s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time

• [1] Mrs Henderson (Applicant) filed with the Commission two applications under s. 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy against her former employer, Woolworths Group Limited (Respondent). Both applications relate to written notice of termination being given by the Respondent to the Applicant in a letter dated 6 February 2025. That letter, inter alia, informed the Applicant that her "...employment will be terminated, effective 5 March 2025". The dismissal follows a long period of absence, relating to an injury in respect of which a workers' compensation claim was made.

• [2] The first application was filed on 7 February 2025 and discontinued on 27 February 2025. The second application was filed on 10 April 2025. The second application was therefore filed 15 days outside of the standard time permitted by s. 394(2). This decision concerns the second application.

• [3] As the second application was filed out of time, an extension is required in order for the application to proceed. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

• [4] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)[1] a Full Bench of this Commission considered the similar test for extending time for applications for the Commission to deal with disputes over dismissal involving a contravention of Part 3-1, which appears in s. 366(2) of the Act, and said:

• [5] [14] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension. A decision whether to extend time under s.366(2) involves the exercise of a discretion.

• [6] Furthermore, the Full Bench in that case described the task of discerning exceptional circumstances in a manner that was not consistent with a mere "tick a box" approach to the enumerated considerations, but rather involved an evaluation taking into account matters of weight and degree.[2]

• [7] The meaning of 'exceptional circumstances' in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) as follows:

• [8] '[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.'[3]

• [9] The matter before me proceeded by way of determinative conference on 12 May 2025, wherein neither party was represented. Noting that the materials provided by the Applicant referenced "...a claim back in February", I located the first application on the Commission's internal case management system and provided records associated with it to the parties in advance of that determinative conference. The Applicant relied on her application form (for the second application) and annexures thereto, and the contents of an e-mail she provided to the Commission on 5 May 2025. The bundle of documents which had been retrieved in respect of the first application was also tendered. The Applicant substantially adopted, and elaborated upon, the contents of her 5 May 2025 e-mail as her evidence in the extension of time application. The Respondent relied upon the response filed to the Application and made supplementary submissions, but did not call evidence. The Applicant was cross examined.

• [10] Where paragraph (a) of subsection 394(3) requires the reason for "the delay" to be taken into account, the relevant delay is to be taken to be the period between the expiry of the time limit (in this case 26 March 2025) and the filing of the application (in this case 10 April 2025), and does not include the period from the date the dismissal took effect to the end of the 21 day period. Nonetheless, events and circumstances preceding "the delay" may be considered for the purposes of determining the reason for "the delay" and ultimately whether that reason supports a finding that there are exceptional circumstances.[4] An acceptable explanation of the entirety of the delay is not required to make a finding of exceptional circumstances, however it is relevant to have regard to whether the applicant has provided an explanation for the entirety or any part of the delay.[5] Two explanations were offered in this regard. Firstly, it was said in the Applicant's e-mail to chambers that was adopted as her evidence that that the Applicant was initially unaware of the time limit. Secondly, the Applicant said she was experiencing poor health.

• [11] Insofar as a lack of awareness of the time limit is concerned, this is not considered an explanation that - without more - assists the finding of exceptional circumstances in the Applicant's favour.[6] In any event, during cross examination and under questioning from me, the Applicant clarified that she had become aware of the time limit during her discussion with the staff of the Commission in connection with discontinuance of the first application.[7] It is common ground that that discussion took place before date the termination took effect. Whatever might be said about the potential for ignorance of the time limit to be relevant in particular circumstances, it clearly was not a material or operative factor during the period I need to be concerned with.

• [12] As to the second explanation, the Applicant's unchallenged evidence is that during the period from the date the termination took effect and until the date of filing her application she had been suffering from daily episodes of debilitating pain, nausea and inflammation, leaving her bedridden and incontinent.[8] The severity of the symptoms were variously described as "crying in pain"[9], "absolute agony"[10] and leaving her "in bed with my heat pack, a bucket my, water...and that was its just literally ongoing"[11]. These symptoms had commenced before the date the termination took effect, but the Applicant saw her doctor the day after the termination took effect because she felt she was getting worse. The evidence is thus that the period that these symptoms occurred overlapped with, but was not limited to, the period of "the delay". The Applicant said that her symptoms meant that "....all of this [the dismissal and the time limit to make the second application] and even other things that I've had going on in my life its not really been in my mind because I've been so focussed on what's going on with my body and the pain and the nausea that comes with it yeah, its just been horrible"[12]. The Applicant's evidence concerning her physical symptoms was not disturbed on cross examination.[13]

• [13] The Applicant's evidence also disclosed anxiety and depression requiring medication.[14] The medical investigations of the potential causes of the Applicant's physical symptoms and the experience of those symptoms were said by the Applicant to have exacerbated her anxiety.[15] During cross examination it became apparent that the Applicant understood her anxiety had been previously accommodated by Woolworths in terms of what she described as an "exemption" from working on registers, which led to her working mainly in the bakery and occasionally in the online department.[16] As both parties were unrepresented in the matter and it appeared that the issue of the Applicant's mental health at the relevant time may have been of some significance, I took the step of providing the parties with a copy of the decision of Deputy President Easton in Bianca Mamo v. ICLED Australia[17]. That decision provides clear guidance on how the Commission can take into account the experience of mental illness in an assessment of exceptional circumstances in the relevant sense. When providing that decision, I also provided the Applicant a period of time after the conference had concluded to provide further material on her capacity to file her application earlier, and a period of time for the Respondent to respond to that material. The Applicant ultimately decided that she would not provide further material. Accordingly, I am not satisfied that the Applicant's mental capacity provides a credible and reasonable explanation for the delay.

• [14] Nonetheless, I consider that the combination of matters otherwise relevant to the second explanation amount to a credible and reasonable reason for at least part of the delay in this case. The Applicant was clearly suffering considerable pain and restriction in her activities during the period of the delay. Whilst strictly speaking her physical symptoms (whilst severe) might not have accounted for every minute in every day of the delay, there was nonetheless a limitation on the Applicant that on any reasonable view would be considered at least unusual or out of the ordinary course. There are further matters relating to the delay which are addressed in my consideration of the action taken by the Applicant to dispute her dismissal.

Whether the Applicant first became aware the dismissal after it had taken effect

• [15] It is common ground that the Applicant was dismissed on notice and had full knowledge of her impending dismissal before it took effect. The fact of the Applicant filing the first application, the content of both applications and her evidence are consistent with this. I do not consider this matter as weighing in favour of a finding as to the existence of exceptional circumstances.

Action taken by the Applicant to dispute her dismissal

• [16] The Applicant filed the first application the day after the letter giving her written notice of termination was sent. Whilst there is no dispute that the first application was made and made promptly, there is also no dispute that it was not brought to the attention of the Respondent.

• [17] Other than making the first Application, the Applicant's evidence is that she took no further steps prior to filing the second application to notify the Respondent that she disputed her dismissal.

• [18] There are aspects of the handling of the first application that require consideration, bearing in mind that that Commission's own handling of a matter before it may ultimately have some relevance to the assessment of exceptional circumstances.[18] There is no doubt that the first application was made before the dismissal took effect and therefore not made in accordance with the Act. However, it is equally the case that it was possible that such irregularity could have been addressed if an appropriate procedural application were made (although the successes of such application would not be certain).[19] Upon the first application being discontinued, the option of regularising the first application and continuing with it ceased to be available to the Applicant (at least insofar as the Commission's powers were concerned).[20] The Applicant's decision to discontinue first the application was a result of a telephone discussion with a member of staff of the Commission. The Applicant's recollections of this discussion in her evidence before me were limited with respect to whether she agreed she would make the second application on the date the dismissal took effect or within the 21 day time limit thereafter, although she was prepared to accept that she likely volunteered that the 5th of March is when she would do so she and accepted that the time limit was discussed.[21]

• [19] I am satisfied based on the Applicant's evidence that the Applicant was never given the alternative option of making an application to deal with the irregularity in the first application.[22] I am satisfied that the sole option presented to her by the Commission and with which she evidently agreed was to discontinue the first application and make a second Application either on 5 March 2025 or within 21 days thereafter. That was the most prudent option in any event, particularly given that circumstances of the Applicant's future health were not known. But that is not the end of the matter.

• [20] In this case, the Applicant's action in making the error of filing the first application prematurely led to a set of circumstances which caused her to discontinue the first application, when that first application might have been rectified under section 586 of the Act without the need for the second application. These circumstances weigh in favour of the extension of time insofar as they pertain to both the action taken by the Applicant to dispute her dismissal and the consequential exposure to the reasons for delay in making the second application.

• [21] The Respondent has asserted it would be prejudiced by an extension being granted, but has not articulated clearly how this prejudice arises. During closing submissions, I inquired of the Respondent as to how it was in any worse position now to articulate its argument about the lawfulness and reasonableness of the direction it says it gave to the Applicant in writing or the fact of giving it to her. I also inquired as to whether the various items of correspondence or other documents referred to in its response to the claim and the letter giving notice of termination were still available to it.

• [22] The Respondent confirmed that the relevant documents were available[23], but raised the possibility that some witnesses, being part of former management at the store where the Applicant had worked, would no longer be able to provide evidence.[24] The basis for that submission was not explained by evidence, and there is clearly a difference between the unavailability of a witness in an absolute sense and the fact that a potential witness is no longer employed by the Respondent. The lack of supporting evidence and lack of specificity in the submissions advanced on this issue are such that I can place no weight on them.[25] What is clear from the Applicant's evidence that the change in management personnel that she references occurred prior to the dismissal, thus any prejudice that might arise from that change in personnel is not prejudice attributable to the 15 day delay in the filing of the second application. The absence of prejudice, as I have found and as unexceptional as it is, does not in and of itself weigh in favour of a finding of exceptional circumstances.[26]

• [23] Self evidently, the granting of an extension of time disadvantages the Respondent in the sense that it neutralises the strategic advantage that the mere lateness of the filing arms the Respondent with, but that can hardly be said to be exceptional. I regard the issue of prejudice to be neutral in my considerations.

• [24] In determining this extension of time application, the parties have not been required to provide detailed evidence on the merits of the substantive matter. This would not have been an appropriate course. Rather, the instant task insofar as it concerns the merit of the matter is to determine whether the Applicant can establish the matter is not without merit.[27] The Respondent submits that the Application has no merit.

• [25] The termination of the Applicant's employment is said by the Respondent to be the result of the Applicant's failure to follow a reasonable and lawful direction. The nature of the direction was to provide medical information in the form of a medical report addressing particular matters. The Respondent submits that multiple opportunities were provided to comply with that direction. The Applicant has foreshadowed an argument that she received conflicting advice from persons representing the Respondent at various times as to what was required of her and contends that a great deal of medical information has already been provided to the Respondent in connection with her workers' compensation claim. There is clearly a substantial factual contest in relation to matters going to merit. It is likewise by no means clear as matter of general principle that a direction to an employee to provide medical information will be universally accepted as lawful and reasonable in the absence of some consideration of the particular (and in this case, likely disputed) circumstances.[28]

• [26] It is not appropriate in these circumstances to treat the merits of the Application as other than a neutral matter.

Fairness between the person and other persons in a similar position

• [27] The Respondent has raised in its response to the Application that the Commission has previously refused to grant extensions of time for applications lodged 15 days late. That may be so, but without elaboration it does not appear to rise to the level of placing me in a position to make a meaningful comparison between the Applicant and other persons in a similar position. The Applicant made no submissions on this issue. I am not satisfied that this issue is a relevant consideration in the present matter.

• [28] Having taken each of the factors referred to in subsection 394(3), I am persuaded, on balance, to grant the extension of time sought by the Applicant.

• [29] I place substantial weight in the confluence of circumstances relating to the Applicant's health reasons for delay and her previous dealings with the Commission in respect of the first application. The matter may be more finely balanced as to whether each of those circumstances, considered alone, rises to the level of being out of the ordinary course, unusual, or special, or uncommon. However, when considered in combination they are sufficient not only to ground a finding of exceptional circumstances so as to enliven the discretion to allow an extension, but also to justify the exercise of that discretion.

• [30] An Order reflecting this decision will be issued imminently and directions will be made for the further hearing and determination of the matter thereafter.

[1] [2018] FWCFB 901.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) [2018] FWCFB 901 at [38]- [39].

[3] [2011] FWAFB 975.

[4] Kurtev v. KCB Australia & Anor [2025] FWCFB 13 at [24], Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [17].

[5] Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [18].

[6] Mundell v. Avon Products [2013] FWC 1368 at [21], Nicolas v. Nortask [2014] FWC 5324 [62].

[17] [2021] FWC 3903.

[18] JBS Australia v. Barra [2025] FWCFB 15, Hambridge v. Spotless Facilities Services [2017] FWCFB 2811.

[19] Mihajlovic v. Lifeline Macarthur [2014] FWCFB 1070 at [42], Mihajlovic v. Lifeline Macarthur [2014] FWC 1871.

[20] A.B., A A v. Tabcorp Holdings [2015] FWCFB 523.

[25] See Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16].

[26] Ozsoy v. Monstamac Industries [2014] FWCFB 2149 at [38].

[27] Withers v. Contare [2022] FWC 967 at [33]- [37].

[28] Blackadder v. Ramsey Butchering [2002] FCA 603, AIPA v. Qantas Airways [2014] FCA 312, Wildman v. IMCD Australia [2021] FCCA 1161.

Printed by authority of the Commonwealth Government Printer