s.394 - Unfair dismissal

Application for unfair dismissal remedies - application for an extension of time

• [1] On 22 September 2025, Ms. Costantina Andrianopoulos was dismissed from her employment with Services Australia (Centrelink).

• [2] On 21 November 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 39 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) of the Act.

• [4] On 12 December 2025, I heard Ms. Andrianopoulos's extension of time application by way of a determinative conference. Ms. Andrianopoulos appeared and represented herself. Mr. Levin Reece of the firm Sparke Helmore represented Centrelink on my leave. Ms. Bogoeski, who is employed by Centrelink in Employee Relations, and Ms. Esther Robinson, who is an Acting Senior Government Lawyer, also attended.

• [5] For the following reasons, I have decided not to grant an extension of time to Ms. Andrianopoulos, and her application 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. Andrianopoulos's application was filed at 11:21 AM (AEDT) on 21 November 2025. It was made 39 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. Andrianopoulos first became aware of the dismissal after it had taken effect;

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

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

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

• [9] Each of these matters must be considered in assessing whether there are exceptional circumstances.[2] Exceptional circumstances have their ordinary English meaning. They must be out of the ordinary course, unusual, special, or uncommon. They need not be unique, unprecedented, or rare.

• [10] Before dealing with the extension of time application it is necessary to outline the correspondence between Ms. Andrianopoulos and Centrelink leading up to 22 September 2025, the date she was sent a letter of termination by e-mail.

• [11] On 26 August 2025, Ms. Carol Brasher from Centrelink sent a letter by e-mail (and by post) to Ms. Andrianopoulos. The e-mail attached a letter from Mr. Stephen Cooney, the National Workplace Relations Manager at Centrelink, entitled "Proposed Termination of your Employment".[3] It included the following:

On 8 July 2025, Ms Carol Brasher, Acting Service Support Manager, wrote to you advising how the agency may determine your future requests for unpaid leave. You were advised there is no automatic entitlement to unpaid personal leave under the Enterprise Agreement (EA).1 You were also warned that where an employee is absent without authority for 5 or more days in a 12-month period, the delegate may consider termination of your employment.

Since 2 July 2025, you have been absent from the workplace for at least 32 days which have been determined by the delegates, Mr Saurabh Bakshi, Team Leader, to be unauthorised. On this basis, I am considering the termination of your employment with the agency.

If you wish to provide reasons why your employment should not be terminated, you should ensure that your comments are received by 1 September 2025, by 5.00 pm Australian Eastern Standard Time (AEST).[4]

• [12] On 26 August 2025, Ms. Brasher attempted to contact Ms. Andrianopoulos by text. Contact was finally made, and the following text exchange occurred:[5]

Hi Tina, I'm reaching out to you via this text as I've attempted to contact you today unsuccessfully at 1:47 and 2:35 pm. I have left a message but I'm wanting to inform you that you're going to receive important correspondence that I sent to you today regarding your employment that requires your immediate attention. I would encourage to have someone available to support you as you may find the content distressing and I would also like to remind you that support is available through our employee assistance program. You can contact Telus health on one 800 953564. I'm sending this SMS message Because Saurabh said you currently won't get my email. The correspondence will be sent both via email and via post take care Carol.

I`m in hospital. That email address is not on my phone

I am sorry to hear that Tina can you access you emails via your phone or you may need someone to collect your mail or your laptop for you. Do you have an email account on your phone.

What's distressing Carol is you willing to send such an email to me whilst in hospital. Not very professional! Enough said

• [13] On 28 August 2025 Ms. Brasher sent a further text:

Hi Tina I'm really sorry to hear that you're in hospital and it was not my intent to upset you in anyway but to provide you with a courtesy email so that you weren`t caught off guard when the correspondence arrived I understand that that you are in hospital, however, if you think you may require an extension to respond can I ask that you call Nicky Wark assistant director of HR support on 02 7928 5403 again. I do understand that this might be upsetting, and I am going to remind you that if you would like to talk to a counsellor, please use employee assistance program and contact. Tell us help on one 1800 953564

• [14] On 5 September 2025, Ms. Brasher sent a follow up e-mail: "We have attempted to reach out to you on several occasions and through a variety of channels to inform you of the important correspondence regarding your employment that requires your immediate attention. If you wish to respond, please do so by 11 September 2025 by 5pm AEST in line with the information provided in the letter".[6]

• [15] On 5 September 2025 at 4:43PM, Ms. Andrianopoulos sent a lengthy e-mail (one and a half A4 pages) to Ms Jane Steinkamp of Centrelink, which I set out in full:[7]

"I would like to raise a few concerns I have regarding the dealings of my employment termination as below: -

I suffer from chronic debilitating vertigo (BPPV) of which I have always provided medical certificates and even a medical report requested (cost me $300). This has been occurring since April 2024.

My medical report was refused just recently as was advised it is not sufficient, although my GP answered every single question in the Direction Letter provided to me - therefore I was marked as unscheduled absence.

On the 31/7/25 I received $651.73 from Services Australia as was paid leave entitlements etc. from being terminated as PAC advised me.

Since 31/7/25 I have been asked to provide further medical certificates commencing 1/9/25 and to amend my medical report.

This is contradicting as why have I been terminated before being able to provide what was requested and to add to this I was not advised I was even terminated. Carol Brasher was advised by my Team Leader Saurabh Bakshi that I was in hospital on 26/8/25 with a kidney infection. Carol attempted to call me and sent me a text message asking me to provide her an alternate email address on my mobile phone (gmail) so she can advise me I was terminated.

Adding to the above she stated the information she has for me is distressing and I need a support to read the email sent to this address I am using at home.

My response to her is why is she bullying me when I am already distressed in hospital and she is aware I am in hospital. Do I ask the Doctor to be my support or was I meant to call somebody to come in whilst I am on an IV antibiotic drip? Two days later Carol sent an apology which I do not accept as what she did is not professional and is totally against company policy.

I would like to know where all the miscommunication has occurred and why I was terminated without being advised but then being asked to provide medical evidence?

Martin Hicks is privy to all the history of my case, therefore he would be the best contact. Carol stepped into my case at a very late stage and I do not think she realises the severity of my illness. -This has been extremely distressing and I now have had to be prescribed anxiety medication to deal with it all.

-I have been a valued employee of Services Australia for 16 years with a great performance history and never a code of conduct. I cannot believe my employment can just be terminated when I have followed all direction to the best of my ability whilst debilitated in bed for weeks on end and all people involved in my case being aware of this.

I am sending this today as am feeling a lot better from my kidney infection, however still recovering. I am contactable on 0448 545 998 if you would like any further information.

• [16] On Friday 5 September at 4.04PM, Ms. Andrianopoulos sent a further e-mail to Ms. Steinkamp, a National Manager at Centrelink: "apologies as forgot to advise I will be having eye surgery on 8 September 2025 so am avail from 9 September onwards and then having further surgery on 15 September so avail 16 September onwards".[8]

• [17] On 9 September at 11.34AM, Ms. Steinkamp sent another e-mail to Ms. Andrianopoulos acknowledging her e-mail of 5 September, wishing her well for the eye surgery, and then she indicated she would be sending Ms. Andrianopoulos's longer e-mail dated 5 September to Liberty Davies, the National Manager Smart Centres Victoria Metro.[9]

• [18] On 10 September 2024 at 4.26PM, Ms. Davies sent an e-mail to Ms. Andrianopoulos which included:[10]

I refer to your email to Jane Steinkamp dated 5 September 2025.

In your email, you refer to your employment with the agency having been terminated. I would like to clarify that to date, your employment with the agency has not been terminated, however you have been issued with a letter from the delegate, Mr. Stephen Cooney, dated 26 August 2025, advising that he is considering terminating your employment. This letter also advised that if you wish to provide reasons why your employment should not be terminated, you should do so by 5pm AEST on 1 September 2025 via email to HR.Support@serviceaustralia.gov.au. On 5 September 2025, you were advised via email that you had been given an extension of time to provide your response to the proposed termination of your employment by Thursday, 11 September 2025. I am advised you are now to be given a further extension of time to provide a response by COB, Monday 15 September 2025.

After this date, Mr. Cooney will consider any response you have provided and make a decision whether or not to terminate your employment. Please be advised that as I am not the relevant decision-maker in relation to this matter, I will not be considering any response you provide. Accordingly, and as advised in the letter from Mr. Cooney, please ensure all future correspondence regarding the proposed termination of your employment is directed to HR.Support@serviceaustralia.gov.au.

• [19] On 15 September 2025, Ms. Andrianopoulos sent an e-mail to Ms. Liberty Davies stating, "I am having surgery this morning then in recovery, so I am contactable from Wednesday onwards".[11]

• [20] On 19 September 2025 at 5.32 PM, Ms. Andrianopoulos sent an e-mail to Ms. Saurabh Bakshi, her team leader:[12]

I had cataract surgery on Monday 15/9 after having to postpone it due to being unwell. The other eye is scheduled for Monday 22/9. It is approximately 1 week recovery for each eye.

I had a follow up visit earlier today and the ophthalmologist advised me once I get the other eye done this will cease my vertigo (if not already) as he has dealt with patients in my position many times over the years. I am hoping he is right as since surgery this week I have not even had the slightest vertigo which has not happened for over a year.

I did escalate my issue re my employment with Liberty Davies of which is on leave till 2/10/25.

Dr John He advised me he will give me clearance to recommence employment week beginning 6/10/25 to allow time for healing after both surgeries.

Please advise of next steps or I will await for Liberty to look into the matter further.

• [21] On Monday 22 September at 3:10PM, Ms. Brasher sent Ms. Andrianopoulos an email:[13]

I attempted to contact you unsuccessfully today at 2.13pm and invited you to call me back

I left a message to inform you that you will receive important information about your employment with Services Australia, I also emailed you advising that a letter was going to be sent to you, I advised that the email would be identified as "Official Sensitive" and that you would be provided with instructions electronically of how to access the email based on its classification

The letter is attached to this email and will also be posted to your recorded residential address.

• [22] The attached letter was from Stephen Cooney dated 22 September 2025. It was entitled "Notice of Termination of Your Employment." In summary the letter dismissed Ms. Andrianopoulos for "non-performance of duties" because she 'had not attended the workplace since 17 July 2024, and in the last twelve months you have been absent for a total of 127 personal leave days (paid and unpaid) and at least 32 days have been recorded as unauthorised absence." It notified her that the termination of employment would occur from 22 September 2025 and she would be paid five weeks in lieu of notice.[14]

• [23] In her oral submissions Ms. Andrianopoulos stated that from time to time her friend Carmel sent e-mails on her behalf. She stated that, when Carmel sent e-mails, she would indicate in the text that she was sending them on behalf of Ms. Andrianopoulos. Ms. Andrianopoulos conceded the e-mails she sent in the correspondence I refer to above were signed and completed by her.

• [24] This forms the background in which the application for an extension of time arises. I will now examine whether I should allow further time for Ms. Andrianopoulos's application to be filed.

• [25] In her application Ms. Andrianopoulos gave the following reason for her delay:

"I have been hospitalised twice since my employment was ceased and all parties where aware I was only contactable by phone at all times due to my condition I cannot read e-mails due to severely blurred vision."

• [26] In the hearing I asked her when she was hospitalised and for how long. She said from 20 to 23 September (this only encroaches one day into the period after her dismissal) and 19 to 21 October 2025 (a further three days).

• [27] Ms. Andrianopoulos gave further details of the arrangement that she was only to be contacted by telephone in her Form F2 where she states: "At all times the business line was aware I was to be contacted via phone. Martin Hicks was my liaison and communicated this to all 4 people dealing with one situation".[15]

• [28] Mr. Martin Hicks filed a witness statement in this proceeding.[16] He says he assisted Ms. Andrianopoulos in relation to her "illnesses from a work perspective". He says the following in relation to the "phone only" arrangement:

"During the time that I assisted with managing Tina, we would communicate regularly through email and telephone calls.

In relation to Tina's assertion that I was aware and had communicated to other staff that Tina was only to be contacted 'by phone', I assume Tina is referring to only being contacted via telephone call. I did not have an arrangement with Tina that she would only be contacted by telephone. To my knowledge, there was no such arrangement for communication with Tina. I was also not aware of Tina requesting only to be contacted via phone call. I am not aware of there being any agreement in place between Services Australia and Tina, at any stage, that she was only to be contacted via a telephone call during her employment. I never communicated such an arrangement to other staff".

• [29] A further reason Ms. Andrianopoulos gives for her delay is she suffers from Benign Paroxysmal Positional Vertigo (BPPV).

• [30] In her oral submissions Ms Andrianopoulos said "Having this particular vertigo it can go 3,4 or 5 weeks nonstop... I might have a day or two when I am OK and I might be able to get up. Still, I am confined to home, whether it's in bed or the coach, so I can't sit upright." She went on "when I can actually sit up then I can focus a bit more... I would not be able to focus for a full day using a screen, but I am OK at the moment."

• [31] Ms. Andrianopoulos condition is described in a medical report dated 18 June 2025 from her treating medical practitioner Dr John He.[17] Dr. He describes BBTV as "chronic vertigo, a condition characterised by episodes of dizziness, balance disturbances, nausea and visual instability." Dr He continues:

"This condition has been ongoing since approximately May 2024, with symptoms that significantly interfere with her ability to safely and effectively perform work-related duties. It is noted that Tina did fall quite a few times, even resulting in ED attendance, with a further diagnosis of concussion.

As a result of these symptoms, Tina is currently unfit for work. Activities such as standing for prolonged periods, operating machinery, driving, or engaging in tasks that require focus, balance, or physical coordination pose a significant safety risk both to the patient and others. Additionally, BPPV episodes are unpredictable, which complicates scheduling and workplace reliability.

I recommend a period of medical leave from work beginning 2/6/2025, with regular reviews and reassessment of fitness for duty on a monthly basis".

• Was hospitalised twice due to BBPV and related complications... on one occasion [she] had a seizure and bit her tongue, which required a long period of healing where [she] could not speak and only consumed a soft diet.
• had a fall as a result of severe BPPV, which has caused a concussion which "makes BPPV rehabilitation even more difficult."
• was "referred to a psychologist under a GP Mental Health Treatment Plan to treat chronic BPPV related anxiety and depression."

• [33] Dr He then moves on to her prognosis. Where he states:

"The length of absence is unable to be determined at the moment as BPPV is a condition that can recur at any time. Tina is however, undergoing vestibular physiotherapy at the moment, which can still induce significant improvement.

The prognosis is uncertain at this stage as the BPPV can be difficult to treat and be recurring for months or even years".

• [34] Lastly after outlining the condition, its symptoms, and effects Dr. He describes the adjustments that he would recommend for her to return to work:

"I would recommend working from home as there is less head movement, which can typically trigger BPPV. If Tina feels unwell there is no travel etc. required being at home. This is particularly true as driving involves frequent head movement, such as doing shoulder checks, which may trigger BPPV at any moment.

She may benefit from graduated return to office work when her condition is stabilized."

• [35] In her oral submissions Ms. Andrianopoulos said neither her GP nor the specialists can "come to conclusion as to why (the BPPV) is occurring." Her GP surmised that it may be because of her eyes. Ms. Andrianopoulos had cataract surgery in September. She says since her eyes were corrected with cataract surgery she has "actually been OK" that is why she "chose to go ahead" [with this application].

• [36] Ms. Alexia Katra, a service manager at Centrelink who managed Ms Andrianopoulos' employment from February 2026 filed a witness statement for Centrelink[18]. It annexed two e-mails from Ms Andrianopoulos that give the dates she had "eye surgery."
  • • On 5 September 2025 at 4PM, Ms. Andrianopoulos sent an e-mail to Ms. Jane Steinkamp where Ms. Andrianopoulos states: "Apologies I forgot to advise I will be having eye surgery on 8 September 2025, so I am available from 9 September onwards and then having further surgery on 15 September and available from 16 September 2025 so available 16 September onwards".[19]
  • • On Monday 15 September 2025 at 8.08AM, Ms. Andrianopoulos sent an e-mail to Ms. Liberty Davies at Centrelink where she states: "I am having surgery this morning then in recovery tomorrow".[20]

• [37] On 19 September 2025, Ms. Andrianopoulos sent an e-mail to her team leader Saurabh Bakshi. In that e-mail Ms. Andrianopoulos says her ophthalmologist advised her that once she "gets her other eye done this will cease my vertigo." She says, "she hopes this is right as since the surgery this week I have not even had the slightest vertigo which has not happened for a year". She also says: "Dr He will give me a clearance to recommence employment on 6 October 2025 to allow time for the healing of the surgeries."

Centrelink submissions on the reasons for delay

• [38] The gravamen of the written submissions of Centrelink is that Ms Andrianopoulos has not provided any reason or evidence to establish a valid reason for the delay.[21] The submissions it makes in support of this include:

• The delay is significant.
• Ms. Andrianopoulos has not provided any evidence to support her written submission about hospitalization and inability to be contacted other than by telephone.
• It is difficult for an employee to establish that they were prevented from lodging due to a medical condition without clear medical evidence showing incapacity.

• The general explanation provided by Ms. Andrianopoulos, coupled with the lack of medical evidence to support her explanation, does not "support" the delay.
• Ms. Andrianopoulos acknowledges she became aware of the termination of her employment by the latest 23 October 2025, which she says is the date the dismissal took effect. The application was eight days late even on her own account.

• [39] The primary reason Ms. Andrianopoulos gives for her delay is she was incapacitated by the symptoms of her BBPV.

• [40] She relies on a report of Dr. He dated 18 June 2025 (three months before her termination) which states she has "chronic vertigo". This is characterised by "episodes of dizziness, balance disturbances and visual instability". Dr. He concludes she is unfit for work because standing for long periods, operating machinery, or engaging in tasks that require focus, balance or physical co-ordination pose a safety risk. When he provided the report, he regarded the prognosis as "uncertain because BPPV can be difficult to treat and be recurring for months or even years". He recommended that Ms. Andrianopoulos work from home "as there is less head movement which can typically trigger BPPV".

• [41] This medical report of Dr. He is not an assessment based on her condition during the period between her dismissal and the lodging of her application. At best, the medical report establishes her prognosis (at that date) was uncertain and her symptoms may recur for a "months or even years". There is material before me to suggest that prognosis may have changed as a result of the intervention of her cataract surgery.

• [42] In her oral evidence Ms Andrianopoulos said, "since her eyes were corrected with cataract surgery", she has "actually been OK." In her email she sent to Ms Steinkamp on 5 September at 4.04PM, Ms Andrianopoulos says she will be having eye surgery on 8 September and 15 September. This is confirmed in her e-mail to Ms Liberty Davies sent on 15 September at 8.08PM where she says, "she is having surgery this morning."

• [43] In her 19 September 2025 e-mail to her team leader, Saurabh Bakshi, Ms. Andrianopoulos says that her ophthalmologist advised her that once she "gets her other eye done this will cease my vertigo". She says, "she hopes this is right as since the surgery this week I have not even had the slightest vertigo which has not happened for a year" (emphasis added). She also says: "Dr He will give me a clearance to recommence employment on 6 October 2025 to allow time for the healing of the surgeries".

• [44] Her own evidence, and the e-mail to her team leader support an argument her eye surgeries improved her symptoms. The 19 September e-mail also anticipates her doctor to declare her fit for work on 6 October.[22] All this material stands against an argument that her BPPV symptoms prevented her from filing an application for 39 days.

• [45] Even if her symptoms are still quite severe, her evidence was she can go a number of weeks with severe symptoms, but she might "have a day or two: when she was "OK". She went on "when I can actually sit up then I can focus a bit more... I would not be able to focus for a full day using a screen, but I am OK at the moment". Ms. Andrianopoulos herself said that there were periods of up to "3, 4 or 5 weeks non-stop of chronic symptoms and then "I might have a day or two when I am OK".

• [46] On this evidence it is likely there were periods where she could have sat up and prepared and filed a Form F2. I find it unlikely that she would have an unbroken period of severe symptoms which prevented her from making an application for 60 days.[23]

• [47] I am satisfied Ms Andrianopoulos's BPPV has caused her to suffer chronic and debilitating symptoms, however, the evidentiary material before me is not sufficient to satisfy me that she suffered chronic symptoms for all or most of the period of the delay.

• [48] Dr He's medical report relates to a period that was three months before she was terminated. There is evidence that her cataract surgery, which took place in September, ameliorated her symptoms. There is also evidence that even during periods she suffered the most chronic symptoms, there were days where she could sit up and operate a computer for short periods. In those circumstances the symptoms of her BPPV are an insufficient reason for the delay.

• [49] Ms. Andrianopoulos gave evidence that the two periods of hospitalisation she was referring to in her application were 20 to 23 September and 19 to 21 October 2025. This only accounts for four days after her dismissal. This cannot provide a valid reason for the delay.

Arrangement that she was to be contacted by phone only

• [50] I am not satisfied on the material before me there was an arrangement between Ms. Andrianopoulos and Centrelink that she was only to be contacted on the telephone. Mr. Hicks categorically denies such an arrangement was in place. Further, the four e-mails and texts she sent during the period leading up to her dismissal run counter to her "phone only" argument.

Conclusion on her reasons for the delay as a factor

• [51] On the basis of the evidentiary material, I cannot be satisfied that her BPPV incapacitated her from filing an application within time or provided a good reason for the further delay in filing the application. None of the other reasons she gave such her hospitalisation, or the arrangement that she be contacted by phone only, are sufficient reasons for the delay.

• [52] I therefore find the reasons she gave for the delay are not, either individually or collectively, sufficient reasons to explain the 39 day delay. This factor therefore counts against an extension of time being granted.

AWARENESS OF THE DISMISSAL AFTER IT HAD TAKEN EFFECT?

• [53] Ms. Andrianopoulos says she found out about her dismissal on or about 23 October 2025 (a full one month after her termination). According to her she found out:

... only due to me asking where my termination letter is then it was emailed to me. I received no phone calls as once again all parties involved were aware of that was my form of contact. Even after being terminated I was asked to amend my medical report so I had made an appointment with my GP as was unaware I was terminated.

• [54] Her submission she had an arrangement with Centrelink management that she was only to be contacted by phone is contradicted in the statement of Martin Hicks.

• [55] Despite the asserted "phone only" arrangement, Ms. Andrianopoulos engaged in e-mail and text correspondence up to the point of the termination of her employment:
  • On 26 August Ms Brasher sent (by e-mail and by post) a "Proposed Letter of Termination". Ms. Brasher attempted to call Ms Andrianopoulos. Ms. Brasher then had a text exchange in which Ms. Andrianopoulos protested that she was in hospital and claimed she was being bullied (amongst other things).
  • On 28 August Ms. Brasher sent a phone text apologising for contacting Ms. Andrianopoulos while she was in hospital and suggesting Ms. Andrianopoulos request an extension of time to answer the matters in the Proposed Letter of Termination.
  • On5 September Ms. Andrianopoulos wrote an e-mail to Ms. Steinkamp outlining her concerns regarding the unfairness "regarding the dealings of my employment termination" (her employment had not been terminated). She wrote a further e-mail on that day informing Ms. Steinkamp of the dates she was to undergo eye surgery.
  • On 9 September Ms. Steinkamp responded to this e-mail and stated that she had referred to her e-mail to Liberty Davies.
  • On 10 September 2025 Ms. Davies wrote an e-mail to Ms. Andrianopoulos which informed her that her employment had not been terminated and extended the time for her to respond to the Proposed Termination Letter to 15 September 2025.
  • On 15 September Ms. Andrianopoulos emailed Ms. Davies informing her that she was having surgery that day and can be contactable "from Wednesday onwards".
  • On 19 September 2025 Ms. Andrianopoulos e-mailed her team leader informing him of her more favourable prognosis and that she anticipated her doctor would give her a medical clearance to attend work on 6 October 2025.
  • On 22 September Ms. Brasher sent Ms. Andrianopoulos an e-mail. In that e-mail Ms. Brasher states, she attempted to contact her at 1.23PM and invited her to call Ms. Brasher back. Ms. Brasher states she left a message to inform her that she will "receive important information about your employment with Services Australia". She also states "she emailed Ms. Andrianopoulos advising that a letter was going to be sent to you. It will be identified as "Official Sensitive" and that she "will be provided with instructions electronically how to access the e-mail based on this classification".
  • The letter sent by e-mail and by post marked "official sensitive" was her termination letter from Mr. Cooney.

• [56] Centrelink cites the Full Bench decision in Ayub[24] including a passage to the effect that where an e-mail is sent to an employee informing them they have been dismissed the employee "can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the e-mail is received in the inbox of the employee's e-mail address".[25]

• [57] With respect to the evidence on this factor Centrelink argues:

The evidence demonstrates that the Applicant clearly had access to her email, checked and used her email, and had a 'reasonable opportunity to know of the dismissal' when the Termination Letter was sent to the Email Address on 22 September 2025. There is also no evidence to indicate that the Applicant was unable to read emails sent to the Email Address. Furthermore, there was no agreement between the Applicant and the Respondent that she would only be contacted 'by phone.'[26]

• [58] Ms. Andrianopoulos was corresponding with management by e-mail up to 19 September 2025. It is dissonant that she had a capacity to read and answer e-mails before her termination but lost it after she was terminated. She responded to the "Proposed Termination of Employment" letter on Friday 5 September (which she mistook as a termination). This implies she had read the letter. In those circumstances Ms. Andrianopoulos knew or ought to have known that her job was in jeopardy. These circumstances required vigilance. Ms. Andrianopoulos should have taken steps that either herself or a support person (such as her friend Carmen) checked her e-mails before 23 October 2025.

• [59] The evidence as to whether or not a message was left on Ms. Andrianopoulos phone by Ms. Brasher on 22 September about a "important information about her employment with Services Australia" is contested. It is also contested whether there was an arrangement with Centrelink that she could be contacted only on the phone.

Finding on date she became aware of the dismissal

• [60] Given the conflicting evidentiary material, I am not in a position to state unequivocally the date on which Ms. Andrianopoulos became aware she had been dismissed. This factor therefore must be a neutral factor in a consideration of exceptional circumstances.

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

• [61] In her oral submissions Ms. Andrianopoulos conceded she took no action to dispute her dismissal between 22 September 2025 until the date she filed her application on 21 November 2025. This factor counts against an extension of time being granted.

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

• [62] Centrelink claimed a forensic prejudice because the delay was "more than double the statutory deadline and because the memories of the parties involved will "fade." This submission was "not pressed" in the hearing.

• [63] In a recent Full Bench appeal from a decision of Commissioner Ryan in Shiralee Dollar v. RC Group Holding,[27] the Full Bench did not disturb the observation of Commissioner Ryan that "it is well settled that a lengthy delay gives rise to a presumption of prejudice." The Full Bench observed.

That observation was reasonable in the context of a case where the delay in the Appellant filing her unfair dismissal application is 101 days. The observation is also consistent with the Full Bench in [GHD Pty Ltd v. Kevin Allan Black] where the relevant delay was 168 days.

• [64] The delay here is half the length considered in Shiralee Dollar. I do not accept a 39 delay is likely to cause forensic disadvantage arising from fading memory. It follows this is a neutral factor in a consideration of exceptional circumstances.

• [65] Ms. Andrianopoulos makes the following submissions on merits:[28]

• At all times, the business line were aware I was to be contacted via phone.
• Martin Hicks was my liaison and communicated this to all 4 people dealing with one situation.
• I provided medical certificates for all my absences since April 2024 as I suffer BPPV (Benign Paroxysmal Positional Vertigo) which is a debilitating form of vertigo as they have always been aware.

• I can provide all the medical certificates and medical reports they requested under G8.11 Enterprise Agreement which can be interpreted in a multitude of ways.
• The business asked me to amend this report by asking my GP to place an end date of my absence, however, as my GP stated in the report that BPPV can last months to years therefore cannot place an end date. At the same time, I provided them an underlying certificate with this report with an end date as they requested me to do.

• [66] Centrelink relies on the reasons in the 22 September 2025 termination letter. Ms. Andrianopoulos was dismissed on the grounds of non-performance of duties as set out in s. 29 (3)(c) of the Public Service Act 1999.[29] The allegations against Ms. Andrianopoulos are that she "had not attended the workplace since 17 July 2024". "In the last twelve months [she had] been absent for a total of 127 personal days (paid and unpaid) and at least 32 days have been recorded as unauthorised absence".[30]

• [67] The merits of this proceeding turn on contested facts. It is not appropriate for the Commission to resolve contested facts in an extension of time proceeding. In the absence of a full hearing, it is not possible to make any firm assessment of the merits. This factor is therefore neutral to a consideration of exceptional circumstances.

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

• [68] Ms. Andrianopoulos made the following submissions on this factor:

"It is in their service charter and an ethical action to take. I was an employee for 16 years and high achiever and never had been performance managed or code of conduct. My opinion is too many people dealt with my situation and miscommunication was occurring, especially after Service Manager changes[31]".

• [69] Centrelink submits there are no persons in a similar position and this is therefore a neutral factor.

• [70] The factor "fairness as between the person and other persons in a similar position" was considered by Deputy President Gostencnik in Morphett v. Pearcedale Egg Farm:[32]

"Cases of this kind will generally turn of 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 related to matters currently before the Commission or matters which have been previously decided by the Commission".

• [71] This factor turns on a comparison between the applicant and other persons in a similar position. Neither submission is compelling because neither make the relevant comparison. This factor is therefore a neutral consideration in an assessment of exceptional circumstances.

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

Two factors against a finding of exceptional circumstances

• [72] The following factors are against a finding of exceptional circumstances:
  • Reasons for Delay: Ms. Andrianopoulos relies on chronic symptoms of her BPPV as the primary reason for the delay. Dr. He's medical report was produced three months before her dismissal. It reports that the prognosis of her condition was "uncertain and can be difficult to treat for months or even years." On her own submissions and e-mails her eye operation in September ameliorated her symptoms. She herself conceded even when she was suffering chronic symptoms there were one or two days in every few weeks where she could sit up and use a screen. It follows I am not satisfied that her BPPV prevented her from making an application for 39 days. Neither am I satisfied any of the other reasons she gave where sufficient to justify a delay of this length. This factor counts against an extension of time being granted under s. 394(3)(a).

• Action to dispute the dismissal: Ms. Andrianopoulos 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).

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

• Awareness of the Dismissal: On the material before me I cannot be satisfied when Ms. Andrianopoulos was made aware of her dismissal. There is a contest on the evidence in relation to her "phone only" contact, and it is dissonant that leading up to her termination she was corresponding with management by e-mail but not after. Given the state of the evidentiary material, I will treat it as a neutral consideration.
• Prejudice to the employer: Centrelink made no compelling submissions that it would suffer prejudice by reason of the delay.
• Merits: On the 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. Andrianopoulos and other persons in a similar position.

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

• [75] Two factors count against an extension of time being granted. The rest are neutral considerations. Therefore, on balance, considering all the factors under s. 394 of the Act, I am not satisfied there are exceptional circumstances to justify an extension of time.

• [76] I therefore order this application is dismissed.

Ms. Andrianopoulos, the Applicant, represented herself.

Mr. Levin Reece, a solicitor of the firm Sparke Helmore Lawyers, for the Respondent.

[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] Digital Commission Book (DCB) at pp 18-20.

[22] I assume fit for work with reasonable adjustments.

[23] This is the period of the time limit plus the additional 39 days before the application was filed.

[24] [2017] FWCFB at [17].

[27] [2025] FWCFB at [85].

[29] DCB at p. 15 from the Centrelink Submissions at paragraph 35.

[30] DCB at p. 9 - the Termination Letter.

[32] [2015] FWC 8885 at [29].

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