s.394 - Unfair dismissal

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed

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

• [2] On 2 April 2025, Ms Nteris was called to a meeting and told she was being dismissed effective immediately following an investigation into an incident that occurred at work on 14 February 2025. On 29 April Ms Nteris lodged her F2 unfair dismissal application form with the Commission, seeking relief on grounds she had been unfairly dismissed.

• [3] 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). The period of 21 days ended at midnight on 23 April 2025. The application was therefore filed 6 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request and raises an objection that the application should be dismissed as it was filed out of time.

• [4] The 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]

• [5] 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.

• [6] 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.

• [7] 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. I now consider these matters in the context of the Application.

• [8] The 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 the applicant's favour, however all of the circumstances must be considered.[3]

• [9] Ms Nteris acknowledges her application is filed out of time. She submits the reasons for this delay is that she was not aware of the 21-day filing requirement. That she has experienced "significant emotional distress and anxiety" and that this has impacted her capacity to "act promptly" as she needed time to mentally and emotionally process what occurred and obtain support. After being cleared of any misconduct impacting her working with children's check by the Department of Education, she was able to make this application with the Commission and did so on 29 April 2025.

• [10] Ms Nteris has provided oral evidence and supporting material to the Commission to substantiate her submissions. Her additional oral evidence included that she has been receiving counselling from Dr Nicholas Cooper and been advised by him, and others, she could take her matter to Fair Work.

• [11] Ms Nteris accepted in evidence it was not until the 29 April 2025 after she was contacted by the Department of Education that she did anything to dispute her termination by filing this application. Her reasons for this are that she was unable do to so because of the impact of the termination on her overall capacity, emotional and mental health, that were compounded by her 40 plus years in the industry.

• [12] The Respondent position is it is not aware of any independent Department of Education investigation commenced before or after Ms Nteris filed this application with the Commission. Ms Nteris' position is she has been told she has been "cleared" by the Department.

• [13] After the conclusion of proceedings, Ms Nteris provided correspondence from the Department confirming 'allegations of inappropriate discipline' against her made to the Department on 21 March 2025 had not been substantiated.

• [14] While I accept this evidence, Ms Nteris has not presented any evidence or submissions to the Commission she had made a complaint to the Department of Education and was waiting for this response as a reason for the delay.

• [15] This being the case, I do not accept this material provides any support to there being a valid reason for the delay.

• [16] Ms Nteris' further reason for delay is her lack of awareness of the filing requirement. Ms Nteris makes no further substantive submissions to support this reason for delay. Had this been the case, I would have regard to the established principle that ignorance of one's rights is not usually an acceptable reason for delay.

• [17] I have considered Ms Nteris' claim that the emotional stress and anxiety she suffered because of her dismissal impacted her capacity to make her application on time. In this regard, I note her evidence of being able to seek advice and independent support indicates she had some capacity. Furthermore, that it is well established as common for people who have lost their job to suffer negative impacts, including stress and anxiety and financial strain.[4]

• [18] Considering all of the above, I do not accept that Ms Nteris has presented any evidence of "exceptional circumstances" of why she did not file her application with the Commission within the required 21-day period. Nor do I accept there is anything "exceptional," "out of ordinary course" or uncommon about her circumstances that distinguishes her case from many others placed in similar situations.

• [19] It follows I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

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

• [20] The Applicant's submissions and supporting materials make it clear she became aware her employment came to an end on 2 April 2025. Therefore, Ms Nteris had the full 21-day period to lodge her unfair dismissal application.

• [21] I therefore consider this factor to be neutral.

• [22] It is not accepted that Ms Nteris took action to dispute her dismissal prior to making this application with the Commission. I have considered this factor. In proceedings Ms Nteris accepted it was not until 29 April 2025 that she did anything to dispute her dismissal because of the reasons above.

• [23] I accept this to be the case and consider this factor must be weighed against the Applicant in the circumstances of this case.

• [24] Ms Nteris submits there is no prejudice arising for the Respondent should her application be permitted to proceed. The Respondent submits that allowing the application to proceed despite its objections would not amount to a significant prejudice to the Respondent.

• [25] I have considered these submissions, and I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of an extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances and consider this a neutral factor.

• [26] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. In short, Ms Nteris submits she was terminated for serious misconduct involving a child in her care without warning and that she has been cleared of this conduct by the DOE.

• [27] The Respondent position is that the termination was result of a clear act of serious misconduct on the Applicant's behalf that is not denied. Further, that she was provided with procedural fairness and that her application has a low prospect of success.

• [28] Having examined these materials, it is evident to me that the merits of the Application may 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.

• [29] That said, it remains premature to make any firm or detailed assessment of the merits. Accordingly, I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

• [30] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

• [31] Neither party brought any other substantive matter or decision of the Commission concerning this matter to my attention in submissions or at the hearing.

• [32] My conclusion is that this is a neutral consideration.

• [33] 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. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

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

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

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

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