Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal

[1] On 27 January 2026, Ms Jessica Wadeson made an application alleging she was dismissed from her employment with Highmark Homes Pty Ltd (Highmark) in contravention of Part 3-1 of the Act. In her application she claims her effective dismissal date was 27 January 2026.

[2] Highmark in its Form F8A response claims that "on 2 May 2025 Highmark sent Ms. Wadeson a termination letter stating her position was made redundant on 17 April 2025 and her notice period expired on 1 May 2025" and that therefore Ms. Wadeson's application is made out time.

[3] It is contested whether it is necessary for me to exercise my power under s 366(1)(b) to extend time for Ms. Wadeson to make her application. Before considering the exercise of the power to extend time I must determine the date of her dismissal.

[4] On 31 March 2026, I heard submissions on both the date of Ms. Wadeson's dismissal and Ms. Wadeson's extension of time application by determinative conference using Microsoft Teams. Ms. Wadeson appeared and represented herself. Ms. Sarah Gee appeared on my leave for Highmark, together with Mr. Anthony Savona, a Director of Highmark.

[5] In September 2024, Ms. Wadeson commenced maternity leave. She had her son in November 2024.

[6] Between 14 January and 4 April 2025, Ms. Wadeson and Mr. Savona had a series of telephone conversations about her return to work. Ms. Wadeson says that on 4 April she was advised that "my job was still there but there was a decline in work which made it hard to find an appropriate role for her to return to".

[7] At 11:25 AM on 4 March 2025, Ms. Wadeson sent Mr. Savona an e-mail which relevantly said:

I'm just wanting to know what the current situation is regarding my position.

Can you please let me know if there is availability to come back 3 days a week or if my position has been made redundant and what the next steps would look like?

I'm currently in limbo as I need to work but also would like the stability of knowing my current position at Highmark Homes, due to conflict of interests. I can only then make the best informed decision if needed.

[8] In response to this e-mail at 11:32 AM, Mr. Savona responded:

It's a real tough position I am in here. Firstly, the industry has dropped as you know, and our inflow of work had been reduced by 50% which makes it hard to offer 3 days at the moment as discussed when you came to see me a few weeks ago. Also, I was not expecting your return until October which is 12 months since you took leave hence why I suggested we reassess then. I do understand your predicament and wish I had a solution for you now but unfortunately not. I also understand that if you were to find employment elsewhere that may become a long term position for you.

[9] Later that day at 4:30 PM, Ms. Wadeson sent a further email to Mr. Savona:

I understand the predicament you're in, and I wish it were different. I need certain stability; I need to put Jacks future at the forefront of my future. Since starting as your receptionist and throughout the years and multiple roles, working outside hours unpaid by choice I know, but I was dedicated, probably too young and eager. I have been loyal to you and the company. Even on the short break I took I always put Highmark first, attempted to boost the upgrades in the colours, which I think I done well at doing.

The below response is disappointing, as I feel this is your way to force me out, without actually doing so. If you need to let me go, I can accept that, but I also cannot quit on my own terms. I am like everyone else with a mortgage and now baby adjusting to that life. The unknown and uncertainty is extremely overwhelming.

I just need a straightforward answer as too this situation, so I can prepare myself and do what I need to for my family.

[10] On 28 April 2025, Ms. Wadeson sent a further e-mail to Mr. Savona which included the following (with emphasis added):

I'm sorry to keep annoying you, but is it possible to just make my position redundant. I need to send centerlink a cease work/ redundancy letter so I can claim better rates on my childcare subsidy as I'm only on casual until my previous reopened. But now with Alex not working I'm running out of options. I'm so stuck on what to do. I have heard some of the girls are looking for new jobs so if/ when the time comes that the position opens we could potentially reassess then.

[11] Ms. Wadeson e-mailed Mr. Savona again and "requesting [her] position back a similar role with the same pay scale or make my position formally redundant".

[12] According to Ms. Wadeson, she had further exchanges with Mr. Savona which included an exchange where Mr. Savona:

"Replied stating he would write me a redundancy letter purely for the sole purpose to send to centrelink so I could achieve cheaper centerlink child care fees, and find employment as I did'nt want to fall behind in my mortgage payments."

[13] The termination letter which has been filed in this matter is dated 17 April 2025. In the conference I asked Ms. Wadeson when she received the letter. Ms. Wadeson explained: "I think on the 5th of May when I asked for it and he back dated it for me to help me out. Like he back dated to help me out cause I thought he was keeping my job open." Ms. Gee confirmed the letter was sent on that day. The text of that letter stated:

Termination of your employment by reason of redundancy

The purpose of this letter is to confirm the outcome of a recent review by Highmark Homes (the employer) of its operational requirements, and what this means for you.

As a result of the economic downturn and the decline in sales, the position of Sales Leader is no longer needed. Regrettably this means your employment will terminate.

This decision is not a reflection on your performance.

The employer has made the following attempts to find you an alternative position within the enterprise and any associated entities.

Based on your length of service, your notice period is 2 weeks. Therefore, your employment will end on 01/05/2025.

[14] In her timeline of events filed in this matter, Ms. Wadeson made the following submissions of fact in relation to the events of 2026:

• 15 January 2026: She returned to the Highmark office to "see the girls".
• 17 January 2026: She rang Mr. Savona and asked for her job back and "was met with the same answer. Workflow has decreased but he will call me when work has picked up again."

• 27 January 2026: She rang Mr. Savona and she again asked him for her job back. Mr. Savona answered, "I have removed two staff members from Highmark Homes I'm currently working out the internal side of the office". On that same day Mr. Savona sent Ms. Wadeson an e-mail which attached the termination letter she had been sent earlier.

[15] Ms. Wadeson considers her employment did not terminate until she had been given the termination letter a second time on 27 January 2026. She argues the later date is the effective termination date because when she first received the termination letter on 5 May 2025, she was assured by Mr. Savona that it was "purely for the sole purpose to send to Centrelink so [she] could achieve cheaper Centrelink child care fees"

[16] When I asked Mr. Savona in the Conference whether he gave such an assurance he said he had not. Ms. Wadeson's evidence is therefore directly contested. Ms. Wadeson has the practical onus of proving her application was filed in time. On the basis of the oral evidence, I cannot find the effective date of her termination was on 27 January 2026.

[17] The written documents before me point strongly in the direction of 5 May 2025 as the effective dismissal date. In the 28 April 2025 e-mail, Ms. Wadeson unequivocally asks to be made redundant. Shortly after this on 5 May 2025, she was sent a letter headed "Termination of your employment by reason of redundancy" which said that her position as "sales leader was no longer needed. Regrettably this means your employment will terminate".

[18] It follows on the material before me the effective termination date was 5 May 2025. Ms. Wadeson's application was made 246 days late.

When must an application for the Commission to deal with a dispute be made?

[19] Before dealing with the dispute, I must be satisfied that the application was made on time.

[20] Section 366(1) of the Act provides:

(1) An application under section 365 must be made:

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

(b) within such further period as the FWC allows under subsection (2).

Was the Application made within 21 days after the dismissal took effect?

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

[22] Ms. Wadeson's application was filed on 27 January 2026. It was 246 days late. I therefore need to consider whether to make an order to extend the period to make the application.

• [23] I may allow a further period for a general protections application if I am satisfied there are exceptional circumstances, taking into account:[2]

(b) any action taken by Ms. Wadeson to dispute the dismissal.

(c) prejudice to the Respondents (including prejudice caused by the delay).

(e) fairness as between Ms. Wadeson and other persons in a similar position.

• [24] Each of these matters must be considered in assessing whether there are exceptional circumstances.[3] It is well settled that in s 366 "exceptional circumstances" means "out of the ordinary course, unusual, special or uncommon". The circumstances are not required to be unique, unprecedented, or rare.

• [25] A reason for the delay is not of 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]

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

[27] Ms. Wadeson gives two reasons for the delay in filing her application:

The assurance by Mr. Savona the redundancy letter was sent for Centrelink purposes and her job was still available.

[28] As I have explained above, Ms. Wadeson claims Mr. Savona had assured her that the redundancy letter was not genuine and was given to her for "Centrelink purposes only." Ms. Wadeson also claims that Mr. Savona had also assured her that her job was still available.

[29] There is a direct conflict between her evidence and the evidence of Mr. Savona who denies ever giving such an assurance. The written documents I have before me support a contrary proposition: that Ms. Wadeson asked to be made redundant and Mr. Savona did so by the termination letter on 5 May 2025.

[30] This cannot therefore be an adequate reason for the delay.

Ms. Wadeson's severe post-natal depression, PTSD and mental decline

[31] The second reason Ms. Wadeson gives for her delay is that after the birth of her son she was diagnosed with severe post-natal depression. In her application she also states that she was diagnosed with "PTSD" and her "mental health has severely declined over the last twelve months". Ms. Wadeson gave no evidence or written submissions explaining when she was diagnosed with these conditions. Nor did she provide evidence of the effect these conditions had on her capacity to file her application in time.

• [32] Deputy President Easton has helpfully summarised the approach of the Commission where mental health is claimed as reason for delay in Bianco Mamo v. ICLED Australia Pty Ltd:[6]

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

(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

(iii) the evidence should positively demonstrate that the applicant's depressive illness had

an impact on their mental capacity so as to prevent the lodging of the application

(iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to

[33] The effect of the application of propositions (i) and (iv) in Mamo is that medical evidence of a treating medical practitioner is usually required both of the diagnosis of the mental health condition and of the material impact that condition had on the applicant's capacity to lodge the application in time.

[34] I do not in any way seek to suggest Ms. Wadeson did not suffer (or continues to suffer) from severe post-natal depression or post-traumatic stress disorder. However, without medical evidence of the diagnoses or their effects, or any detail as to how long those effects prevented her from lodging the application, it cannot provide an adequate reason for the delay.

[35] Neither reason provides an adequate reason for the delay. It follows this factor goes against a finding of exceptional circumstances .

WHAT ACTION DID MS. WADESON TAKE TO DISPUTE THE DISMISSAL?

[36] It is clear between 5 May 2025, when she received the termination letter, and the filing of her application on 27 January 2026 she did, on a number of occasions in January 2026, ask for her job back. It is unclear to me whether this amounts to disputing whether she had been dismissed. I have no evidence, for example, that she ever expressed to Mr. Savona that her redundancy was not genuine or that the decision to terminate her was unfair. Also, there is a gap in the correspondence between Ms. Wadeson to Mr. Savona between 3 May 2025 and 15 January 2026. Assuming I accept that asking for her job back is disputing her dismissal, she did not contest it for seven months.

[37] Given that she had asked for her job back on a number of occasions, I am reluctant to find she did not contest her dismissal between her termination on 5 May 2025 and the filing of her application on 27 January 2026. I therefore find this factor to be neutral to the finding of exceptional circumstances.

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

[38] Highmark claims the lengthy delay results in a forensic prejudice against it because of the fading memory of witnesses relevant to the facts in issue.

• [39] In a recent Full Bench appeal from a decision of Commissioner Ryan in Shiralee Dollar v. RC Holding,[7] the Full Bench did not disturb the observation of Commissioner Ryan that "a lengthy delay gives rise to a presumption of prejudice." The Full Bench observed:

That observation was reasonable in the context of a case where the delay in the Appellant filing her unfair dismissal application is 101 days. The observation us also consistent with the Full Bench in [GHD Pty Ltd v. Kevin Allan Black] where the relevant delay was 168 days.[8]

[40] The delay in this case is greater than the 101 days in Shiralee Dollar and the 168 days in GHD Pty Ltd. Consistent with the presumption of prejudice accepted in Shiralee Dollar Ltd for a lengthy delay, I find that the delay here is presumed to, and does lead to prejudice to Highmark.

[41] I therefore find that a delay of 246 days is likely to cause a forensic disadvantage to Highmark due to fading memory. In those circumstances this factor is against a finding of exceptional circumstances.

[42] In her application, Ms. Wadeson claims she was dismissed because of her pregnancy under s 351 of the Act. As she had ceased being pregnant and had given birth to her son at the time of her dismissal, the protected reason of pregnancy is not available to her. However, from the material before me it is clear she maintains that she was dismissed because she took maternity leave. This is an exercise of workplace rights under s 340, 341 and 343.

[43] In January 2025, Ms. Wadeson approached Mr. Savona to organise a return to work from maternity leave. In the course of telephone discussions and e-mails over the next four months, Mr. Savona indicated that because of a downturn in business she would be made redundant. This was confirmed in the termination letter which stated her termination was "as a result of the economic downturn and the decline in sales". There is temporal proximity in her request to return to work from maternity leave and the decision to terminate her.

[44] Highmark, in support of its argument that redundancy was the only reason for the termination, filed a letter dated 12 May 2025 from Mr. Brad Savage, a Partner of KPMG in Business Advisory. The letter seems to be a summary of a meeting Mr. Savage had with Mr. Savona which took place "last week" (which is the week commencing Monday 5 May 2025, the day Ms. Wadeson was sent the termination letter). This letter includes the following advice:

Following your overview, including the potential change in operational structure, I suggested that it would be beneficial to review the fixed overhead component of the business, including:

• Staff mix. Is the current team fit for purpose? If the operational structure is to change, are any roles made redundant? Eg, if changing to a commission-based model (or part thereof), does the business require the current salesperson team?
• Is the current office space required?
• Is the current display home program obsolete?

Contingent on cashflow (annual leave, severance pay etc), the potential redundancy of employees, employed in a redundant role, would provide an immediate positive economic impact to the business.

[45] Assuming the meeting between Mr. Savage and Mr. Savona took place on 5 May 2025 (it could have been later in the week after Ms. Wadeson was terminated) then it appears:

• The decision to dismiss Ms. Wadeson was made and conveyed to Ms. Wadeson on the same day Mr. Savona received the oral advice from Mr. Savage. This infers the deliberation on who would be selected for redundancy, what alternative work was available, and the drafting of the termination letter occurred within a few hours which suggests a lack of rigour; or,
• the more likely scenario, the decision to terminate Ms. Wadeson was made before the oral advice was received.

[46] In the conference, Ms. Gee for Highmark informed me three employees were made redundant. The Form F8A explains the decision to make those individuals redundant was based on the advice from Mr. Savage which took place (at best) on the same day as the decision to dismiss Ms. Wadeson was conveyed to her. The reliance on advice that was probably yet to be given, or at best given on the same day Ms. Wadeson was dismissed, requires interrogation. Further, there is no evidence before me on the process of selection for redundancy.

[47] Highmark argues the decision to terminate the employment of Ms. Wadeson was made solely because of the downturn in business and in order to reduce staff costs. Ms. Wadeson argues her return from maternity leave was an active reason in the decision to dismiss her. There is conflicting evidence on the exchanges between Ms. Wadeson and Mr. Savona leading up to and following the termination letter. It is not possible to weigh this conflicting evidence without a full hearing which would include testing evidence from the relevant witnesses on oath.

[48] I consider Ms. Wadeson's general protections claim is arguable. I cannot make an assessment of the merits on the very limited and conflicting evidence before me. Where an applicant has an arguable case based on contested evidence it is not appropriate for merits to count in favour or against a finding of exceptional circumstances. This factor is therefore neutral to a finding of exceptional circumstances.

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

[49] Ms. Wadeson makes no submissions on this factor.

"The Applicant is seeking an extension of time in circumstances where there are no demonstrable exceptional circumstances. As such, considerations of fairness to persons in a like position, including the two other staff who were contemporaneously made redundant, would weigh against the exercise of the Commission's power to extend time."

• [51] 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:[9]

"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."

[52] 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 Highmark are not directed to persons in a similar position in decided cases, but to other Highmark employees made redundant at the same time as Ms. Wadeson. I do not find these submissions compelling.

[53] I therefore regard this factor as neutral to a consideration of exceptional circumstances.

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

Factors against a finding of exceptional circumstances

[54] Ms. Wadeson does not provide sufficient reasons for the lengthy delay under s 366(2)(a). This factor counts against a finding of exceptional circumstances.

[55] Highmark is presumed to experience, and I find it does experience, prejudice by reason of the lengthy delay. This factor also counts against a finding of exceptional circumstances.

Factors neutral to a finding of exceptional circumstances.

[56] The other three factors namely, action taken to dispute the dismissal under s 366(2)(b), merits under s 366(2)(d) and fairness between persons under s 366(2)(d) are all neutral.

[57] Two factors count against a finding of exceptional circumstances; she has no sufficient reasons of delay and the length of the delay prejudices Highmark. The three other factors in s 366(2) are neutral. Therefore, on balance, taking into account all the factors in s 366(2), and also the lengthy delay, I am not satisfied there are exceptional circumstances to justify an extension of time being granted.

[58] I find the date Ms. Wadeson was terminated by Highmark was 5 May 2025. Her general protections application is therefore 246 days late. The application for an extension of time to file her general protection's application is refused and her s 365 application is 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] Section 366(2)(b).

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

[6] [2021] FWC 3903, [25]. I have removed the case references from the excerpt.

[7] [2025] FWCFB 122.

[9] [2015] FWC 8885, [29].

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