s 394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time

• [1] On 30 May 2025, Hayley King (the Applicant) applied for an unfair dismissal remedy having been purportedly dismissed by St Marks Anglican Community School (the Respondent) on 4 March 2025. The Applicant lodged her unfair dismissal application with the Commission outside of the statutory time limit period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Respondent objected to the application on two grounds. First, the unfair dismissal application had been filed outside of the statutory period prescribed by s 394(2) of the Act. Second, the Applicant had not been dismissed but had resigned from her position, giving notice of her resignation on 4 February 2025, with her last day of permanent employment being 4 March 2025. It is the first jurisdictional objection that this decision addresses.

• [3] The Act requires the unfair dismissal application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2), if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)-(f) are taken into account.

• [4] Briefly stated, I have found that the Applicant's application was made some 66 days outside of the statutory period and having considered the factors in s 394(3) of the Act, I do not consider the circumstances exceptional. It therefore proves unnecessary to consider whether it is fair and equitable that time should be extended. An extension of time for making the application is therefore declined and accordingly, the application is dismissed. An Order[1] to this effect will be issued with this decision. My detailed reasons follow.

• [5] The broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application are extracted from the chronology provided by the Applicant and her evidence at hearing. The Respondent did not call any witnesses, instead relying on its written submissions.

• [6] The Applicant commenced employment with the Respondent as an Education Assistant in October 2016.

• [7] On 28 January 2025, the Applicant met with her Manager, Rebecca Rourke (Rourke), to request a reduction in her work days from four to three days a week, working in the Maths Department and performing the same role. According to the Applicant, that request was declined and she was informed by Rourke that to work in the Maths Department the Applicant would need to work four days per week.

• [8] The Applicant stated that on 5 February 2025, she emailed the Principal, Steven Davies (Davies), the Deputy Principal, Roseanne Madden (Madden), and the Head of Secondary School, Kelly Nebel (Nebel), to express her concern that she had been mischaracterised and misrepresented by Rourke in respect of her request and that she wanted her voice to be heard. The Applicant noted that as it had been decided she would have to work four days a week to continue in the same role instead of the three days she had requested, she considered she had no option but to offer her resignation. That resignation was accepted by Davies on 6 February 2025.

• [9] The Applicant gave evidence that 21 days after notifying the Respondent of her resignation, she was copied to an email from a fellow Maths Department Education Assistant, Tamara Manger, attaching the timetable for the new employee who was to replace the Applicant. The Applicant pressed that the timetable for the new employee was her timetable minus the one day. The Applicant stated that it was evident that the new employee was employed to do her exact role, but for three days per week.

• [10] According to the Applicant, it was around this time that Rourke advised her that the dates the Applicant had been booked to work relief in May were to cover the new employee whilst the new employee did her practical assessment to obtain her Education Assistant qualification. The Applicant expressed that this was the 'final nail in the coffin' given she had worked for eight years in the role of Education Assistant, she was highly respected and appreciated by staff and students, and the person replacing her did not yet have a qualification. The Applicant said that this event led her to the conclusion that it was for personal reasons that her request for three days had been declined and not because of the number of days requested.

• [11] The Applicant said that on 26 February 2025 she requested a meeting with Rourke and Madden. The Applicant acknowledges that a meeting took place with Madden on 27 February 2025, in which she expressed her concerns about why her request for a three-day week had been declined when the new employee was working three days, and she had been told that she had to work four days to remain in the role. According to the Applicant, the HR Manager, Rebecca Russell (Russell), was called into the meeting by Madden. The Applicant recalled that Madden had said, in front of Russell, that Rourke had indicated or implied that the Applicant refused to do other subjects. The Applicant said she expressed her horror in hearing this and stated to Madden and Russell that Rourke had intentionally misled the executive management about the Applicant's request. The Applicant further noted that she had never refused to do any subject in the eight years she had worked for the Respondent and had not communicated this to Rourke.

• [12] The Applicant stated that on 2 March 2025 and 17 March 2025, she emailed Russell and Madden offering further proof that she had never refused to do other subjects and requesting information about what the next step was and expressing concerns about whether her complaint was being addressed, as she had not received any replies from the Respondent since the meeting of 27 February 2025.

• [13] The Applicant noted that she received a call from Madden on 19 March 2025, but according to the Applicant, Madden had not investigated the matter. The Applicant said she sent an email to the Respondent that same day reiterating her beliefs about the situation with the new Education Assistants and their subject allocation.

• [14] On 26 March 2025, Madden is said to have called the Applicant to inform her that her complaint was now being handled by Human Resources.

• [15] On 2 May 2025, the Applicant received a phone call from the HR Manager, informing her that an external investigator would be meeting with her to hear her complaint. A meeting between the Applicant and the external investigator took place on 8 May 2025 and by 14 May 2025, the Applicant was informed by the Respondent that the external investigator had been engaged to investigate her complaint.

• [16] The Applicant said that she lodged her unfair dismissal application following the receipt of two emails from the the independent investigator (containing the draft allegations). The Applicant said that she became concerned, again, that her complaint was not being handled appropriately nor was her voice was being heard given the inaccuracies in the draft allegations.

• [17] For its part, the Respondent accepts that on 28 January 2025 it declined the Applicant's request to reduce her working days from four to three and as a result, the Applicant subsequently communicated her intended resignation on 4 February 2025, which was due to take effect on 4 March 2025.

• [18] The Respondent submits that it denies that it mischaracterised the Applicant's reason for resigning or mischaracterised the conversations leading to the Applicant resigning.

• [19] In respect of the meeting on 27 February 2025, the Respondent submits that during the meeting Madden provided the Applicant with the option of retracting her resignation, but the Applicant chose not to do so. The Applicant gave evidence at hearing that whilst she was offered the opportunity to retract her resignation, the offer was made by Russell. It was clear from the Applicant's evidence that she considered the offer disingenuous.

• [20] In Herc v Hays Specialist Recruitment (Australia) Pty Ltd (Herc),[2] the Full Bench of this Commission observed that the question of whether an application for an unfair dismissal remedy is made outside the statutory timeframe is not strictly a jurisdictional objection.[3] It appears to have been proposed that an unfair dismissal application made outside the time required in s 394(2) is not validly made unless, and until, a further period has been granted.[4] According to the Full Bench in Herc, a proper approach is to first consider whether an application is made within the required statutory period and if not, whether a further period should be granted, before contending with an argument that there has been no dismissal.[5]

• [21] As to the order by which jurisdictional objections to unfair dismissal applications may be considered, the decisions of Herc, The Church of Ubuntu Inc v Ms Lainie Chait[6] and The Church of Ubuntu Inc v Ms Lainie Chait[7] provide guidance in this respect. Before determining the jurisdictional objection that the Applicant was not dismissed because she voluntarily resigned from her position, I have considered the extension of time issue - noting that such an approach does not appear inconsistent with the authorities cited.

• [22] For the Applicant's unfair dismissal application to now proceed, it is necessary for her to obtain an extension of time in which to make the application. 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 of 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.

• [23] Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are 'exceptional circumstances'. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[8] It is accepted that 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, can be considered exceptional.[9]

• [24] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, clarification was provided by the Full Bench regarding the assessment of exceptional circumstances:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[10]

• [25] In respect of the first factor, the Act does not specify what reasons for delay might fall in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[11] 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.[12]

• [26] The relevant period required to be considered under s 394(3)(a) of the Act is the period after the 21-day timeframe for lodging the application.[13] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[14]

• [27] In respect of the delay, the Applicant's primary reason for the delay is found at questions 1.4 and 2.1 of her unfair dismissal application:

It was disclosed to me well after my resignation that my manager had in fact lied about the circumstances around my leaving, resulting in senior management rejecting my request for a change to my work days. The deputy principal told me herself that my immediate manager had indicated I refused to do things, which was an intentional lie. I have documented proof to the contrary.

I am lodging this even though it is outside the deadline date following a conversation with my lawyer. I will be applying for an extension, as the lie was disclosed weeks after my resignation and my belief is that the delays from the school in responding to my concerns and requests for follow-ups were intentional in the hopes I would simply give up.

• [28] The Applicant's evidence was that as of 5 February 2025, she was sufficiently concerned that she had been mischaracterised and misrepresented by Rourke in respect of her request to drop her days (and her preferred work department/area), and hence emailed Davies, Madden and Nebel, to express those concerns. Further, notwithstanding those concerns, the Applicant tendered her resignation on that same day.

• [29] On 26 February 2025, the Applicant requested a meeting with Rourke and Madden, which took place with Madden on 27 February 2025. The Applicant gave evidence that in the meeting she expressed her concerns about why her request for a three-day week had been declined when the new employee was working three days, and she had been told that she had to work four days to remain in the role. The Applicant recalled that Madden had said, in front of Russell, that Rourke had indicated or implied that the Applicant refused to do other subjects, to which, the Applicant said, she expressed her horror.

• [30] The Applicant stated that on 2 March 2025 she emailed Russell and Madden offering further proof that she had never refused to do other subjects and requesting information about what the next step was.

• [31] The Applicant's evidence demonstrates that prior to her last day of permanent employment on 4 March 2025, she had formed the view that Rourke had communicated to the executive management that because the Applicant had refused to do subjects other than maths, the three-day week had been declined.

• [32] The Applicant's claim of exceptional circumstances, relies, in part, upon an assertion that it was disclosed to the Applicant well after her resignation that her manager had lied about the circumstances around her leaving. Whilst the Applicant's evidence supports a finding that it was after having given notice of her resignation that she formed the view that Rourke had mischaracterised and misrepresented her, it is not the case that such view formed after her last day of permanent employment. Prior to 4 March 2025, the Applicant had formed a view about Rourke's conduct and had addressed the mischaracterisation and misrepresentation, in the meeting with Madden on 27 February 2025 and in an email on 2 March 2025. It therefore does not follow that the disclosure of the 'lie' weeks after the Applicant's notification of her resignation provides plausible reason for the period of the delay or part thereof, if relied upon for that purpose. It was open to the Applicant to promptly bring an unfair dismissal application within the statutory period.

• [33] At question 2.1 in her unfair dismissal application, the Applicant expresses that she applied for an extension because, in part, she considered that the delays from the school in responding to her concerns and requests for follow-ups were intentional in the hope that she would simply give up. In the Applicant's written materials, the Applicant noted her dissatisfaction with the two emails from the the independent investigator (containing the draft allegations) where she considered that there were inaccuracies in her claims. The Applicant said that she became concerned, again, that her complaint was not being handled appropriately nor was her voice was being heard. It was at this point that the Applicant made her unfair dismissal application.

• [34] If it is the case that the Applicant proposes that the delay in making her application can be attributed to her seeking an internal investigation into the circumstances of her resignation, attempting to resolve matters with the school independent of a third entity, or awaiting the outcome of the Respondent's internal investigative process (through the hiring of an independent investigator), these reasons do not constitute plausible reasons for the delay in making an unfair dismissal application. It was not until the Applicant had reached a point of dissatisfaction with the Respondent's investigative process that she decided to make the unfair dismissal application. It is not apparent that the Applicant perceived a sense of urgency in making such application and the evidence is not suggestive that the Applicant was unaware of the timeframe prescribed under s 394(2)(a).

• [35] In Gao v Department of Human Services, the Full Bench of what was then Fair Work Australia, accepted that a delay due to an employee seeking an internal review was not a reasonable explanation for the delay:

...Furthermore, Mr Gao's request that DHS further review the dismissal did not constitute a circumstance excusing the delay in lodging the application. A further review could have been sought even after an application had been lodged.[15]

• [36] In my view, the reasons for the delay when considered together are insufficient to explain part of, or the entirety of, the delay period. These findings together weigh against a finding of exceptional circumstances. In arriving at my finding, I have considered the delay as the period beyond the 21-day period and have considered the events leading to the Applicant's notice of her resignation and what unfolded thereafter.

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

• [37] On 5 February 2025, the Applicant became aware that her permanent employment would come to an end as of 4 March 2025. The Applicant had given notice of her resignation and was therefore amply aware of when her last date of permanent employment would be. It was therefore not the case that the Applicant was taken by surprise by the end of her permanent employment.

• [38] Given the Applicant provided notice to the Respondent on 5 February 2025 that her employment would end on 4 March 2025, and noting further that the Applicant had formed a view by 27 February 2025, if not 2 March 2025, that Rourke had mischaracterised and misrepresented her request to drop to three days, the Applicant had time in which to consider her options with respect to the recourse she could pursue. On balance, I consider this to be a factor that does not weigh toward a finding of exceptional circumstances.

3.3 Action taken by the person to dispute the dismissal

• [39] It is to be appreciated that the Respondent holds the view that the Applicant voluntarily resigned from her position and therefore was not dismissed, and the Applicant considers she was dismissed.

• [40] I accept that the Applicant raised concerns with the Respondent relating to the conduct of Rourke insofar as the Applicant considered that Rourke had misrepresented and mischaracterised the Applicant's request for a reduction in her days from four to three. During the period of her notice between 4 February 2025 and 4 March 2025, the Applicant had, on 26 February 2025, requested a meeting with Madden and attended a meeting on the following day. In that meeting the Applicant expressed her concern and confusion regarding the Respondent's refusal to permit a three-day week, and according to the Applicant, she expressed her belief that Rourke had intentionally misled executive management about her request. On 28 February 2025 and on 2 March 2025, the Applicant sent emails to the Respondent to offer evidence that she had not previously refused to do subjects other than maths.

• [41] After 4 March 2025 up until the time when the Applicant as due to file an unfair dismissal application within the statutory period, the Applicant sent two emails to follow up on her concerns and engaged in a phone call with Madden, where she assured Madden that she wanted Madden to act/investigate the issue of Rourke's purported misrepresentation and mischaracterisation.

• [42] Having considered the totality of the evidence, I am persuaded that the Applicant disputed the basis upon which she resigned from her position. By this I mean, that the Applicant gave notice of her resignation after having been informed by Rourke that a reduction to three days was not approved and the Applicant was unwilling at that stage to work four. In the latter part of February 2025, however, the Applicant became aware that three days was apparently a viable option because she had reviewed the timetable of the new employee engaged to replace her, and that employee was working three days. The Applicant subsequently raised the issue with the Respondent on multiple occasions (as described). On balance, the evidence favours a finding that the Applicant took action to dispute the basis of her resignation, and I am satisfied in these circumstances that this weighs toward a finding of exceptional circumstances.

• [43] The Respondent submitted that it would be subject to prejudice if the extension of time were granted. That prejudice, according to the Respondent, arose from having already employed an employee to replace the Applicant, as was acknowledged in the Applicant's own evidence. The Respondent pressed that it would cause the Respondent an unfair disadvantage if an extension was granted, because there were no positions available for the Applicant.

• [44] When considering the factor of prejudice to the employer, the Commission considers whether the delay has caused the employer to suffer prejudice and whether the purported prejudice would not have been suffered had the application been made within 21 days of the dismissal taking effect. The purported prejudice in this case is the new hire - albeit from the Applicant's evidence and from the Respondent's submission, it would appear that the appointment of the new employee was determined prior to the delay period.

• [45] In GHD Pty Ltd v Black,[16] it was said that it is well accepted that a lengthy delay gives rise to a general presumption of prejudice.[17] In that case, the Full Bench held on appeal that a 168-day delay may impair the recollection or availability of witnesses and thereby give rise to a relevant prejudice.[18] The length of the delay is not so long in this case and there is no suggestion that those involved in the management of the Applicant's case by the Respondent are no longer employed.

• [46] Having considered the material before me, I am not satisfied that the factor of 'prejudice' in this matter weighs toward a finding of exceptional circumstances and therefore consider it neutral.

• [47] Should the matter proceed further the threshold issue for determination is whether the Applicant was dismissed in circumstances where she resigned. It will therefore fall upon the Applicant to adduce probative evidence that the Respondent terminated her employment at its own initiative and/or that the course of conduct engaged in by the Respondent left her with no choice but to resign. Whilst there is some agreement between the parties as to the dates and times of emails and meetings, whether the Applicant was dismissed is clearly contentious.

• [48] In Telstra Network Technology Group v Kornicki,[19] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:

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.[20]

• [49] Evidence on the jurisdictional objection is not commonly called at an extension of time hearing. As a result, the Commission is not positioned to embark on a detailed consideration of the jurisdictional objection or the substantive case for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[21] The jurisdictional objection more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the resignation if an extension of time were granted, and the matter proceeded. It follows that the merits prove a neutral consideration in the circumstances.

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

• [50] The criterion of 'fairness as between the person and other persons in a similar position', was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[22]

• [51] Based on the submissions filed, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party. As such, I consider it a neutral consideration.

• [52] The test of exceptional circumstances in s 394(3) of the Act is a stringent one.

• [53] In my view, the Applicant's explanation for the period of the delay is unsatisfactory for the reasons detailed. The remaining matters I need to consider are otherwise neutral in this respect (ss 394(3) (d), (e) and (f)), or do not weigh toward a finding of exceptional circumstances (ss 394(3)(b)). The exception to this is that I have found that the Applicant took steps to dispute the basis of her resignation (s 394(3)(c)).

• [54] Having considered the submissions and evidence, I am not persuaded on balance that there are exceptional circumstances that warrant the grant of an extension of time. Whilst the Applicant disputed the basis for her resignation, it was not until she had reached a point of dissatisfaction with the Respondent's internal review procedure that she opted to make an application to the Commission. This is the case notwithstanding that she was fully informed of her last date of her permanent employment and had become aware prior to that date of the issues concerning the new employee being purportedly provided with a three-day timetable. It is not apparent that the Applicant placed primacy on making her unfair dismissal application. Given exceptional circumstances have not been demonstrated, it is unnecessary to consider whether it is fair and equitable to grant the extension.

• [55] The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act. As noted, the application for an unfair dismissal remedy is therefore dismissed.

[1] PR790107.

[2] [2022] FWCFB 234.

[6] [2023] FWCFB 20.

[7] [2023] FWCFB 198.

[8] [2011] FWAFB 975, [13].

[10] [2018] FWCFB, [38] (emphasis in original).

[13] Long v Keolis Downer [2018] FWCFB 4109, [40].

[14] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12].

[15] [2011] FWAFB 5605, [10].

[16] [2023] FWCFB 38, [51] (GHD).

[17] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556; Brodie-Hanns v MTV Publishing Ltd

(1995) 67 IR 298, 299-300.

[19] (1997) 140 IR 1.

[21] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000), [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

[22] [2015] FWC 8885, [29].

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