doncaster (presumably the Unit in which Ms. Purdy was living).

• [19] This is inadequate documentary proof that the steps Ms. Purdy took to resolve the probate dispute were such as to consume every waking moment for the 295 days of the delay or a significant part of it. I infer that, like every legal dispute, there were peaks and troughs of activity and less intense periods in which Ms. Purdy could have filed an unfair dismissal claim.

• [20] I agree with the view expressed by Deputy President Colman in McBride[3] that "lodging an unfair dismissal application [is] a process which involves the completion of a very simple form in any one of a variety of simple ways." In the absence of more compelling evidence, I cannot find the probate dispute was so time consuming that it prevented her from completing a simple form for a period of ten months.

• [21] I therefore find the reasons given by Ms. Purdy for the delay, namely: her assumption that SRC would contact her, the fact she was "in denial" she had been dismissed, her ignorance of the time limit, and the probate dispute are neither together or separately sufficient reasons to explain the delay. This factor counts against a finding of exceptional circumstances.

WHEN DID MS. PURDY FIRST BECOME AWARE OF THE DISMISSAL AFTER IT HAD TAKEN EFFECT?

• [22] Ms. Purdy was informed her employment was being terminated on the day of her dismissal which was 7 August 2024. This factor is therefore neutral to a finding of exceptional circumstances.

WHAT ACTION WAS TAKEN BY MS. PURDY TO DISPUTE THE DISMISSAL?

• [23] Ms. Purdy conceded she took no action to dispute her dismissal until the filing of her application on 19 June 2025. This factor counts against an extension of time being granted.

WHAT IS THE PREJUDICE TO SRC (INCLUDING PREJUDICE CAUSED BY THE DELAY)?

• [24] Given the length of the delay SRC, argue the delay has led to a forensic prejudice. SRC are "less able to successfully defend a claim for unfair dismissal due to the recollections of those involved being adversely affected by the significant interval between the dismissal and the application being filed.". In his oral submissions on behalf of SRC, Mr. Maher conceded those SRC employees associated with the disciplinary process up to Ms. Purdy's dismissal were still employed by SRC.

• [25] Ms. Purdy made oral submissions that at SRC, "everything is recorded." She clarified that this referred to interactions by SRC staff with members of the public during the taking of surveys rather than internal meetings at SRC. Ms. Purdy said "she assumed"

the internal meetings and telephone calls were recorded.

• [26] On balance, given the ten month delay, I accept a forensic prejudice would be suffered by SRC because the precise memories of the SRC witnesses who participated in the procedure and meetings leading to Ms. Purdy's dismissal would have faded. This prejudice counts against a finding of exceptional circumstances.

• [27] The conduct which led to Ms. Purdy being dismissed was a 29 July 2024 telephone conversation with a member of the public, in which she is alleged to have said:
  • "You sound like an obnoxious teenager who is bored and using us for entertainment"
  • "You are going to give me rubbish answers aren't you"
  • "We don't have to do the survey - obviously I don't want to do it with you"
  • "If you are that stupid that you're going to tell people those [personal] details.... [laughs] - Seriously!"
  • "Ivan Milat? You know he was diagnosed as a psychopath and I think you are too."
  • "You're a joker aren't you. You're a joker, aren't you."
  • "I'd rather speak to a nice person that lets me finish a sentence."
  • "You just want to screw me around."
  • "Why would I give you my surname? Are you going to stalk me, are you?"
  • "I've been doing this for 15 years and I'm going to go now. Bye" [hangs up]

• [28] Ms. Purdy says the member of the public was extremely rude to her because he thought Ms. Purdy was "a scammer". He told her "don't you hang up on me" and subjected her to a stream of abuse. Ms. Purdy argues that it was unfair for her to be dismissed for this conduct because it was taken out of the context of the extreme abuse by the person she called, and not enough weight was given to her explanation of her conduct.

• [29] Ms. Purdy also argues that in her 5 August 2024 interview with Ben Davey and Jacinta Buckley of SRC concerning the incident, her ability to explain herself was limited because even though the meeting was booked for 30 minutes, it was over in twenty minutes. Ms. Purdy also argues the "preliminaries" where SRC explained the process of the meeting went for ten of the twenty minutes. This meant practically she was only given ten minutes to explain her position. She argues this was a denial of procedural fairness.

• [30] SRC argue Ms. Purdy's behaviour in the 29 July 2024 phone call amounted to serious misconduct against the written policies of SRC. They also argue she was given ample opportunity to defend herself at the 5 August meeting. The fact the meeting was scheduled for 30 minutes and only took 20 minutes, does not lead to a conclusion she was denied an opportunity to explain her conduct. SRC argue there was a valid reason for the dismissal which amounted to serious misconduct and that the process of the dismissal was fair.

• [31] From the submissions made in relation to the merits it appears there is a conflict on the evidence as to both the process used for the dismissal and on the veracity of the reasons the employer gives for the termination.

• [32] Until I have an opportunity to hear the sworn evidence from relevant witnesses, I cannot make a determination of the merits. The merits turn on contested facts, which require a full hearing. It is not appropriate for the Commission to resolve contested facts in an extension of time application. In the absence of a full hearing, it is not possible to make any firm assessment of the merits.

• [33] This factor is therefore neutral in a consideration of whether to extend time.

FAIRNESS AS BETWEEN MS. PURDY AND OTHER PERSONS IN A SIMILAR POSITION

• [34] In respect of this factor Ms. Purdy submitted "other interviewers have said much worse and had only received an informal warning." In response, Mr. Maher stated it is unlikely Ms. Purdy knew of the disciplinary processes undertaken against other workers because they are confidential.
• [35] Mr. Maher made oral submissions in respect to this factor. He argued all the decisions referred to by SRC in its written submissions should be given weight to establish that, in respect to each factor under s394(3) , it would be unfair to the applicants in each of those decisions, if Ms. Purdy's extension of time application was granted.

• [36] Neither of these submissions are particularly compelling. It follows this factor is neutral to a consideration of whether an extension of time should be granted.

IS THE COMMISSION SATISFIED THAT THERE ARE EXCEPTIONAL CIRCUMSTANCES, TAKING INTO ACCOUNT THE MATTERS ABOVE?

• Reasons for Delay: The reasons for delay do not provide an adequate explanation for the delay. Ignorance of the law, an assumption the employer would contact her and offer her to return to work, the fact that she was "in denial that she had been fired" and the probate dispute are collectively and individually insufficient reasons for a delay of this length. Therefore, this factor counts against an extension of time under s 394(3)(a).
• Action to dispute the dismissal: Ms. Purdy took no action to dispute her dismissal prior to filing her application. This factor counts against an extension of time being granted under s 394(3)(c).

• Prejudice to the employer: Given the lengthy nature of the delay, I am satisfied SRC has suffered a forensic prejudice because of the fading memory of its witnesses. This factor counts against an extension of time being granted under s394(3)(d).

• [37] The considerations in s 394(3)(b), (e) and (f) are neutral factors in an assessment of exceptional circumstances for the purposes of s 394(3):

• Notification of the Dismissal: Ms. Purdy was given notice of her dismissal on 7 August 2024. She had the benefit of the full 21-day period to lodge her unfair dismissal application.
• Merits: On the untested and limited evidence before me, I am not able to assess the merits as a factor in determining whether I should grant an extension of time.
• Fairness between persons: No compelling submissions were made on fairness arising between Ms. Purdy and other persons in a similar position.

• [38] I conclude the reasons for the delay under s 394(3)(a), the failure of Ms. Purdy to dispute her dismissal under 394(3)(c), and the prejudice to SRC under s394(3)(d) all count against an extension of time granted. All the other factors in s 394(3)(b), (d), (e) and (f) are neutral.

• [39] Three factors count against an extension of time being granted. The rest are neutral considerations. Therefore, on balance, considering all the factors under s 394 together with the lengthy nature of the delay, I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.[4]

[1] Singh v BSG Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[3] McBride v. J.A Kreiger Forestry Services [2021] FWC 6284 [5].

[4] PR790111.

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