Fair Work Commission|2025-07-16

Debora Tavares Alves v The Trustee For T.C. Future Investment Unit Trust [2025] FWC 2045 (16 July 2025)

s.365 - General protections

The Trustee For T.C. Future Investment Unit Trust

Application to deal with contraventions involving dismissal

[1] Ms. Debora Tavares Alves had worked at CNA Accountants (the trading name for the Respondent, T.C Investment Unit Trust from hereon CNA) for "at least twelve years".[1] Ms. Alves was the Office Manager. Her duties included "corresponding with clients, dealing with the businesses Trust Fund, and performing administrative tasks".

[2] After an extreme medical episode (which I will address later), Ms. Alves was absent from work from 9 November 2024.

[3] On 15 January 2025, the bookkeeper sent Ms. Alves a letter to her personal email address headed "Termination of Employment". The letter asserted Ms. Alves had abandoned her employment and "based on the length of her employment" that CNA would give her "a notice period of five weeks from the dated of the letter".

[4] On 19 February 2025, (at the expiration of five weeks), Ms. Alves was sent an email by Ms. Giulia Van Daalan, the Bookkeeper for CNA, which read:

"Your employment has now been terminated and you (sic) final payment has been processed. Your payslip has been emailed to you in a separate email. Please find attached attached your Employment Separation Certificate for your records."

[5] The employment separation certificate gave as the reason for the "separation" as "Abandonment of Employment".

[6] On 2 April 2025, Ms. Alves made an application alleging she was dismissed from her employment by the 19 February email in contravention of Part 3-1 of the Act. General protections applications are required to be made within 21 days of the dismissal taking effect. Her application was 21 days late.

[7] CNA objects to this application on two grounds. One is the application is made out of time. The second is a jurisdictional objection that Ms. Alves was not dismissed at the initiative of the employer as required by s 386 of the Act. CNA argues that due to an extended and unexplained absence from work Ms. Alves effectively renounced her employment relationship and had abandoned her employment.

Sequence of dealing with the objections and the determinative conference

[8] The Full Bench in Herc[2] confirmed the question whether an application is made outside the required time "is not strictly a jurisdiction objection".[3] An out of time application is not validly made until an order that an extension of time is granted. Logic dictates that the validity of an application must be determined before any jurisdictional objections such as whether an applicant has been dismissed. I will apply the sequence of objections adopted in Herc. Therefore, I will determine the extension of time application first and then, if necessary, to determine the dismissal question.

[9] On 3 July 2025, I heard Ms. Alves' extension of time application and CNA's no dismissal jurisdictional objection by a determinative conference. Ms. Alves appeared and represented herself. CNA was represented by Ms. Kirsty Ha of counsel.

I order that the period of time for Ms. Alves to make the application is extended to 2 April 2025, the date on which the application was filed.
I uphold the no dismissal jurisdictional objection of CNA. Ms. Alves was not dismissed within the meaning of s 386. Her s 365 application is therefore dismissed for want of jurisdiction.

[11] The Commission has power to extend the time for making the application if the Commission is satisfied that there are exceptional circumstances under s 366(1)(b).

[12] For the following reasons, I do not grant an extension of time to Ms. Alves and therefore his application is dismissed.

When must an application for the Commission to deal with a dispute be made?

[13] Before dealing with the dispute, I must be satisfied that the application was made in time. If it is not, then I must decide whether to extend the time for making the application.

[14] Section 366(1) of the Act provides:

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

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

[15] The 21-day period does not include the day on which the "dismissal" took effect.[4]

[16] Ms. Alves' employment ceased on 19 February 2025. It follows the final day for filing the application was 12 March 2025 and ended at midnight on that day.

[17] Ms. Alves' application was filed at 12:08 PM (AEST) on 2 April 2025. It was made 21 days late. I therefore need to consider whether to make an order to extend the period to make the application.

[18] I may allow a further period for a general protections application if I am satisfied there are exceptional circumstances, taking into account:[5]

(b) any action taken by Ms. Alves to dispute the dismissal.

(c) prejudice to CNA (including prejudice caused by the delay).

(e) fairness as between Ms. Alves and other persons in a similar position.

[19] Each of these matters must be considered in assessing whether there are exceptional circumstances.[6] I set out my consideration of each matter below.

[20] In s 366, "exceptional circumstances" means "out of the ordinary course, unusual, special or uncommon". The circumstances are not required to be unique, unprecedented or rare. The procedure I am required to follow is to weigh each of the factors in s 366 (a) to (e) to assess whether there are overall, exceptional circumstances.

[21] The reason for the delay is not itself required to be an exceptional circumstance. The reason for the delay is one of the factors that must be weighed in assessing whether there are exceptional circumstances.[7]

[22] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Ms. Alves has not provided any reason for any part of the delay.[8]

[23] The circumstances that lead to Ms. Alves not attending work and her delay in filing of the application involved a confluence of circumstances which can only be described as horrific. They include an attempt on 9 November 2024 to take her own life, self-inflicted injuries which required surgery, an involuntary admission to hospital, and placement in a secure mental health facility at the Dames Phyllis Frost Centre following police involvement.

[24] In her oral and written submissions, the reasons Ms. Alves gives for her delay are: the serious trauma she suffered from 9 November 2024, the ongoing mental health conditions she had developed, and the medical treatment she received during the period of her delay. In her oral submissions she said following her attempt to take her own life, she was admitted to "Royal Melbourne and Brunswick Hospital from 10 to 24 November" and then "early in 2025".

[25] In an email dated 7 May 2025 to the Commission she writes the following as a prelude to the events of November 2024:[9]

"Since 2023, I have experienced significant mental health issues following personal hardships, including the breakdown of my marriage and the miscarriage of my twins..."

"My application was lodged late due to my inability to advocate for myself during a period of severe mental health decline. Key events include:

A mental health breakdown and suicidal attempt on 9 November 2024, followed by hospital admissions at Royal Melbourne Hospital and Brunswick Private Hospital from 10-14 November 2024 and in early 2025.
Multiple hospital admissions for mental health crises, PTSD, anxiety, and trauma throughout November 2024 to early February/March.
Three surgical procedures at Royal Melbourne Hospital in November 2024 and February/March 2025 due to severe physical health complications.
Placement at Dame Phyllis Frost Centre for mental health intervention following police involvement.

During this period, a police-imposed intervention order mistakenly restricted contact with my daughter, Chloe, until January 2025."

[27] Ms. Alves filed a letter from Dr Harshil Singh of the Coolaroo clinic dated 12 April 2024 (10 days after the application was filed) which relevantly states:

Debora has been a patient of mine since 24th of March 2025. She has recently been discharged from the care of Western Health mental health team following self-inflicted wounds secondary to her mental illness. She is currently stable and receiving ongoing treatment for her mental health and physical health.

From the limited information I have received and her history on file I believe her psychiatric condition requires intensive treatment and is preventing her returning to the workforce. I have

arranged follow up with myself to allow referral to an appropriate psychologist as she transitions from inpatient to community mental health treatment.

Given the limited correspondence I have received from Western Health it is unclear if she has a psychiatrist assessment pending or not. I feel this would be important for ongoing care given her complex past. She is currently on medication for a history of complex post-traumatic stress disorder, severe anxiety disorder and depression.

This letter is written to the best of my knowledge with the time I have had with Debora to date.

16 April 2024 Medical Certificate form from Dr. Singh

[28] Ms. Alves also filed a medical certificate dated 16 April 2024 (14 days after the application was filed). The medical opinion is contained within a Centrelink Medical Certificate form. It is signed by from Dr. Harshil Singh of Coolaroo Clinic. It notes:

She suffers a "primary condition" of Generalised Anxiety Disorder and Post Traumatic Stress Disorder.
Her treatment is "psychology in community and inpatient, currently ongoing exposure therapy and CBT with a psychologist. Mental Health treatment and GP Review".
In answer to the question whether Ms. Alves has "capacity for work, study, or participate in activities for 8 or more hours per week" the answer is "No".
In answer to the question "the duration of the functional impact of this condition is expected to be it answers "24 months or more".
She also suffers from a "secondary condition" which is described as "laceration of left arm - repaired surgically". It notes the duration of functional impact of that condition is expected to be "less than 13 weeks" and notes "left arm injury being treated, healing well, no further surgery required, ongoing pain being treated with GP".

[29] Ms. Alves also filed part of a form which is signed by a clinical psychologist Dr. Vesna Newman Morris on 28 May 2025 (57 days after the application was filed) which is a "Declaration by a registered medical practitioner" whereby Dr. Newman Morris declares "the information she is providing is true and correct"[10] As part of that declaration Dr Newman Morris states:

"I have started seeing Debora Alves for psychological assessment and treatment of mental health conditions including major depression, anxiety and post traumatic stress... She presents with significant mental health issues and it is likely that her treatment will require multiple modalities to address the conditions and improve functioning over the course of 2 years".

[30] In further written submissions dated 24 June 2024, she relevantly writes:

"As I am being treated for Mental health issues Anxiety Depression PTSD Pain on my arm neck and leg Suicidal nightmares and I take at least 8 tablets a day and I Do Not Leave My House!"

Oral evidence in relation to self-inflicted arm and neck injuries and their surgical treatment

[31] In relation to her arm and neck injuries, Ms. Alves filed photos of a reddish scar on her neck that appears to have been stitched and a similar scar that runs across her left arm opposite her elbow. In her oral evidence she confirmed these injuries were "self-inflicted" and that the injury included nerve damage to her arm. She states that she had "surgical procedures" in relation to those injuries in November 2024 as well as February and March 2025.

[32] CNA, after a recitation of the authorities relevant to medical conditions as a reason for delay, argues:

The evidence provided by Ms. Alves is insufficient to demonstrate a reason for the delay because to the extent that there is an explanation for the two weeks between 12 March and 24 March, it is only by way of self-assessment contained in Ms. Alves's email dated 7 May.

Though Ms. Alves describes a mental health breakdown, multiple hospital admissions and surgical procedures in "early 2025" or "February/March 2025", it is not clear whether those events occurred between 12 March and 2 April 2025. If they occurred earlier, there is no medical documentation that describes their continued effect on her ability to file her application.

The medical assessment only covers the period of delay between 24 March and 2 April. While it is not necessary for an applicant to provide a reason for the entire period of the delay, the absence of any explanation for any part of the delay weighs Ms. Alves

The medical assessment does not specifically address the impact of Ms. Alves's condition on her ability to file her application within the given timeframe. On the contrary, it appears from the assessment that the state of Ms. Alves's health was a continuing state, by which she was affected even at the time that the application was filed. This indicates that Ms. Alves was still able to file her application despite her condition.

[33] This is not a case of a mild anxiety disorder or a depressive illness. What happened to Ms. Alves from 9 November was a medical emergency of the most extreme kind: her attempt to take her own life, including acts of self-harm (which required remedial surgery) and involuntary admission to hospital. Her evidence is that she was undergoing surgery "in February and March"

[34] The only medical opinion that strictly deals with the period from 28 March until 2 April is the 12 April letter from Dr. Singh, however, some inferences can be made from the medical opinion dated after the application day in relation to the medical conditions she suffered during the delay:

• Ms. Alves has a medical diagnosis of Post Traumatic Stress Disorder, Generalised Anxiety Disorder, "major" depression[11] which is being treated in a variety of ways including with medication. Dr. Newman-Morris states that "her treatment will require multiple modalities to address the conditions".

Dr. Singh says that she is unable to work, study or participate in activities at all for a period of 24 months. Dr. Singh in his 12 April letter says "her psychiatric condition requires intensive treatment and is preventing a return to the workplace".

[35] I infer from this medical opinion that during the period of the delay she was suffering multiple medical conditions which can be regarded as severe and requiring intensive treatment.

[36] According to the principles on mental health as a reason for delay summarised by Deputy President Easton in Bianco Mamo v. ICLED Australia Pty Ltd,[12] he states:

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.
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; and
An applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient.

[37] The multiple medical conditions which I infer Ms. Alves suffered during the delay period are much more than a mere "depressive illness", where evidence of the effects of that medical condition might be required to explain the delay.

[38] The mental health conditions here were experienced by Ms. Alves within four months of an attempt to take her own life. Ms. Alves has multiple conditions which her medical professionals say are severe and warranting intensive treatment. Self-assessment of psychological incapacity is "unlikely to be sufficient", however Ms. Alves' self-assessment, combined with the seriousness of the November incident, the severity of her ongoing conditions and the requirement for intensive treatment take her medical condition into something extraordinary and into a factor that would support a finding of exceptional circumstances.

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

[39] Ms. Alves points to a letter she sent to CNA on 27 March 2025 as evidence she disputed the dismissal between the cessation of her employment and the filing of her application. That letter included the following text:

I am writing to express my deep distress and disappointment regarding the way my employment at C.N.A. Accountants was concluded. I recently returned from receiving treatment following a serious mental health breakdown, during which I was hospitalised and had limited capacity to communicate or advocate for myself.

Throughout my 15 years and 4 months of service, I worked full-time and consistently did my best for the company. I was committed, hardworking, and loyal. It is incredibly disheartening that, during one of the most vulnerable periods of my life, I was not met with the compassion or support I had hoped for from my long-standing workplace. Instead of being considered for redundancy or supported through a difficult period-as has been the case for other staff facing mental health struggles-I was terminated on 19 February 2025.

I have since contacted Fair Work and am currently awaiting advice from a Commissioner, as well as arranging to speak with a Fair Work lawyer. My intention in writing this is not to escalate conflict but to express my hurt and disappointment, and to seek acknowledgment of the way this situation has been handled.

[40] An expression of hurt and disappointment is not the same as action to dispute the dismissal. To dispute the dismissal is to argue about the legality of the termination of employment. The express intention of the 27 March 2025 letter is "not to escalate conflict" but to express her feelings about it. It follows this correspondence does not dispute the dismissal.

[41] As there is no evidence of an attempt to dispute the dismissal between the cessation of her employment on 19 February and the filing of the application on 2 April this factor counts against the finding of exceptional circumstances.

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

[42] CNA claims an "uncertainty caused by the matter remaining unresolved" is a prejudice to CNA. This "uncertainty" does not reach a level of significance to be considered a factor against Ms. Alves being granted an extension of time. It is a universal experience of all litigants. I find no forensic or other prejudice will be suffered by CNA as a result of the delay.

[43] The absence of prejudice is not in itself a matter that supports a conclusion of exceptional circumstances. This factor is neutral to the finding of exceptional circumstances.

[44] Ms. Alves claims the reason for her dismissal included her physical and mental disability under s 351 and her temporary absence from work under s 352. In her application, she frames these claims as follows:

Physical or mental disability (s 351)

I had mental health breakdown in November 2024 and tried to end my life and police were involved after operation i was sent to mental health unit Mamack at dame phyllis frost centre for 120 days, during this time my daughter during this difficult time and stress she emailed my employer on my behalf as she is my next of kin that i was not able to come into work and unwell, she was under alot of pressure and stress as she thought she loosing her mother. and was unable to make regular contact but it was not her or my intent to do so. I was not able to speak to my employers as i was a mess with mental health issues depression anxiety ptsd etc... but my employer on 19th Feb 2025 made me resign instead of consider redundancy as i was employed by the company for 15 years and 4months? I was not paid out as workfair advised them if they resign me they would not need to pay me redundancy. I worked full time over 40hrs week loyal and hard worker and i didnt receive 2024 Bonus payment? Please help

Temporary absence from work because of illness or injury (s 352)

I had mental health breakdown and suicide attempt and due to this my daughter was my only contact and advocate and she was under alot of stress of loosing her mother and stress for herself and her work. She did not know what to do and My bosses of 15 years took advantage as my mental health & suicide is a private matter. The Directors did not pay me a bonus or consider redundancy after 15 yrs of being employed by C.N.A Accountants.

[45] CNA makes the following submissions on the merits:

"The merits are not strong because there is no clear basis for Ms. Alves to obtain the remedy that is sought. The remedy that Ms. Alves seeks appears to be that CNA pay her a redundancy payment and an annual bonus payment. Although it is open to the Court as a matter of law to order compensation of those amounts, there is no clear basis in this case for Ms. Alves to receive a redundancy payment. It was not the case that CNA no longer required Ms. Alves's job to be done by anyone. On the contrary, Ms. Alves's role at CNA was wide ranging and instrumental to the business. In Ms. Alves's absence, it was necessary to rearrange the duties of other employees to cover her role, and her absence was detrimental to the operation of the business. In light of this, the strength of Ms. Alves's case is not a factor that assists in demonstrating exceptional circumstances."

[46] The merits of these claims are predicated on what the employer knew of her conditions at the time of the 19 February 2025 cessation of employment. Mr. Stylianou filed a Statement in support of CNA's no dismissal jurisdictional objection. The contents of this statement were not contested by Ms. Alves. It provides evidence of the circumstances that led to the cessation of her employment on 19 February. I provide a summary of that evidence below.

[47] On Friday, 8 November 2024 at 7:22 AM, Mr. Stylianou received a text message from Ms. Alves**:**

Morning, I won't be in today not feeling well. Bad Migraine. Debora.

[48] On Monday, 11 November 2024, the following exchanges occurred:

At 7:04 AM: Mr. Styliano received a text message from Chloe Orlanski (the daughter or Ms. Alves):

Hi Thanos, it's Chloe, Debora's daughter, I just tried calling you to let you know that Mum is in the hospital at the moment and can't make it into work. Can you please call me when you're free to talk?

Between 7:50 and 8:12 AM: Mr. Stylianou says he attempted to contact Ms. Orlanski at approximately 7:52 AM and again at 8:12 AM but without success. He then sent Ms. Orlanski a text message "Hi Chloe, Tried calling you, give me a call".

10:23 PM: Mr. Stylianou received a response from Ms. Orlanski which attached a medical report from Royal Melbourne Hospital.

Hi Thanos, I hope you're well, sorry for messaging at a late hour, just wanted to update you with a medical certificate for mum. Thank you so much for your understanding. I have also passed this onto Camille already.

[49] The Royal Melbourne Hospital document stated:

Debora Alves presented to the Emergency Department on 10/11/2024 at 10:27. Debora is suffering from a medical condition and will be absent from work from 10/11/2024 until 17/11/2024 inclusive.

[50] 18 November 2024: Ms. Alves did not arrive at work. Mr. Stylianou contacted Ms. Orlanski and the following text exchange occurred:

9:36am: Stylianou: Hi Chloe, Worried about Mum, is she ok? Isla checking into work today. Is she coming in today

10:29am: Orlanski: Hi Thanos, no, she is still in hospital and I haven't been able to see her. I am not sure what her condition will be like and when she will be recovered. I am so sorry for the inconvenience, but I will get back to you as soon as possible with any update.

11:10 AM: Stylianou: Why can't you see her and what has happened? This doesn't make sense I'm confused

I want to apologise for the lack of communication. Mum is currently managing some serious health concerns and wanted me to help communicate on her behalf.

Due to her ongoing medical condition, including stress related and mental health issues, her doctors have advised her to temporarily step back from work responsibilities to focus on recovery. At this stage, she is unsure when she will be able to return but is hopeful that with time and the right support, she can fully recover.

Mum deeply values her time at CNA and appreciates the support and opportunities she's had while part of the team. She wishes to work with you to explore the best path forward during this period.

Please let me know how we might proceed and if any further information or formalities are required. Thank you for your understanding and support during this time.

[51] 19 November 2024: According to the Stylianou statement Mr. Nahas (another director of CNA) had an exchange with Ms. Orlanski:

Thank you for last night report on your Mum health. We are deeply concerned about her health and well-being and we wish her a speedy recovery. Your report is a bit vague as to her state of health and particularly her scheduled return to work. Mum's position is very unique. We require a detailed report from Mum's doctor specifying in general her health state and the recovery process and in particular the period of recovery. We need to make plans to temporarily employ a replacement if her absence is prolonged to undertake her duties. Time is of essence and we require an answer as soon as possible

Hi Camille, I understand but at the moment I can't provide any further details. Its best you hire someone temporarily. I am chasing up the documentation and will let you know when I can provide them

[52] 25 November 2024: The bookkeeper at CNA, Ms. Van Daalen sent an email to Ms. Alves personal email address which read as follows:

I am writing because we have not received any direct communication from you regarding your absence from work. The only correspondence received were some messages from Chloe and a medical certificate stating your absence from work from 10/11/2024 to 17/11/2024 inclusive. Since then, Camille has contacted Chloe in attempt to gain some further insight to your situation and a time frame for your return to work. Camille has received only vague correspondence affirming your absence due to a mental health condition.

Your health is priority and we want you to take the time you need to get well. We ask if you could please provide information on how long you will be absent from work and please send through a current medical certificate.

[53] Mr. Stylianou's statement says no response was received to this email.

[54] 3 December 2024: Mr. Stylianou sent a further text to Ms. Orlanski which read

"Is there any news on your mum? We are deeply concerned; can you please provide an update" According to Mr. Stylianou no response was forthcoming.

[55] Also on 3 December 2024, the next step in the chain of communication was contact to Ms. Alves' sister (who apparently once worked at CNA). Mr. Stylianou's statement says the following:

"On the same day at approximately 5:37pm, Mr. Nahas and I called Leila Tavares. I understand Ms Tavares to be Ms. Alves's sister. Ms Tavares was formerly employed at CNA from approximately May 2017 to February 2021. As such, I had Ms Tavares's contact details. I thought Ms Tavares might be able to provide an explanation for Ms. Alves's absence, given the lack of response from Ms. Alves and Ms. Orlanski. During that phone call, Mr. Nahas asked Ms Tavares about Ms. Alves's absence. Ms Tavares said words to the effect that Ms. Alves was sick and had just woken up, and that Ms. Orlanski would contact me or Mr. Nahas shortly."

[56] 16 December 2024: Mr. Stylianou sent a letter by post to Ms. Alves' address which was also sent to her personal email that stated the following:

I am contacting you as Camille and I have been unable to contact you directly despite multiple attempts to phone you and email you. You have been absent from work since 8 November 2024. Our last correspondence was from your daughter, Chloe on 18 November 2024, who advised us of a medical condition but was unable to provide a medical certificate or confirm your return.

It has been 4 weeks since the last contact was made. We are unsure of your intension [sic] to return to work and have been left to presume that you may have abandoned your employment.

It is becoming increasingly difficult for staff to fulfil your Office Manager duties as well as their own. Consequently, your absence is becoming detrimental to the accounting firm.

We request you contact Camille or I within 14 days of this letter and advise if there are any circumstances we should be made aware of relating to your absence including any current medical certificates.

[57] 15 January 2025, Mr. Stylianou sent a further letter to Ms. Alves by post. It read:

On December 16, 2024, CNA Accountants sent you a letter via mail and email requesting that you contact the undersigned within 14 days to explain your absence and whereabouts.

You have not made any contact with the company as required. It has been over eight weeks since CNA Accountants received any information on your absence.

CNA Accountants now considers you have abandoned your employment and your employment will end immediately.

Based on your length of service, you [sic] notice period is 5 weeks from the date of this letter.

[58] On 5 February 2025, Ms. Orlanski responded to this letter and email as follows:

On behalf of my mother Debora, I would like to inform you that she has received the notice of termination of her position at CNA Accountants

She is deeply grateful for your support during her time at CNA and appreciates the opportunities she had to grow both professional and personally within your organisation. She values the experience, community, and growth she was afforded while being part of the team.

She would like to enquire about the status of her entitlements and her 2024 bonus payment. She looks forward to receiving these at your earliest convenience.

Thank you once again for your understanding and support

[59] On 10 February the bookkeeper Ms Daalen responded to Ms. Orlanski as follows:

Further to your email to Thanos and Camille, I would like to advise that all entitlements owing to Debora will be paid upon her termination date, 19/02/2025. Entitlements will include any unused long service and annual leave and these calculations will be detailed in Debora's final payslip.

I have also contacted Fair Work for advice to ensure everything is done in accordance with the Award and National Employment Standards.

Debora has a significant amount of personal belongings in the office. We kindly ask Debora or yourself to collect these items at your earliest convenience. At the same time, we also request the return of the office keys & fob. Could you please confirm a date and time that is suitable. Our office hours are Monday to Friday, 9am to 5:30pm.

[60] On 19 February 2025, five weeks after the 15 January letter, Ms. Van Daalen wrote to Ms. Alves in the following terms:

Your employment has now been terminated and you (sic) final payment has been processed. Your payslip has been emailed to you in a separate email. Please find attached attached your Employment Separation Certificate for your records."

[61] I will deal definitively with the question of whether these facts constitute a termination at the initiative of the employer should I make an order to extend time. I will also then deal with the question whether Ms. Alves abandoned her employment.

[62] For the purposes of the extension of time application, the question of whether Ms. Alves was dismissed only needs to meet the threshold of arguable. The letter of 15 January which purported to give Ms. Alves five weeks' notice of termination together with the letter stating Ms. Alves was then "terminated" on 19 February could constitute a dismissal. I reiterate, should I grant the extension of time I will deal with this matter definitely.

[63] CNA argues it only had limited knowledge of Ms. Alves' medical condition. It argues the reason for the cessation of employment was that Ms. Alves was absent for work without adequate explanation from at least 19 November. CNA argues the unexplained absence led to Ms. Alves abandoning her employment.

[64] It is possible (I put it no higher than that) the evidence of Mr. Stylianou could support an inference that one of the reasons Ms. Alves employment was (arguably) terminated may have included temporary absence from work or her physical and mental disability.

[65] The question of whether or not the reasons for the cessation of employment included Ms. Alves' temporary absence from work or her mental conditions is contested. Until all witnesses give sworn evidence and subject themselves to cross examination in a full hearing that issue cannot be definitively determined.

[66] It is well settled it is not appropriate for the Commission to resolve issues of contested fact in an extension of time application. It is therefore not appropriate for merits to count either in favour or against a finding of exceptional circumstances. This factor is neutral to a finding of exceptional circumstances.

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

[67] Ms. Alves made no submissions on this factor.

[68] CNA argues it would be unfair to an earlier litigant, Mr. Wade McGovern who it asserts was in a "similar position" to Ms. Alves, should I order an extension of time in this matter. Mr. McGovern's application for an extension of time was refused by Commissioner Hunt in Wade McGovern v. Wolff Mining Pty Ltd.[13]

[69] The submission of CNA with respect to this factor include the following_:_

To the extent of the similarity, CNA draws the Commission's attention to the case of McGovern v Wolff Mining Pty Ltd.? In that case, the applicant suffered post-traumatic stress disorder as a result of a workplace injury. Though a number of reasons were advanced by the applicant for the delay, his mental condition was advanced as a major factor. In McGovern, the Commission did not accept the applicant's medical condition as an "exceptional circumstance" under s 366(2) of the FW Act.

[70] Ms. Alves and Mr. McGovern were in a similar position in so far they both suffer from the condition of post-traumatic stress disorder; however, their "position" differed significantly in relation to the length of time it took to make the application. Commissioner Hunt notes[14]:

"Mr McGovern has demonstrated that he has capacity to bring this application despite his ongoing medical condition. I consider that the reason he made the application in November 2024 instead of when he learned about the Respondent providing a code 05 in March 2023 is because he was not experiencing severe financial hardship and had the benefit of workers' compensation payments in March 2023. If he had made his application in March 2023, he would have been out of time by roughly one month, not approximately 21 months."

[71] I take it from this passage that the length of the delay, and Mr. McGovern's failure to explain it, was one of the reasons why the Commissioner refused to extend the time. There is a quantum difference between an application that is 21 days late and one that is 21 months late.

[72] The position of Mr. McGovern is not "similar" to that of Ms. Alves. This argument is insubstantial and cannot count against Ms. Alves. Neither party made arguments of sufficient weight to count either in favour or against the granting of an extension of time. This factor is therefore neutral to an extension of time.

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

[73] Reasons for Delay: Ms. Alves gave her mental health conditions as a reason for delay. After suffering a severe trauma in November (which included an attempt to take her own life and self-harm), Ms. Alves continued to suffer Post Traumatic Stress Disorder, Generalised Anxiety Disorder and "Major" depression which is being treated in a variety of ways including through medication. This is a major factor in favour of a finding of exceptional circumstances s 366(2)(a).

[74] Action to dispute the dismissal: Ms. Alves expressed her disappointment with the way she was treated by her employer but did not dispute the dismissal. This factor counts against an extension of time being granted under s 366(2)(b).
[75] The considerations in s 366(2)(c), (d) and (e) are neutral factors in an assessment of exceptional circumstances for the purposes of s 366(2):

Prejudice to the employer: CNA made unconvincing submissions on the issue of prejudice and could not identify any forensic prejudice by reason of the 21 day delay.
Merits: The evidentiary material before me could support an argument that Ms. Alves was dismissed and that her mental incapacity and her temporary absence from work were active reasons for her dismissal. No determination can be made on these facts without a full hearing which would include sworn evidence and cross examination. It follows this factor is neutral.
Fairness between persons: No persuasive submissions were made on fairness arising between Ms. Alves and other persons in a similar position.

[76] The reasons for delay count in favour of an extension of time being granted under s 366(2)(a). The failure of Ms. Alves to dispute his dismissal under s 366(2)(b) count against an extension of time granted. All the other factors in ss 366(2)(c), (d) and (e) are neutral.

[77] The reasons for delay count strongly in favour of the extension being granted. The failure to dispute the dismissal count against an extension The other three are neutral considerations. Therefore, on balance, taking into account all the factors in s 366(2) and the relatively short period of delay, I am satisfied there are exceptional circumstances to justify an extension of time, and I order that the period for making the application be extended to 2 April 2025, the date the application was made.[15]

[78] As I have extended time for the making of the application, there is a valid application before me. Following the sequence preferred by the Full Bench in Herc I will now consider the no dismissal jurisdictional objection of CNA.

THE NO DISMISSAL JURISDICTIONAL OBJECTION OF CNA

[79] It is an essential element of a general protections application under s 365 that "a person has been dismissed". The definition of dismissal is provided by s 386 which relevantly states "the person's employment with his or her employer has been terminated on the employer's initiative."

[80] CNA argues the cessation of employment of Ms. Alves was not at their initiative. The employment was brought to an end by the lengthy and unexplained absence of Ms. Alves by which she effectively had renounced her employment relationship. It argues by the date Ms. Alves was sent the letter of 15 January 2025, headed "termination of employment" she had abandoned her employment.

[81] CNA argues the test for abandonment is "whether the employee's conduct conveys to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee's fundamental obligations under it".[16]

[82] It adopts a four-part summary of the components of the test for whether an employee has abandoned employment.[17]
- An unexplained or unauthorised absence from the workplace.
- A reasonable period of time where the employee has been absent without explanation or authorisation.
- Whether there was any communication from the employee during the absence or the communication from the employee clearly displays an intention of not returning for work.
- Whether there was any enquiry by the employer in the time period where the employee was absent.

[83] On the basis of the narrative from the Stylianou Statement which is set out in paragraphs [47] to [60] in this decision, CNA argues each of the four components have been made out.

Ms. Alves's absence was unexplained. The only medical certificate that was provided to CNA expired on 17 November 2024. The last correspondence received from Ms. Orlanski advised that Ms. Alves would "temporarily step back from work" and advised that CNA should find a temporary replacement, but did not include any further detail as to when or whether Ms. Alves would return. No further explanation was given to CNA for Ms. Alves's continued absence.

• CNA asserts "the only knowledge CNA had on 15 January 2025 was that she may have had a migraine; that she was managing mental health concerns; and/ or that she may have otherwise been unwell".[18] None of these explained the length of Ms. Alves' absence, or whether she would return. CNA did not receive an explanation until it received Ms. Alves's application to the Commission.

Ms. Alves was absent for a reasonable period of time. The total period of unexplained absence up to the Abandonment Date was approximately two months. It is submitted that this is objectively a "reasonable period" of absence, particularly where a fundamental aspect of Ms. Alves's role was to attend the office in person.
There was no communication from Ms. Alves or Ms. Orlanski between 19 November 2024 and 15 January 2025.
The lack of communication occurred despite numerous, regular attempts from CNA to request an update on her condition and an explanation for her absence. CNA made calls and sent text messages. CNA requested updates from Ms. Orlanski. Formal written communications to Ms. Alves were made through post and email. When no responses were received, CNA contacted Ms. Alves's sister. CNA exhausted the avenues available to it. Even when CNA directly communicated to Ms. Alves that it presumed that she may have abandoned her employment, and left it open to Ms. Alves to respond otherwise, it did not receive a response.
Taken together, Ms. Alves's prolonged absence, and the lack of contact or explanation during that absence, would have conveyed to a reasonable person in CNA's position that Ms. Alves had renounced either her employment contract, or her fundamental obligations under it.

[84] CNA makes a further submission based on what it argues was the failure of Ms. Alves (or Ms. Orlanski) to raise a dispute concerning the abandonment when it was first raised. It argues Ms. Alves or her daughter "did not dispute that the employment relationship ended due to her abandonment. No dispute was raised when the allegation was first made. No dispute was raised when the notice period expired. ..... The only inquiries made by Ms. Alves were in relation to outstanding payments, and as CNA understands it, the only relief Ms. Alves seeks is in relation to the amounts she was paid upon her employment ending. CNA conveyed on 15 January 2025 its view that Ms. Alves had abandoned her employment, and there was nothing in Ms. Alves or Ms. Orlanski's correspondence following that date to displace that view."

[85] The Abandonment of Employment Full Bench stated: "Abandonment of employment arises in circumstances where an employee is absent from the workplace without communicating with the employer to provide a reasonable excuse or explanation for the absence."[19]

[86] In Searle v Moly Mines Limited,[20] a Full Bench confirmed consideration of the statutory test then applicable, of whether there had been a "termination at the initiative of the employer", relates to the termination of the employment relationship, not termination of the contract of employment. The contract of employment continues until the party breached against accepts the repudiation of the contract.[21]

[87] In GlaxoSmithKline Australia Pty Ltd v Gauci, it referred to the analysis required to be conducted, cautioning that "[t]he question posed by the statute is whether the employment was terminated at the initiative of the employer. An analysis based on contractual notions of repudiation and acceptance may not always correspond with the statutory concept".[22]

[88] In John David Bourke & Jamie Clifford and Others v OS MCAP Pty Ltd the Full Bench held that the Commission's analysis requires an "objective assessment":[23]

"[48] Application of the test for abandonment of employment requires an objective assessment, of "whether the employee's conduct is such to convey to a reasonable person in the position of the employer and based on the facts as reasonably known to the employer at the time, that the employee had repudiated their duty to meet their obligations under the contract of employment."

[89] The question is whether on an objective analysis of the facts Ms. Alves conduct was such to convey to a reasonable person in the situation of CNA a renunciation of the employment relationship. I accept and adopt the four components of the test argued for by CNA arising out of the decision of Deputy President Lake in Hyde Newell and Commissioner Gregory in Thompson v. Zadlea.

Timeline of communication on the medical circumstances of Ms. Alves

[90] What then did CNA know? According to the uncontested material filed by CNA, the timeline is as follows:

8 November 2024: A text from Ms. Alves that she would not be in and had a "migraine".
11 November 2024: Ms. Orlanski texted Mr. Styliano. Ms. Alves was in hospital and "can't make it to work". Later that day, a Medical Certificate from Emergency Department of RMH was provided. Ms. Alves was "suffering from a medical condition and will be absent from 10 November until 17 November 2024".
16 November 2024: Ms. Orlanski texts Mr. Stylianou. Ms. Alves was "managing some serious health concerns" and had an "ongoing medical condition including stress related and mental health issues" requiring her to "temporarily step back from work".
19 November 2024: Mr. Nahas texts Ms. Orlanski. He was concerned about Ms. Alves health. He notes the information provided on her health was "vague." He requires a detailed report from Ms. Alves doctor specifying her "general health state and period of recovery". Ms. Orlanski texts back. She "can't provide details at the moment", suggests CNA "hire someone temporarily" and she is "chasing up documentation and will let you know as soon as I can provide them".
25 November 2024: Ms. Van Daalen sends an email to Ms. Alves personal email requesting information on the length of absence and current medical certificate.
3 December 2024: Mr. Stylianou writes a text to Ms. Orlanski. He expresses they are "deeply concerned" and request for an update. On that day, Mr. Stylianou rang Ms. Alves sister. Ms. Taveres states Ms. Alves was "sick and had just woken up".
16 December 2024: Mr. Stylianou writes a letter to Ms. Alves' postal and personal email address noting it had been "4 weeks since last contact". He is "unsure about intention to return to work and presumes she has abandoned employment". He demands advice in 14 days relating to her absence and any medical certificates
15 January 2024: A further letter was sent to Ms. Alves from Ms Van Daalen:

"we consider you have abandoned your employment". The letter gives five weeks' notice.

5 February 2025: A response from Ms. Orlanski confirming "notice of termination received" and Ms. Alves is "deeply gratefully for support" and "enquires about status of entitlements and her 2024 bonus payment".
19 February 2024: Email to Ms. Alves from Ms. Van Daalen. Her employment "has been terminated. Payslip was emailed. Employment Separation Certificate giving reason for separation as "abandonment of employment".

[91] On the basis of the facts in this timeline I find:

CNA was never informed of the full extent of the trauma Ms. Alves had experienced from 9 November 2024. They did not know she had attempted to take her own life, nor did they know she had self-harmed. They did not know she had been involuntarily admitted to hospital in circumstances that included police intervention.
CNA had only received one medical certificate that covered her absence up to 17 November 2024.
Ms. Orlanski had informed CNA that Ms. Alves remained in hospital on 18 November. She informed CNA that Ms. Alves was "currently managing some serious health concerns" which included "stress related and mental health issues" which required her to temporarily step back from work.
On 19 November Ms. Orlanski had indicated to Mr. Nahas that she could not provide further details of Ms. Alves condition, that she was chasing up documentation and would let him know when she could provide them. No further details were forthcoming.
The only other information that was provided to CNA about the medical condition of Ms. Alves was after an enquiry to Ms. Alves sister on 3 December who stated that Ms. Alves "was sick and had just woken up".
Despite the requests made by text from Mr. Stylianou to Ms. Orlanski for information on 3 December, and the letter of demand sent on 16 December no information was forthcoming about the absence of Ms. Alves or her medical condition. No updates were provided to CNA from 19 November.

[92] Ms. Orlanski did not give evidence in the hearing. I can nevertheless appreciate the stress and anxiety she must have been under given the medical issues faced by her mother. Nonetheless, the test for whether there has been an abandonment of employment is based an objective analysis of a reasonable person "in the situation of the employer". CNA knew she was in hospital and had an "ongoing mental health and stress related issues" but from 19 November CNA received no further information about Ms. Alves medical condition or her capacity to work.

[93] On the four-component test of whether there has been an abandonment of employment, I find:
- There was clearly an unexplained and unauthorised absence from 17 November until 16 December 2024.
- Only one medical certificate was provided for the period 10 November 2024 until 17 November 2024.
- From 19 November no explanation had been provided on her medical condition.
- On 19 November Ms. Orlanski explained she could not provide "further details", indicated "she was chasing up documentation" and would let CNA know "when they could be provided". No further details were provided.
- From 19 November until 16 December 2024 there was no communication to anyone at CNA from Ms. Alves or anyone else as to whether or when Ms. Alves would return to work.
- The employer contacted Ms. Orlanski on multiple occasions and spoke to Ms. Alves sister trying to find out Ms. Alves medical status and whether she would return to work. They sent the letter on 18 December 2024 giving fourteen days to provide an update on her health. No update was forthcoming.

[94] CNA was not told of the extent of the trauma Ms. Alves experienced. They were not informed of any details of the serious medical conditions, or the series of treatments she was undergoing.

[95] After 11 November, no medical certificates were provided. All CNA knew was she was in hospital from 9 until 19 November 2024 and suffered "serious health concerns including mental health and stress related issues". From 19 November no further contact was made to inform the employer of the medical conditions.

[96] On an objective assessment of Ms. Alves conduct in not explaining her absence from work after 19 November, based on the facts reasonably known to CNA, CNA was entitled to conclude, in the absence of any detailed explanation of her medical conditions or the period for which she would be absent, that by 18 December she had repudiated her employment relationship.

[97] It could have been that, for most of the period Ms. Alves was absent from work, she was incapable of communicating with CNA. If that was the case this was never explained to CNA. It is important to note the situation of the employee is not the basis of the test for abandonment of employment. The test is based on the situation of the employer and what they knew based on what the employee has communicated. On that basis I find she had abandoned her employment.

[98] It follows there was no termination at the initiative of the employer as defined by s 386 and required by s 365(a). By the absence of communication with CNA as to her medical condition or on her expected return to from 19 November she had renounced her employment relationship. Ms. Alves application under s 365 is therefore dismissed for want of jurisdiction.[24]

[99] Ms. Alves appeared remotely in the hearing, and it was obvious she was undergoing significant stress in appearing for herself. The finding that she abandoned her employment is a technical matter and in this decision, I make no criticism of her or her conduct. I wish her well for her recovery.

Ms. Debora Tavares Alves, the Applicant, for herself.

[1] Digital Court Book 46. This is from paragraph 3 of the Amended Witness Statement of Thanos Stylianou, a director of the Respondent.

[2] Lisha Herc v. Hays Specialist Recruitment (Australia) Pty Limited [2022] FWCFB 234.

[4] 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.

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

Debora Tavares Alves v The Trustee For T.C. Future Investment Unit Trust [2025] FWC 2045

At a glance

Court

Decision date

Source

Judgment (216 paragraphs)

Debora Tavares Alves v The Trustee For T.C. Future Investment Unit Trust [2025] FWC 2045 (16 July 2025)

Parties

Legislation Cited (2)