Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application - dispute about dismissal date - extension of time required - exceptional circumstances found - extension of time granted.

• [1] Helen Dickins commenced employment with Skybridge Management Pty Ltd (Skybridge) in a reception and administration role at its Inverell office on around 6 November 2023. Ms Dickins' employment ended at the initiative of Skybridge on the ground of redundancy in April 2025. The effective date of dismissal is in dispute. Skybridge argued that Ms Dickins' dismissal was communicated to her via email on 21 and 22 April 2025 and took effect on 22 April 2025. Ms Dickins argued that she did not receive the relevant emails on 21 and 22 April 2025, and that she did not become aware of her dismissal until 24 April 2025. The dismissal date is important because Ms Dickins' application was filed on 14 May 2025. That date was within 21 days of the dismissal, if it took effect on 24 April 2025. However, if Skybridge is correct and the dismissal took effect on 22 April 2025, Ms Dickins needs an extension to file her unfair dismissal application.

• [2] This decision concerns the effective date of Ms Dickins' dismissal and, if required, whether an extension of time should be granted. A hearing was conducted via video on 29 July 2025. Ms Dickins represented herself at the hearing. I granted permission for Skybridge to be represented by Brodie Verri (Avern McIntyre & Co) on the basis that granting representation would enable the matter to be dealt with more efficiently. Ms Dickins provided a witness statement dated 16 July 2025. Jason Birch (Managing Director) provided a witness statement dated 25 July 2025 on behalf of Skybridge. Ms Dickins and Mr Birch were cross-examined during the hearing on 29 July 2025.

• [3] Ms Dickins gave compelling evidence that she did not receive emails sent by Mr Birch on 21 and 22 April 2025 regarding her dismissal. Ms Dickins also sought assistance from an external specialist who provided a report which indicates that Mr Birch's email on 22 April 2025 was not located in Ms Dickins' email account.

• [4] Mr Birch provided copies of emails he sent to Ms Dickins' personal email address on 21 and 22 April 2025 which had her termination letter attached. Mr Birch gave evidence that he sent the emails to the email address nominated by Ms Dickins and was not advised that the emails were not received.

• [5] I am confused about what has occurred in relation to Mr Birch's emails to Ms Dickins on 21 and 22 April 2025. Ms Dickins is adamant she did not receive either email. Ms Dickins' conduct in attending work on 22 April 2025 is not consistent with her being aware that her role had been made redundant. Skybridge's conduct in requesting a medical certificate from Ms Dickins after she left work on 22 April 2025 is also not consistent with Ms Dickins having already been notified of her dismissal on 21 April 2025.

• [6] On balance, I consider it is appropriate to rely on the documentary evidence provided by Mr Birch to conclude that he sent emails to Ms Dickins on 21 and 22 April 2025 with a copy of the redundancy letter attached. It would be a serious matter to find that Mr Birch fabricated the emails or created the termination letter after he had already sent the first email on 21 April 2025, as suggested by Ms Dickins. The evidence does not warrant that type of finding against Mr Birch.

• [7] Given I have found the emails were sent by Mr Birch, they are taken to have been received by Ms Dickins when they were capable of being retrieved from her email account on 21 and 22 April 2025.[1]

• [8] I do not consider Ms Dickins simply refused to open the emails or deliberately ignored them. I accept Ms Dickins' evidence that she did not see the emails. The evidence is unclear regarding why Ms Dickins did not see the emails.

• [9] I find that Ms Dickins was dismissed at the initiative of Skybridge on 22 April 2025. That means the 21-day filing period ended on 13 May 2025 and that Ms Dickins' unfair dismissal application was filed one day late. Ms Dickins therefore needs an extension of time for the filing of her application.

• [10] Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) any action taken by Ms Dickins 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 Ms Dickins and other persons in a similar position.

• [11] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

• [12] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 13 May 2025. The delay is the period commencing immediately after that time until 14 May 2025, although circumstances arising prior to that period may be relevant to the reason for the delay.[3]

• [13] 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.[4]

• [14] Ms Dickins 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 Dickins has not provided any reason for any part of the delay.[5]

• [15] Ms Dickins explained that she was aware of the 21-day filing period but was calculating that period based on her understanding that her employment had ended on 24 April 2025. Ms Dickins understood she had until 15 May 2025 to file the application. Ms Dickins also explained that she had been weighing up whether to take on the stress of an unfair dismissal application after her dismissal and had been discussing her situation with family members. On the evening of 14 May 2025, Ms Dickins says she saw an advertisement from Skybridge for a reception and administration role at Inverell which appeared the same as her allegedly redundant job. Ms Dickins says this was the "final straw" and she decided to file the application that evening.

• [16] The delay in this case is a very short period of one day and Ms Dickins' explanations for the delay are persuasive. However, I also accept Skybridge's submission that Ms Dickins did not need to wait until the end of the filing period, even if 24 April 2025 was the correct dismissal date, and that Ms Dickins was on notice that Skybridge considered 22 April 2025 to be the correct dismissal date since at least 24 April 2025.

• [17] Given these competing matters, I find the reason for the delay is a neutral factor.

Did Ms Dickins first become aware of the dismissal after it had taken effect?

• [18] I accept Ms Dickins' evidence that she did not become aware that she had been dismissed until she received a text message from Mr Birch on 24 April 2025. Ms Dickins' conduct in attending work on 22 April 2025 and then taking the effort to attend a doctor's appointment after she went home sick on 22 April 2025 is consistent with Ms Dickins not being aware that she had been dismissed.

• [19] I find this factor weighs in favour of finding that there are exceptional circumstances.

What action was taken by Ms Dickins to dispute the dismissal?

• [20] There is no evidence that Ms Dickins took any substantive action to dispute her dismissal after she became aware of it on 24 April 2025. However, I accept Ms Dickins' submission that Mr Birch made it clear in text messages that he did not wish to discuss the matter any further. In the circumstances, I find this to be a neutral factor.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [21] The delay was a period of one day. I am not satisfied Skybridge will suffer any significant prejudice from the delay. I consider this is a neutral factor.

• [22] It is well established that "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)", or in this case, s.394(3)(e).[6]

• [23] As I raised with Mr Birch and Ms Verri during the hearing, it appears unlikely to me based on the current evidence that Skybridge complied with the consultation obligations in the Clerks Award 2020 in relation to Ms Dickins' redundancy. That means Skybridge's jurisdictional objection to the application on the ground that the dismissal was a "genuine redundancy" within the meaning of s.389 of the FW Act is unlikely to succeed. I stress that these issues cannot be finally determined until further evidence is received.

• [24] The evidence at this stage does not permit even a preliminary assessment of whether Ms Dickins' job was still required by Skybridge, or whether it would have been reasonable for Ms Dickins to be redeployed. Further evidence will also be required to assess whether Ms Dickins' illness or attendance at a funeral led to her being dismissed.

• [25] The process implemented by Skybridge in relation to Ms Dickins' dismissal appears to be deficient. This raises doubts about the fairness of the dismissal. That is particularly the case given Ms Dickins was permitted to commence performing work on 22 April 2025 and was then pressed to provide a medical certificate to cover her subsequent absence. According to Mr Birch, all these events occurred after Ms Dickins had already been notified of her dismissal on 21 April 2025.

• [26] I find the merits of the application weigh in favour of finding that there are exceptional circumstances.

• [27] Although I note that if the case does not rise higher than a lack of consultation by Skybridge, the remedy available to Ms Dickins may be limited.

Fairness as between Ms Dickins and other persons in a similar position

• [28] As a Full Bench has noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[7] In particular, the history of this provision indicates that it refers to "other employees of the employer agitating the same or similar substantive issues".[8]

• [29] I reject Skybridge's submission that granting an extension to Ms Dickins will "open the floodgates to other claims." The circumstances of this case, and particularly the uncertainty around the dismissal date, are reasonably unique. I find fairness to be a neutral factor.

• [30] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

• [31] 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.[9] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[10] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant to be granted an extension.[11]

• [32] Having regard to all the matters identified in s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances. I find Ms Dickins' genuine and legitimate confusion about the dismissal date to be unusual and uncommon. I consider this factor in conjunction with my finding that the merits of the application weigh in favour of finding there are exceptional circumstances to be sufficient for Ms Dickins to clear the "high hurdle" in this case.

• [46] Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.

• [47] Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[12] I am satisfied that it is appropriate to extend the period for the application to be made to 14 May 2025.

• [48] The application will proceed to be dealt with in accordance with the Commission's normal processes.

Ms B Verri from Avern McIntyre & Co for Skybridge.

[1] Section 14A of the Electronic Transactions Act 1999 (Cth); Ayub v NSW Trains (2016) 262 IR 60; [2016] FWCFB 5500 at [50].

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39] ('Stogiannidis').

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

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[7] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

[8] See Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090, [19].

[9] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[11] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288, [21].

[12] Fair Work Act 2009 (Cth) s 577.

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