s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objections raised - whether dismissed within meaning of s 386 - whether application made within 21-day statutory time period - not dismissed within meaning of s 386 - in the alternative whether an extension of time should be granted - no exceptional circumstances - extension of time not granted - application dismissed

[1] This decision concerns an application made by Ms Elizabeth Reardon (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant, who was employed by Olga De Polga Pty Ltd (the Respondent), alleges she was dismissed on 14 November 2025. The unfair dismissal application was lodged by the Applicant on 18 December 2025. In its Form F3 response the Respondent raised two jurisdictional objections to the application. It contends the Applicant was not dismissed and that the application was filed outside the 21-day statutory filing period.

[2] The matter was set down for a conference to deal with the Respondent's jurisdictional objections on 16 March 2025, in advance of which both parties filed material in accordance with directions issued. At the conference, the Applicant appeared and gave evidence. The Respondent was represented by Ms Olga Stone - Director, who gave evidence and also called Ms Katelyn Naylor - Ecommerce and Marketing Communications Coordinator and Mr Luka Ruiz Stone - General Manager to give evidence.

• [3] The Applicant commenced employment with the Respondent on 9 July 2024 and states she was engaged on a full-time basis as the Marketing Manager, although accepted that she did not have a written contract of employment. Ms Stone disagrees and maintains that the Applicant was employed on a casual basis as a Marketing Assistant, primarily worked from home and received $45 per hour: referring to timesheets[1] that showed fluctuating hours of work. Without resolving the disputed question of the Applicant's employment status, I proceed on the basis that she was a casual employee on the given her fluctuating hours of work and the absence of any form of paid leave during her employment. Accepting that the Applicant was a casual employee, there is no doubt that the Applicant was regularly and systematically engaged for at a continuous period of at least 12 months and during that period had an ongoing expectation of employment.

• [4] The Applicant states she experienced a workplace incident on 29 October 2025 involving the son of Ms Stone. She says this caused her to start experiencing significant psychological distress which prompted her to obtain a medical certificate on 5 November 2025[2] that covered her absence from work from 6-13 November 2025 inclusive and states she was suffering from 'Acute stress reaction and emotional distress secondary to workplace bullying and harassment, likely related to age discrimination.' Ms Stone states that the Applicant failed to provide the 5 November 2025 medical certificate until 17 November 2025 and actually attended work on 6 & 7 November 2025. Ms Stone also disputes the date of the alleged incident that prompted the Applicant to obtain the medical certificate, claiming that it actually occurred on 5 November 2025. Nothing turns on the date of the alleged incident in circumstances where the Applicant obtained the medical certificate on 5 November 2025.

[5] The Applicant was questioned on why she attended work on 6 & 7 November 2025, despite having obtained a medical certificate on 5 November 2025 that stated she was unfit for work from 6-13 November 2025 inclusive. She explained that she felt compelled to complete her tasks prior to going off on leave. She explained her failure to provide the 5 November 20-25 medical certificate to the Respondent until 17 November 2025, was due to her not seeking to rely on the certificate during the period of her pre-arranged leave. Ms Stone stated during cross-examination that the Applicant appeared composed and normal when she attended work on 6 & 7 November 2025 and questioned why she did not provide the medical certificate immediately at the time she obtained it.

• [6] The Applicant states she commenced a period of annual leave on 7 November 2025. On Saturday 8 November 2025 she received an email from Ms Stone proposing that her hours of work would reduce from 5 days to 4 days per week and that there would also be a change in her duties.[3] The Applicant responded to this email on 11 November 2025, confirming her acceptance of the proposed changes. She also noted in her response that she was scheduled to return from leave on 18 November 2025.[4] The Applicant claimed during cross-examination that Ms Stone made multiple phone calls to her on 11 November 2025, a claim steadfastly rejected by Ms Stone. Neither party provided phone records to assist establish the veracity of their competing evidence.

• [7] Ms Stone also challenged the Applicant's evidence that she was on approved annual leave in the period from 7-18 November 2025 on the basis that the Applicant was a casual employee. She refers to the leave records system which showed the annual leave application was actually rejected.[5] She was however aware that the Applicant was not available for work in that period as she had advised Ms Stone several months earlier that she was going away in that period. Ms Stone also confirmed that as a casual employee, the Applicant was never previously paid for time off work.

• [8] Ms Stone explained that the change in the Applicant's hours of work was driven by an organisational restructure[6]. She further states that following receipt of the Applicant's 11 November 2025 email, a telephone conversation took place between her and the Applicant. Ms Stone states that during the phone call she pressed the Applicant about tasks left incomplete when she went on leave, to which she says the Applicant did not respond. Ms Stone states she was initially unaware that the Applicant had her phone on speaker during the call, which allowed the Applicant's mother to listen to the conversation. Ms Stone refutes that she dismissed the Applicant during that phone call, states she did not tell the Applicant not to return to work and claims that the call ended abruptly when the Applicant hung up, a claim rejected by the Applicant. Mr Ruiz Stone confirmed in his evidence that he overheard the 11 November 2025 telephone conversation as he was in Ms Stone's office, a point not initially disclosed to the Applicant at the time. He confirmed during cross-examination that the call ended abruptly at the Applicant's initiative.

• [9] The Applicant states that while still on leave, she attempted to access her work email account on 14 November 2025. In doing so she discovered that her access to all of the Respondent's work systems had been removed.[7] This included removal from the businesses' WhatsApp group communication channel.[8] When cross-examined, the Applicant agreed that the screenshot she took of her system access denial was taken on 26 November 2025 and it (the screenshot) indicated that her password had been changed 9 days previously, meaning her password had been changed on 17 November 2025. The Applicant nonetheless maintained that she attempted to access the workplace systems on 14 November 2025 but was unable to do so. Ms Stone gave evidence during cross-examination that the system access denial the Applicant referred to and provided a screenshot of was just the Respondent's Google Drive which was used for accessing emails. Ms Stone explained there were other systems the Respondent used that required separate passwords to access.

[10] The Applicant states she took her claimed systems access denial and her removal from the WhatsApp group as constituting her dismissal on 14 November 2025. She says she was not notified of her dismissal, either verbally or in writing, was not informed her employment was at risk, was not invited to a meeting to discuss any concerns, was not provided with an opportunity to respond, received no payment after 14 November 2025 and received no contact from the Respondent after that date. She further states that she did not receive any correspondence from the Respondent requesting advice about her absence or putting her on notice that she had abandoned her employment. When questioned on why she made no contact with the Respondent after 11 November 2025, she explained that she was 'overwhelmed' by the events of the week of 8 November 2025 and chose not to contact the Respondent.

[11] Ms Stone denies that the Applicant's access to work systems was removed as claimed and refers to the Google Drive access denial being the only matter dealt with in the Applicant's evidence. She notes that the Applicant was unavailable for work between 10-18 November 2025, during which time the periodic update of passwords of employees occurred, this being a standard security practice. Ms Stone goes on to state that because the Applicant was on leave at the time, a new password was not issued to her, and the Applicant did not make any contact after 18 November 2025 to ask for a new password. As regards the Applicant's removal of access to the WhatsApp group, Ms Stone explained that it was operationally unnecessary for her to remain in that group. Ms Stone maintains the Applicant was not blocked from contacting the business.

• [12] On 17 November 2025, the Applicant lodged a WorkCover claim,[9] citing she was suffering from severe anxiety arising from the workplace incident on 29 October 2025. She also furnished two medical certificates to the Respondent on that same date, which indicated she was unfit for work from 6-13 November[10] and 14-28 November 2025.[11] The Applicant's WorkCover claim was rejected by the Respondent's insurer on 16 December 2025.[12]

[13] When questioned why she did not contact the Applicant after 11 November 2025, Ms Stone explained that the Applicant was on a pre-arranged absence between 8-18 November and was then on a period of personal leave covered by a medical certificate covering the period between 18-28 November 2025. She explained that any contact in that period might have been construed by the Applicant as harassment given the allegations made by the Applicant arising from the alleged incident of 29 October 2025. After 28 November 2025, Ms Stone says she acted on advice of her WorkCover insurer to not contact the Applicant directly given the Applicant's WorkCover claim was being assessed.

• [14] The Respondent also raised two emails sent by the Applicant to one of the Respondent's suppliers, Digital Six advertising, which the Respondent became aware of on or about 4 December 2025. The emails sent on 21 October and 22 October 2025[13] appear highly critical of the Respondent and the Applicant's treatment by Ms Stone as well as disclosing confidential information relating to the Respondent's business.

[15] The Applicant was also questioned in relation to the late filing of her application, in response to which she gave the following evidence;

• confirmed the delayed filing of her application was attributable to her medical condition, the fact that she was obtaining medical treatment at the time and because of the traumatic events and circumstances surrounding her dismissal;

• conceded she prepared and filed a WorkCover claim in the period following her alleged dismissal when she says she was unable to manage administrative tasks;

• agreed the Form F2 application form was a straightforward easily completed form as was the WorkCover claim form;

• confirmed she could have filed her unfair dismissal application at an earlier time then she did but delayed completion of the application on advice of her GP that she should prioritise her health and WorkCover claim;

• she had made no other claims other than filing her application;

• confirmed she understood she had been dismissed on 14 November 2025;

• confirmed she had not sought any independent advice following her dismissal and had been attempting to understand in her own mind the status of her employment; and

• reaffirmed that she had been unfairly dismissed because her dismissal lacked a valid reason and that a procedurally fair process was not followed by the Respondent.

[16] The threshold issue to be determined in this matter is whether the Applicant has been dismissed from her employment. The circumstances in which a person is taken to be "dismissed" are set out in s 386 of the Act. Section 386(1) relevantly provides as follows:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[17] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

[18] The Applicant contends she was dismissed by the Respondent on 14 November 2025. It is relevant to recount there was a 'difficult' telephone conversation between the Applicant and Ms Stone on 11 November 2025. There is no evidence from the Applicant that Ms Stone told the Applicant she had been dismissed. During cross-examination, the Applicant agreed she was neither told she was dismissed nor told she should not come back to work. This is consistent with Ms Stone's evidence in which she refutes any suggestion that she dismissed the Applicant during the telephone conversation on 11 November 2025. I am satisfied that Ms Stone did raise the Applicant's work performance during the phone conversation but did not state during the conversation that the Applicant was dismissed. On that basis, I am satisfied that the Applicant's employment remained on foot, at least on 11 November 2025.

[19] The next event of significance was the Applicant's claimed inability to access the Respondent's work systems on 14 November 2025 and her removal from the WhatsApp group. The claim that the Applicant was unable to access the workplace systems on 14 November 2025 was not supported by the evidence, which actually revealed the Applicant's password to access the Respondent's Google Drive was changed on 17 November 2025. Ms Stone explained that this was due to periodic password change security requirement. As to the WhatsApp group, Ms Stone claimed the Applicant did not require access to that group as it was only intended to include sales and warehouse staff. I found Ms Stone's explanation for the password change to be credible, but she was less convincing in relation to the Applicant's WhatsApp group removal. Nevertheless, the Applicant took no steps to clarify the status of her employment and lodged a WorkCover claim on 17 November 2025 as well as providing two medical certificates to the Respondent covering her absence from work for the period from 6 - 28 November 2025. The fact that she made a WorkCover claim, supplied two medical certificates to the Respondent and did not otherwise raise the issue of her employment status, strongly suggests the Applicant remained an employee of the Respondent as of 17 November 2025 and knew that to be the case.

[20] No other action was taken by the Respondent after the Applicant made her WorkCover claim on 17 November 2025. While it is perhaps understandable that the Respondent acted on its insurer's advice to not contact the Applicant in the wake of the WorkCover claim, the Respondent should have contacted the Applicant if for no other reason than to check on her welfare. Unfortunately, neither Ms Stone nor the Applicant reached out to each other in relation to the Applicant's employment status. For her part, the Applicant states she believed she had been dismissed, on the flimsiest basis in my view; while Ms Stone believed the Applicant had abandoned her employment but took no action to clarify that belief with the Applicant. Both the Applicant and Ms Stone are deserving of criticism for their communication failures.

[21] Returning to whether the Applicant was dismissed at the initiative of the Respondent, there was no communication of a dismissal, either verbally in writing. The Applicant inferred she had been dismissed based on her access to the work systems and the WhatsApp group being removed, yet she proceeded to make a WorkCover claim and furnish medical certificates on 17 November 2025. I am not satisfied that the alleged severing of her access to work systems on 14 November 2025 constituted a dismissal at the initiative of the Respondent when the Applicant's subsequent actions are considered. It is also significant that the Applicant did not challenge her alleged dismissal until her WorkCover claim had been rejected. The timing of the application is not merely coincidental in my view.

[22] It follows from the foregoing that I am not satisfied that the Respondent made clear to the Applicant that no more casual work would be offered to her. As such, the Applicant was not dismissed at the initiative of the Respondent within the meaning of S 386(1) of the Act. If, however, I am wrong in that conclusion it falls to me to deal with whether an extension of time should be granted for the Applicant to file her application. I turn to that now.

[23] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 394(2) of the Act. If the dismissal took effect on 14 November 2025 as claimed by the Applicant, the period of 21 days ended at midnight on 5 December 2025. The application was therefore filed 13 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3) of the Act.

• [24] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances.' Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[14] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[15]

[25] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

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

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

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

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

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

[27] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.

• [28] As earlier stated, for the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 5 December 2025. The delay is the period commencing immediately after that time until 18 December 2025, although circumstances arising prior to that day may be relevant to the reason for the delay.[16]

• [29] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[17] An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay.[18]

[30] The Applicant submits she was dismissed during a period of leave while she was under medical care and experiencing trauma symptoms, including distress, impaired concentration, nausea and significantly reduced capacity to manage administrative and legal matters. She refers to her medical certificates dated 5 November and 14 November 2025 as well as a medical report dated 18 February 2026 prepared by Dr Fleur Christopherson, a General Practitioner (GP) based at the Benalla Church Street Surgery Pty Ltd. The Applicant also refers to having been trying to understand her employment status at the time of her dismissal while prioritising her medical treatment and states that she filed her application when she was sufficiently stable and had obtained advice. She argues the delay was directly attributable to her medical condition and the circumstances of her dismissal.

[31] Turning firstly to the medical evidence. The medical certificates dated 5 and 14 November 2025 state that the Applicant was unable to work. They do not however speak to the nature of the Applicant's limitations and whether that impacted on her ability to file her application at an earlier time than she did. The Applicant's evidence of her incapacity at the time of the dismissal is undermined by the fact that the 5 November 2025 certificate states she was unable to work between 6-13 November 2025, yet she performed work on 7 & 8 November 2025 and according to Ms Stone appeared composed and normal on those days. The fact that the Applicant performed work on those two days cannot be easily reconciled with the medical certificate.

[32] As regards the 18 February 2026 medical report, it provides some detail on the Applicant's condition. It states the Applicant has a diagnosis of adjustment disorder with mixed anxiety and depressed mood and that she attended appointments on 14 November, 24 November, 1 December 2025 and 6 January 2026. She also had phone consultations on 8 December 2025 and 16 January 2026. The report goes on to state that the Applicant experienced anxiety, nausea, insomnia and significant distress when discussing the workplace incident and that she had significant difficulty in managing basic activities of daily living, including leaving the house. Dr Christopherson was not called to give evidence or available to be cross-examined on her medical report. It is also not clear whether the 'diagnosis' Dr Christopherson referred to was made by her, a psychologist or other treating specialist.

[33] One of the problems with the 18 February 2026 medical report is that it states the Applicant had significant difficulty in managing daily activities. That incapacity is directly contradicted by the Applicant's ability to complete the WorkCover claim on 17 November 2025, which fell in the period within which the Applicant says she was unable to manage administrative matters. I also note for the sake of completeness that the Applicant's unfair dismissal application was filed immediately following the rejection of her WorkCover claim, falling squarely in the period Dr Christopherson states the Applicant was incapacitated.

[34] The Applicant claimed she filed her application once she had obtained advice and was 'stable.' I note however that the medical reports she has furnished in evidence do not provide any insight to when the Applicant's condition stabilised. Significantly, the Applicant variously conceded during cross-examination that she delayed filing her application on 'advice' of her GP, that the Form F2 was a straightforward form and that she could have filed the application at an earlier time then she did. Given the tension between the various medical certificates and report tendered and the Applicant's demonstrated capacity to pursue a WorkCover claim, I am not satisfied that the Applicant was so incapacitated that she could not have prepared and filed her application at an earlier time.

[35] It follows from the foregoing that I am not satisfied that the Applicant has advanced an acceptable explanation for the delay in filing her application for an unfair dismissal remedy. The absence of an acceptable explanation for the filing delay weighs against a conclusion that there are exceptional circumstances.

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

[36] The Applicant states, and I accept, that she became aware of her dismissal on the same day that it took effect on 14 November 2025. She therefore had the benefit of the full period of 21 days within which to lodge her unfair dismissal application. This weighs against a finding of exceptional circumstances.

[37] No action was taken by the Applicant to dispute the dismissal other than filing her unfair dismissal application. I regard this factor as a neutral consideration.

[38] The application was filed 13 days outside of the 21-day period. The Respondent has not advanced any material or submission that persuades me that it would suffer prejudice if an extension of time were granted. I regard this factor as a neutral consideration.

• [39] The Act requires me to take into account the merits of the application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[19] it said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

• [40] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case"[20] for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.

[41] The Applicant submits her dismissal was unfair for the following reasons. Her access to the work systems was removed during a period of leave, she was not provided with a valid reason for dismissal, she was not informed her employment was at risk, was not given an opportunity to respond, was not provided with notice of termination and payment ceased without explanation.

[42] While the Respondent maintains its position that the Applicant was not dismissed, it has raised matters going to the Applicant's conduct in the period prior to her dismissal, that of sending inappropriate emails to a supplier of the Respondent in October 2025. Those emails appear highly critical of the Respondent and also appear to disclose confidential information. Such conduct if established may constitute misconduct justifying dismissal.

[43] It is evident to me that the merits of the Application are likely to turn on contested points of fact which would need to be tested if an extension of time were granted, and the matter were to proceed. The Applicant has put forward an arguable case that her dismissal was unfair while the Respondent has raised a prima facie defence. In these circumstances the merits of the case tell neither in favour nor against an extension of time being granted. I regard this factor as a neutral consideration.

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

[44] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party raised, nor am I aware of any relevant matters. In these circumstances, I attribute neutral weight to this factor.

[45] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time.

[46] I have found that the Applicant was not dismissed within the meaning of s 386 of the Act. Accordingly, at the time the Applicant made her application on 18 December 2025, she was not a person who had been dismissed for the purposes of s 394 of the Act. The Respondent's jurisdictional objection is therefore upheld.

[47] I have further found that if I am wrong in my conclusion that the Applicant was not dismissed within the meaning of s 386 of the Act, I would in any event decline to grant an extension of time for the filing of the application for the reasons set out above.

[48] The application is therefore dismissed. An order giving effect to this decisions will be separately issued.

[1] Exhibit R4, Second Witness Statement of Olga Stone, Annexure C, Court Book p.69

[5] Exhibit R2, Second Witness Statement of Olga Stone, Annexure K, at Court Book p.100

[6] Exhibit R1, First Witness Statement of Olga Stone, Annexure H, at Court Book p.55

[9] Exhibit R1, Annexure E, at Court Book p.40

[10] Exhibit R1, Annexure H, at Court Book p.99

[11] Exhibit R2, Annexure G, at Court Book p.98

[12] Exhibit R1, Annexure F, at Court Book p.51

[13] Exhibit R2, Annexure M, at Court Book pp.102-104

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

[16] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

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

[19] Print PR3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[20] Kyvelos v Champion Socks Pty Ltd, Print T2421, 10 November 2000, at [14].

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