Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed

• [1] Ms Helen Knight (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Fair Work Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Tully Nursing Home (Respondent).

• [2] The Respondent has objected to the application on the ground that the application is out of time. The Respondent has also applied for the matter to be dismissed in reliance on section 399A and/or 587 of the Fair Work Act. This decision deals with those two issues.

• [3] For the reasons that follow I have decided not to grant the extension of time, and I have found it unnecessary to consider the application to dismiss the substantive application in reliance on section 399A and/or 587 of the Fair Work Act.

• [4] Ms Knight says she was dismissed with effect from 22 October 2023. Ms Knight filed her unfair dismissal application on 23 October 2024. On her case this application was filed around a year after the dismissal took effect, or around forty-nine weeks after the end of the statutory time period.

• [5] The Respondent filed its response on 7 November 2024.

• [6] I issued directions on 26 November 2024, to deal with the issue of whether the application had been filed late and if so whether an extension should be granted. Those directions allowed for, inter alia, the parties to file and serve witness statements and submissions.

• [7] The Applicant did not comply with the direction of 26 November 2024 requiring her to file statements and submissions. Nonetheless the Respondent filed a written outline of submissions and a statement of Ms Gail Mears signed 10 December 2024, in compliance with the directions.

• [8] The question of whether to extend time for the application to be filed was listed for determination on 13 December 2024. I considered it appropriate to hold a determinative conference for the matter. The determinative conference was held by video. I heard from both parties at the determinative conference as to whether time should be extended. It was apparent to me that Ms Knight had not fully appreciated what needed to be done to prepare and present her case in that regard. Accordingly, I decided to provide a further opportunity for Ms Knight to file witness statements, documentary evidence, and submissions. The Respondent indicated it would apply for the application to be dismissed, in reliance on section 399A or section 587 of the Fair Work Act.

• [9] I issued further directions on 13 December 2024, allowing Ms Knight more time to file materials, and indicating that unless the Respondent filed the application it had foreshadowed, and/or indicated an intention to file further materials, by 4 February, the matter would be listed for further determinative conference on a date to be fixed.

• [10] The Applicant wrote to my chambers on 14 January 2025.

• [11] The Respondent filed an application for the matter to be dismissed, as it had foreshadowed, on 4 February 2025. The application was accompanied by a witness statement of Ms Gail Mears dated 4 February 2025. The Respondent subsequently filed an affidavit of Ms Mears affirmed 3 April 2025, adopting both earlier statements.

• [12] I issued further directions on 26 March 2025 to deal with the application for summary dismissal of the proceedings. After considering the matter further I formed the view that the extension of time matter had to be determined first. I listed the matter for mention to hear from the parties as to whether there were facts in dispute relevant to the extension of time question, such as to require a hearing.

• [13] At the mention the parties confirmed the facts relevant to the question of extension of time were not in dispute, and both were of the view that a further hearing or conference in that regard was not necessary.

• [14] I indicated that I would determine the question of whether to extend time, and then deal with the application for summary dismissal if necessary, including by providing a further opportunity for Ms Knight to file materials, in addition to the earlier opportunity provided.

• [15] I have considered all of the material filed by the parties, and the matters discussed at the determinative conference held on 13 December 2024 and the mention held on 12 June 2025.

• [16] Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

• [17] Section 394(2) of the FW Act provides that such an application must be made:

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

(b) within such further period as the Commission allows.

• [18] Under section 394(3) of the Fair Work 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:

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

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

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

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

• [19] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1] I set out my consideration of each matter below.

• [20] The following matters are not in dispute.

• [21] The Respondent operated a nursing facility. The Applicant was employed in the nursing facility.

• [22] The dismissal occurred after the Applicant was involved in an incident involving another employee of the Respondent, and a resident at the nursing facility.

• [23] The Applicant was a defendant in criminal proceedings arising from the same incident.

• [24] A "banning order" was subsequently made in relation to Ms Knight by the Aged Care Quality and Safety Commission ("the ACQSC"). The banning order is in force for a period of ten years.

• [25] In addition, Ms Knight says that at the outset of her criminal law proceedings in the Tully law court, a duty lawyer, who had come from Innisfail, gave her advice, and that that advice was the reason why she did not file her unfair dismissal application in time. This is discussed below. The Respondent indicated that it was not in a position to contest this assertion of fact given that it (by its officers or employees) was not present for the conversation.

• [26] Ms Knight also says she also did not contest the dismissal immediately because she was in a state of shock. The Respondent says this was outside its knowledge and so the assertion of fact is not contested on that basis.

• [27] The parties are not necessarily of the same mind in relation to what happened during the incident, or about whether the resident concerned had a history of violence. However, given it would not be appropriate to resolve contested issues of fact going to the ultimate merits in deciding an extension of time application, I do not consider that any contest between the parties as to the incident itself enlivens an obligation to conduct a further determinative conference or a hearing.

• [28] In addition to the above I accept that Ms Knight has very little knowledge of legal proceedings or proceedings in this Commission, does not have a computer at home, and has expressed difficulty with understanding this process. I have attempted to afford additional time and opportunities to Ms Knight to be heard, without straying into the territory of being unfair to the Respondent.

• [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.[2]

• [30] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[3]

• [31] Ms Knight was also involved in criminal law proceedings arising in relation to the same facts as underpin these proceedings. In her application of 23 October 2024, she gave the reason for delay as follows:

"I was advised by Court lawyer to have to wait until court case was over."

• [32] In her correspondence of 14 January 2025 she said:

"The reason for the delay was because I was informed, by the court lawyer, that I couldn't apply for unfair dismissal due to a court case that had to be finalised."

• [33] On 24 February 2025 my chambers wrote to Ms Knight asking if she could provide any further information about the court lawyer or this conversation. Ms Knight indicated that it had been a duty lawyer from Innisfail, and that the conversation had happened at the Tully law court.

• [34] On 25 February 2025 my chambers then provided Ms Knight with another opportunity to provide further information. She was told that if her former duty lawyer could back what she said, that she should provide confirmation of that, such as an email from them. Ms Knight did not provide anything further in that regard.

• [35] As indicated above, this conversation is not a matter within the Respondent's knowledge, and so Ms Knight's representations in this regard are uncontested. However, I consider it to be unlikely that a lawyer would have told Ms Knight not to file her application for unfair dismissal while her criminal proceedings were on foot. I am hesitant to accept that in the absence of any corroboration from the lawyer concerned or any more specific information about what each of Ms Knight and the lawyer actually said in the conversation.

• [36] However, I do accept that, at the least, Ms Knight came away with the impression that she could not file her unfair dismissal application until after the court had dealt with her criminal law case.

• [37] Ms Knight also says she was in shock at the time which is why she did not take action to dispute the dismissal. This does not provide a reason for most or the whole of the delay, and Ms Knight's argument in that regard relies on the conversation with the duty lawyer.

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

• [38] It was not in dispute that Ms Knight was stood down for a period of around a week and then dismissed. It was also not in dispute that Ms Knight was notified of her dismissal by a letter of 20 October 2023. Whether or not she saw the email, the letter would have arrived in the post around two days later, consistent with Ms Knight's representation that she was dismissed on 22 October 2023.

What action was taken by the Applicant to dispute the dismissal?

• [39] It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making this unfair dismissal application.

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

• [40] The Respondent submits that it would suffer prejudice if an extension of time were granted. I accept that given the time that elapsed between the incident and subsequent dismissal on the one hand, and Ms Knight making her application, the employer would suffer prejudice if the extension of time were to be granted.

• [41] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

• [42] Having examined these materials, it is evident to me that there are contested points of fact in relation to the incident itself and the resident concerned. Evidence in relation to these contested points of fact would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It would not be appropriate for the Commission to resolve those contested issues of fact going to the ultimate merits for the purposes of section 394(3)(e) of the Fair Work Act.

• [43] However, it is not in dispute that Ms Knight is subject to a ten year banning order by the ACQSC. This consideration weighs strongly against the merits of the application and against granting an extension of time.

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

• [44] The Applicant raised an issue about fairness as between herself and the other employee involved in the incident, who she points out was not dismissed. That is a matter that may be relevant to the merits of the case, but it does not assist me in relation to this consideration in the context of an extension of time application. Having considered the materials I do not consider that an issue of fairness as between the Applicant and other persons in a similar position arises.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [45] Having regard to all of the matters at s.394(3) of the Fair Work Act, I am not satisfied that there are exceptional circumstances. The length of the delay and commensurate prejudice to the employer, along with the effect of the banning order on the merits of the application, outweigh Ms Knight's explanation as to why she did not file her application sooner.

• [46] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. In light of that finding it is not necessary to consider the Respondent's application for the application to be summarily dismissed on the grounds referred to above.

• [47] Accordingly, I order that the Applicant's application for an unfair dismissal remedy is dismissed.

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

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

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

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