s.394 - Unfair dismissal

[1] On 26 December 2025, Ms. Jennifer Cabral's employment with Scalzo Trading Co. Proprietary Limited (Scalzo) ceased.

[2] On 4 March 2026, Ms. Cabral made an application claiming she was unfairly dismissed from her employment. Unfair dismissal applications are required to be made within 21 days of the dismissal taking effect. Her application was 47 days late.

[3] The Commission has power to extend the time for making the application if it is satisfied that there are exceptional circumstances under s 394(2)(b).

[4] On 14 April 2026, I heard Ms. Cabral's extension of time application by way of a determinative conference by Microsoft Teams. Ms. Cabral attended and represented herself. Scalzo was represented by Mr. Rickardo Costa, an in-house legal/HR manager of Scalzo, and Ms. Donna Shearsby, Head of People, Safety & Quality also attended.

[5] For the following reasons, I refuse Ms. Cabral's application to extend time to file her application. Her unfair dismissal application is dismissed.

WAS THE APPLICATION MADE WITHIN 21 DAYS AFTER THE DISMISSAL TOOK EFFECT?

• [6] The 21-day period does not include the day on which the dismissal took effect.[1]

[7] Ms. Cabral's application was filed on 4 March 2026. Her dismissal occurred on 26 December 2025. It was filed 47 days late. I therefore need to consider whether to make an order to extend the period to make the application.

[8] I may allow a further period for an unfair dismissal application if I am satisfied there are exceptional circumstances, taking into account:

(b) when Ms. Cabral first became aware of the dismissal after it had taken effect.

(c) any action taken by Ms. Cabral to dispute the dismissal.

(d) any prejudice to Scalzo (including prejudice caused by the delay).

(f) fairness as between Ms. Cabral and other persons in a similar position.

• [9] Each of these matters must be considered in assessing whether there are exceptional circumstances.[2] Exceptional circumstances have their ordinary English meaning. They must be out of the ordinary course, unusual, special, or uncommon. They need not be unique, unprecedented, or rare.

[10] Ms. Cabral gave two reasons for her delay.

Her incapacity due to a work-related psychological injury.

[11] In her written submissions, Ms. Cabral wrote the following in relation to this reason:

The delay in lodging my application was caused by the psychological injury I sustained as a result of my employment. Following my dismissal, I experienced significant anxiety, depression, and emotional distress, impairing my ability to take timely action. A Certificate of Capacity dated 25 February 2026 confirms impaired concentration, memory, judgement, and significant anxiety and depression. My treatment was also disrupted due to my psychologist being unavailable during a critical period following my dismissal.

[12] In her oral evidence, Ms. Cabral explained her treating psychologist was unavailable from "end of October until March".

Lack of awareness of the availability of an unfair dismissal remedy

[13] In her oral submissions Ms. Cabral gave an additional reason. She was unaware that a remedy for unfair dismissal was available to her. She gave evidence that she discovered she could bring a claim for unfair dismissal "at the end of February".

[14] Scalzo did not dispute Ms. Cabral was receiving treatment for her mental health condition. It takes issue with her argument she was so incapacitated by her mental health condition that she could not complete or lodge an unfair dismissal application. It noted during the period of the delay she had "read and responded to e-mails, communicated with WorkSafe insurers, rearranged psychological appointments and managed administrative and medical matters."

[15] In the conference, Ms. Cabral responded to Scalzo's capacity argument. She explained her ability to perform those tasks was facilitated by the assistance of her daughter and husband. When I asked Ms. Cabral if they assisted her with her unfair dismissal application, she responded that her daughter assisted her after she became aware that she could make an unfair dismissal claim.

The approach of the Commission on mental health as a reason for delay

[16] Deputy President Easton has helpfully summarised the approach of the Commission where mental health is claimed as a reason for delay in Bianca Mamo v. ICLED Australia Pty Ltd:

"It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However, the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit.

(i) stress, shock, confusion, and similar conditions are not exceptional circumstances in and of themselves

(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant's capacity to lodge the application within the statutory time limit

(iii) the evidence should positively demonstrate that the applicant's depressive illness had an impact on their mental capacity to prevent the lodging of the application within the 21 day time frame ...and

(iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient..."[3]

[17] Ms. Cabral referred to a certificate of capacity issued on 25 February 2026. She does not identify the medical professional that issued the certificate. It was issued 61 days after her dismissal and 40 days from the expiration of the time limit. She explains the certificate states she suffered "impaired concentration, memory, judgement, and significant anxiety and depression." A copy of this certificate was not filed by Ms. Cabral.

[18] Ms. Cabral did not explain the context in which the unidentified medical practitioner made this description of her symptoms. The excerpt does not explain how these symptoms incapacitated her from making an application or for what period. Given the certificate was dated 60 days after her dismissal, did this diagnosis relate to the considerable period before the certificate was issued?

[19] I agree with Deputy President Easton in Mamo that "without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit." In the absence of the actual certificate or direct evidence from one of her treating medical practitioners, it is difficult to make an informed finding about Ms. Cabral's capacity.

[20] I am satisfied Ms. Cabral suffers from a mental health condition, however, a one-line quote from the 25 February certificate by an unidentified medical practitioner is an insufficient basis on which to be satisfied that her condition incapacitated her from making an application for 47 days. I cannot therefore be satisfied that her mental health condition was a sufficient reason for the delay.

Lack of knowledge of the unfair dismissal jurisdiction

[21] Ignorance of the unfair dismissal jurisdiction cannot be a good reason for delay. Ignorance of the Commission and its jurisdiction is commonplace and not special.

[22] On the material before me I cannot be satisfied Ms. Cabral's mental health condition incapacitated her from lodging her unfair dismissal application for a period of 47 days. It therefore cannot provide a sufficient reason for delay. Neither can Ms. Cabral's ignorance of her right to seek a remedy for unfair dismissal. This factor counts against a finding of exceptional circumstances.

WHEN DID MS. CABRAL FIRST BECOME AWARE OF THE DISMISSAL AFTER IT HAD TAKEN EFFECT?

[23] There is no dispute that on 28 November 2025, Ms. Cabral was given notice that her dismissal would be effective on 26 December 2025. Ms. Cabral had the full benefit of the 21 days to file her application. This factor is neutral to a finding of exceptional circumstances.

WHAT ACTION WAS TAKEN BY MS. CABRAL TO DISPUTE THE DISMISSAL?

[24] Ms. Cabral concedes she took no action to dispute her dismissal between the date she was terminated up until the day her application was filed. Ms. Cabral explains she took no action because "she remained on medical treatment" and was "managing the psychological effects of her injury" She states she lodged her application on 4 March 2026 without delay "once her condition stabilised."

[25] I have found there is insufficient evidence of the extent to which Ms. Cabral's mental health condition incapacitated her from filing her application during the 47-day delay. Similarly in relation to this factor, I have insufficient evidence to be satisfied that her condition incapacitated her from disputing her dismissal. On the material before me, this factor must count against a finding of exceptional circumstances.

WHAT IS THE PREJUDICE TO SCALZO (INCLUDING PREJUDICE CAUSED BY THE DELAY)?

[26] Scalzo concedes no prejudice arises because of the delay. This factor is therefore neutral to a finding of exceptional circumstances.

[27] The termination letter issued by Scalzo to Ms. Cabral relevantly states:

... we have received medical advice from your General Practitioner, Dr Ahmed Azam, regarding your ability to return to your pre-injury duties as a supervisor. Dr. Azam has advised that, while you will likely eventually be able to perform your pre-injury duties, this is not possible at this time. Furthermore, he has indicated that when you are able to return to work, it is unlikely that you will want to return to your previous position at the Scalzo Campbellfield site.

... we explored whether there were any suitable alternative duties or reasonable adjustments that could be made to support your return to work. During the meeting on the 24th, although you indicated a desire and willingness to return to employment, you indicated that you would be unable to work at a site alternative to Campbellfield once medically cleared due to their distance from your home. Unfortunately, after consideration and review of available roles within the business, we have determined that there are no suitable alternative positions available at this time.

...due to your inability to perform the inherent requirements of your role, and in the absence of any suitable alternative duties or reasonable adjustments, we have made the difficult decision to terminate your employment on the grounds of incapacity, effective 4 weeks from the date of this letter.

[28] Ms. Cabral argues Scalzo's claim she could no longer perform the inherent requirements of her role was wrong. Her medical advice was she would eventually return to work. She argues her dismissal was unfair because "the employer did not allow a reasonable recovery period or provide suitable redeployment options." During the conference, she added the actual reason for her dismissal was the bullying complaint she had made.

[29] Scalzo argues the decision to dismiss Ms. Cabral was solely based on its assessment that she was incapable of performing the inherent duties of her role. It describes the steps it undertook before it dismissed Ms. Cabral. In summary it submitted that:

• Ms. Cabral was absent on workers' compensation and income protection for a period longer than 52 weeks. Scalzo held her position open throughout that period.
• While it held her position open, it advised Ms. Cabral of the process it would undertake, it received independent medical advice on her condition, management met with Ms. Cabral about that advice, and then made "one final attempt to get Ms. Cabral to return to work".
• The medical advice from Ms. Scalzo's doctor was equivocal and confirmed "any return to work would not be in the near future."
• Alternative work was offered at Campbellfield, Head Office and Ravenhall and all those offers were "rejected" by Ms. Cabral.

[30] On the issue of the bullying allegations, Scalzo argued both their internal investigation and the subsequent investigation by WorkSafe found those allegations to be unsubstantiated. Ms. Cabral refutes the integrity of these investigations. She considers those investigations were flawed because they did not interview witnesses that would have corroborated her allegations.

[31] A merits assessment of Ms. Cabral's unfair dismissal claim depends on a consideration of widely divergent and hotly contested facts. A determination of the merits would require evidence to be tested by cross examination on oath in a full hearing. I cannot make a considered determination on the merits on the factual submissions before me. This factor is therefore neutral to a finding of exceptional circumstances.

FAIRNESS AS BETWEEN MS. CABRAL AND OTHER PERSONS IN A SIMILAR POSITION

[32] Scalzo makes no submissions on this factor. Ms. Cabral argues the following:

It would be unfair not to grant an extension where the delay was caused by a workplace-related psychological injury. Allowing the application ensures fairness to others in similar circumstances.

• [33] The factor "fairness as between the person and other persons in a similar position" was considered by Deputy President Gostencnik in Morphett v. Pearcedale Egg Farm:[4]

"Cases of this kind will generally turn of 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 related to matters currently before the Commission or matters which have been previously decided by the Commission."

[34] Pearcedale suggests this factor is concerned with consistent application of principles in extension of time decisions. The class of persons "in a similar position" refers to previous litigants in decided cases with similar facts. The submissions of Ms. Cabral are not directed to persons in a similar position in decided cases. The persons in a similar position she refers to are a prospective class of persons in a similar position. They are in a similar position to her because their delay is (or will be) a consequence of a "a workplace psychological injury." The interpretation of Deputy President Gostencnik addresses itself to persons in previously decided cases and not prospectively to persons in a similar position in the future.

[35] Neither party made compelling submissions on this factor. It is therefore neutral to a finding of exceptional circumstances.

IS THE COMMISSION SATISFIED THAT THERE ARE EXCEPTIONAL CIRCUMSTANCES, TAKING INTO ACCOUNT THE MATTERS ABOVE?

Two factors against an extension of time being granted.

[36] No sufficient reasons for the delay: Neither Ms. Cabral's mental health condition (given the lack of medical evidence) nor her lack of familiarity with the unfair dismissal jurisdiction provide a good reason for the delay. This factor counts against a finding of exceptional circumstances under s 394(3)(a).

[37] Ms. Cabral to no action taken to dispute the dismissal with her employer: Ms. Cabral took no action to dispute the dismissal between the termination of her employment and the filing of her application. The lack of medical evidence on her claimed incapacity to dispute the dismissal prevents her medical condition from providing an explanation as to why she failed to dispute it. This factor counts against a finding of exceptional circumstances under s 393(3)(c).

[38] Four factors are neutral to an assessment of exceptional circumstances:

• Whether the person first became aware of the dismissal after it had taken effect: Ms. Cabral became aware of her dismissal well before her termination date. This factor is neutral to a finding of exceptional circumstances under s 394(3)(b).

• Prejudice against the employer: Scalzo claims no prejudice arising from the delay or otherwise. This factor is neutral to a finding of exceptional circumstances under s 394(3)(d).

• Merits: A conclusion on the merits would require an examination of widely divergent and hotly contested facts. This is not possible without a full hearing of the evidence. This factor is therefore neutral to a finding of exceptional circumstances under s 394(3)(e).

• Fairness between Ms. Cabral and other persons: No compelling submissions were made in relation to this factor. It is neutral to a finding of exceptional circumstances under s 394(3)(f).

[39] I conclude the reasons for the delay under s 394(3)(a) and the failure of Ms. Cabral to dispute her dismissal under 394(3)(c) both count against an extension of time granted. All the other factors in s 394(3)(b), (d), (e) and (f) are neutral.

[40] Two factors count against an extension of time being granted. The rest are neutral considerations. Therefore, on balance, considering all the factors under s 394, I am not satisfied there are exceptional circumstances to justify an extension of time. Ms. Cabral's unfair dismissal application is therefore dismissed.

[1] Singh v BSG Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

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

[3] [2021] FWC 3903 [24]-[25].

[4] [2015] FWC 8885, [29].

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