s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed 18 days out of time - reasons for delay unexceptional - applicant employed by a bank - applicant had a credit card with his employer (the bank) - applicant disputed transactions on his personal credit card with the bank in his capacity as a consumer - bank considered applicant's conduct in disputing transactions fraudulent - applicant dismissed for serious misconduct - bank signatory to Australian Banking Association's Banking Industry Conduct Background Check Protocol - bank required to notify future employers in the banking industry of the applicant's serious misconduct - applicant disputes acting fraudulently - applicant's future career prospects in banking industry curtailed - merits strongly favour existence of exceptional circumstances - Commission satisfied exceptional circumstances exist - extension of time to file late application granted

• [1] On 28 April 2025, Mr Jie Liu (Applicant) filed an application for unfair dismissal remedy (Application) alleging that he was unfairly dismissed (within the meaning of s.385 of the Fair Work Act 2009 (Act)) by his employer, Commonwealth Bank Australia (Respondent).

• [2] The Respondent denies that it unfairly dismissed the Applicant. It says that the Applicant was dismissed, after a procedurally fair investigation process, for serious misconduct, as a result of him lodging knowingly false debit or credit card transaction disputes in his capacity as a 'customer' of the Respondent. Such conduct by the Applicant is said by the Respondent to be in breach of the Respondent's Code of Conduct and workplace policies, and contrary to the requirement for banking employees to maintain high standards of honesty and integrity in their employment.

• [3] It is not in dispute that the Applicant was dismissed without notice and with immediate effect on 20 March 2025. The Applicant should have filed his Application on or before 10 April 2025 in accordance with the statutory 21-day time-limit under s.394(2)(a) of the Act. The Applicant filed his Application on 28 April 2025, making his Application 18 days out of time.

• [4] The matter was allocated to my Chambers on 27 May 2025. Directions were issued on 29 May 2025 (amended on 6 June 2025) to program the matter to hear the Applicant's request for an extension of time. At the hearing on 19 June 2025, the Applicant appeared for himself, and Ms Stephanie Harrington, in-house Legal Counsel, appeared for the Respondent.

• [5] Granting an extension of time requires me to be "satisfied" that there are "exceptional circumstances". The Full Bench of this Commission in Nulty v Blue Star Group Pty Ltd (Nulty), in relation to the term "exceptional circumstances", stated:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory [21 day] time limit in s.366(1)(a) [or s.394(2)(a)] is not an exceptional circumstance..."[1]

[15] A finding that there are "exceptional circumstances", taking into account the matters specified in paragraphs 366(2)(a) to (e) [s.394(a) to (f)], is necessary before the discretion to extend time is enlivened. That is, even when "exceptional circumstances" are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) [s.394(a) to (f)] and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended."

• [6] The matters that I need to take into account in reaching a state of satisfaction as to the existence of exceptional circumstances are set out under s.394(3) of the Act, which reads:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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

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

• [7] Each of the individual matters under s.394(3) of the Act need to be considered separately, as well as in combination (or in totality). The Applicant bears the onus of establishing the existence of exceptional circumstances.[2] In Mohammed Ayub v NSW Trains[3], a Full Bench of this Commission described "exceptional circumstances" (in the context of an out of time application) as being a "very high bar" and "strictly limited".

• [8] It is well settled that a statutory requirement to 'have regard to' or 'take into account' (as required under s.394(3) of the Act) requires the Commission to give a matter(s) weight as a fundamental element in the decision-making process. However, as Kitto J noted in Rathborne

"Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v. Ward [1961] YR 632, at 634."[5]

• [9] On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group[7] (Bianco Mamo), as follows:

"[11] The test invariably applied in such matters is whether an applicant has a 'credible or reasonable' explanation for the delay. The reasonableness of an applicant's explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.

[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).

[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances."

• [10] Reasons for delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[8] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[9] The focus is upon the period of delay following the expiry of the 21 day time period, albeit circumstances arising prior to the delay may be relevant.[10]

• [11] In Bianca Mamo, Deputy President Easton also outlined how issues associated with illness (including mental illness) and/or associated incapacity are to be considered when they are put forward as reasons for delay in the filing of an application, as follows:

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

(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 (per Roberts and Underwood);

(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 within the 21 day time frame (per Underwood and Merhi); and

(iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood)."[11]

• [12] The Applicant contends (as his reason for delay) that he suffered from a depressed mood, anxiety, and insomnia in the period following his dismissal, which significantly impacted upon his mental capacity to file his Application.[12] In support of this contention, the Applicant filed a letter from his clinical psychologist, and a Mental Health Care Plan form from his General Practitioner.

• [13] The Respondent submits that the evidence filed by the Applicant does not support his contention that he was unable to attend to the preparation and filing of his Application within 21 days of his dismissal, and does not otherwise credibly explain the 18 day delay in the filing of his Application. Further, the Respondent contends that the symptoms the Applicant experienced post his dismissal are not 'out of ordinary, unusual, or special', in that many employees experience similar reactions to their dismissal.[13]

• [14] I concur with the Respondent submissions, and find that the Applicant's reasons for delay, supported as they are by uncontested medical evidence, do not properly explain his delay in filing his Application 18 days late. I find that the Applicant's reasons for delay in this case do not weigh in favour of a finding as to the existence of exceptional circumstances.

When the Applicant first became aware of his dismissal (after it took effect), and any action taken by the Applicant to dispute his dismissal[14]

• [15] The Applicant first became aware of his dismissal on the day it took effect. There is no evidence before me that the Applicant took action to dispute his dismissal prior to filing his Application. I treat the criterion under ss.394(3)(b) and (c) of the Act as neutral considerations, that weigh neither for, nor against, any finding as to the existence of exceptional circumstances.

• [16] There is no evidence before me to suggest that the Respondent has or will suffer any material prejudice as a result of the delay by the Applicant in filing his Application. The absence of prejudice to a respondent in an out of time case is not uncommon, but neither is such absence of prejudice a factor weighing in favour of a finding as to the existence of exceptional circumstances, or a discretionary grant of an extension of time (after a finding as to the existence of exceptional circumstances has been made).[16] I treat this criterion as a neutral consideration in this case.

• [17] In Kornicki v Telstra-Network Technology Group,[18] a Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the merits of a case where an extension of time is being considered.[19] In this regard, the Full Bench (relevantly) said:

"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."

• [18] The Applicant case on the merits is summarised in his Form F2, as follows:

"I have been unfairly dismissed because I raised two disputes on my personal bank card for transactions I did not recognise. The disputes involved two merchants: one for $49.97 and another for $500.00, which consisted of multiple transactions. The $49.97 dispute was accepted and refunded, while the $500.00 dispute was rejected.

I was accused of making a false dispute in an attempt to gain financial benefit. However, I made these disputes purely as a customer of the bank - not in any way connected to my employment. I acted in good faith based on information available to me at the time.

I also explained and provided evidence during the investigation that the transaction relating to the Allawah Hotel did not appear under that name on my banking records, making it difficult to identify. The other transaction involved a third-party individual whom I was unaware of at the time of lodging the dispute.

Given these facts, the allegations against me are baseless, and my dismissal was unjust."[20]

• [19] At the hearing, the Applicant pointed out that when a transaction dispute is lodged with a bank, one is not able to withdraw the dispute if they subsequently become aware that they have wrongly disputed the transaction. He further relied upon the following written submissions:

"The grounds for my dismissal appear to be based on an assumption that I lodged certain transaction disputes for personal financial gain. I reject this implication entirely.

At the time of lodging the disputes, I could not recognise the merchants involved. The right to dispute an unrecognised transaction is a basic consumer right, and I exercised that right in good faith-as any bank customer is entitled to do.

The transactions in question were processed through QR code ordering at the Allawah Hotel, but were in fact handled by a third-party point-of-sale company. This naturally leads to confusion, as the transaction description does not clearly reflect the actual venue name. I have attached a reference from ING Bank showing similar naming inconsistencies for transactions at the same location.

If these disputes had been lodged by a non-employee customer, it is highly unlikely that the bank would have taken punitive action-let alone contacted the customer's employer. The response in my case indicates a double standard applied to me as an employee, one that is not applied to the general public.

Furthermore, if the bank believed the disputes were in error or improper, it had the opportunity to reverse the payments and address the issue via standard transactional correction processes.

That did not happen. Instead, the matter was escalated directly to employment discipline and reporting, without affording me the same treatment or margin for error given to regular customers.

It is also important to note that, for any transaction involving a third-party merchant processor, this is fundamentally a civil consumer issue external to the scope of employment. I should not have been judged professionally or punitively based on such an external matter that falls outside my work duties and occurred in the context of using bank services as a private customer.

Bank employees, when acting as customers, should not be subjected to internal disciplinary assumptions or disproportionate scrutiny based on their consumer activity. In my case, the dismissal was based on a flawed interpretation of intent and a lack of fair procedural consideration."[21]

• [20] The Applicant also highlighted that as a result of his dismissal for serious misconduct, the Respondent has placed a notation upon his employment record as having been "dismissed by reason of misconduct of a serious nature". Various banks (i.e. the Respondent, and other bank employers) have signed up (or subscribed) to the Australian Banking Association's "Banking Industry Conduct Background Check Protocol" (Banking Conduct Protocol). Under this Protocol, the serious misconduct notation (in the Applicant's employment record with the Respondent) will be disclosed by the Respondent to other banks who make inquiries about employing the Applicant. In other words, the Applicant is unlikely to be employed again in the banking industry due to him being dismissed for serious misconduct, and the operation of the Banking Conduct Protocol. This means that the implications (or impact) of the Applicant's dismissal is not confined to his job with the Respondent, but extends to his on-going career prospects in the banking industry. The Applicant is the sole income earner in his family.[22] He has been employed by the Respondent since April 2001. Prior to that he worked in the tourism industry, but lost his job due to the impact of the COVID-19 pandemic upon that industry.[23]

• [21] The Respondent's case on the merits (in short summary) is that it investigated the disputed transactions and determined that the Applicant must have been responsible for them. This is because the Applicant was at the Allawah Hotel venue on the day that the disputed transactions were made, and/or facial recognition software (embedded within the Commonwealth Bank App) was used to make and/or view (review) the transactions.[24] The Respondent points out that all of its evidence as to the disputed transactions is not before me (as this is an out of time hearing), but that it will be able (if required) to advance evidence at a contested hearing on the merits sufficient to establish that the Applicant disputing the relevant transactions encompassed fraudulent intent and dishonesty on his part to obtain a benefit (i.e. refund) in respect of the disputed transactions.

• [22] The Respondent further says that given it is a signatory to the Banking Conduct Protocol, it is unable to reverse its recorded decision to dismiss the Applicant for serious misconduct. It must also pass onto other banking employers (who make inquiries about employing the Applicant) that the Applicant was dismissed for serious misconduct. In other words, the Banking Conduct Protocol prohibits the Respondent from doing a 'deal' with an employee (to settle their unfair dismissal proceedings) if that deal involves amending the Applicant's employment records to remove a reference to his dismissal, or his serious misconduct, because that would undermine one of the core purposes of the Banking Conduct Protocol (i.e. to make employees who have engaged in serious misconduct at a bank unemployable at other banks via what amounts to a banking industry offender register). Whilst not all banks or other financial institutions are signatories to the Banking Conduct Protocol, many are.

• [23] On the materials before me, and on a preliminary assessment basis, the Applicant's case is not without merit. In the circumstances of this case, I consider that the merits weigh strongly in favour of the existence of exceptional circumstances. Key questions that arise include whether or not the Applicant held requisite fraudulent intent when he disputed the relevant transactions, whether or not his conduct in disputing the relevant transactions occurred in the course of his employment (such that it provided a valid reason for his dismissal), and whether or not the application of the Banking Conduct Protocol is fair or otherwise justified in the facts and circumstances of this case. The Applicant noted at the hearing that he is still making enquiries as to whether his cousin, who he says shares access to his phone's facial recognition software, could have been responsible for the transactions.[25] In short, there remains significant ambiguity (at least at this point in time) as to whether or not the Applicant was in fact responsible for the disputed transactions, and/or whether he held fraudulent intent in disputing such transactions. The situation is most unsatisfactory in circumstances where the Applicant's career prospects in the banking industry have also been curtailed.

Fairness as between the Applicant and other persons in a similar position[26]

• [24] I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[27] Given that neither party made relevant submissions on this issue, and I am not aware of any cases where there have been the same, or similar, characteristics and/or circumstances, I treat this criterion as a neutral consideration.

• [25] I have taken into account and considered each of the criteria set out under s.394(3)(a)-(f) of the Act. One of these criterion (reason for delay) weighs against, four of the criteria are neutral, and one criterion (the merits) weighs strongly in favour of a finding as to the existence of exceptional circumstances.

• [26] Weighing all the criteria that I must, by taking into account all of the matters under s.394(3) of the Act together, I am satisfied that in this case there are exceptional circumstances in the Nulty sense.[28] This in turn warrants consideration of the exercise of my discretion to allow a further period of time for the Applicant to file his Application. As to whether to exercise this discretion in this case in favour of extending time, I consider that in all the circumstances it is appropriate, fair, and equitable for me to do so. Indeed, I am not aware of any reason to not exercise my discretion to extend time in this case.

• [27] I exercise my discretion to grant the Applicant an extension of time to file his Application to 28 April 2025. An Order [PR788945] to this effect will be issued with this Decision, and a listing will be issued to set the matter down for a conciliation conference between the parties.

Ms Stephanie Harrington, in-house Legal Counsel, appeared for the Respondent.

[1] [2011] FWAFB 975.

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

[3] [2016] FWCFB 5500.

[4] (1964) 38 ALJR 293.

[6] Section 394(3)(a) of the Fair Work Act 2009 (Act).

[7] [2021] FWC 3903.

[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, at [39]-[40].

[10] Shaw v ANZ Bank [2015] FWCFB 287, at [12].

[11] [2021] FWC 3903, at [25], see also at [19]-[24].

[12] Applicant's Outline of Submissions; Digital Hearing Book or Court Book (CB), pp.21-22.

[13] Respondent's Outline of Submissions, at [24]; CB, pp.36-37.

[14] Section 394(3)(b) and (c) of the Act.

[15] Section 394(3)(d) of the Act.

[16] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, at [38]).

[17] Section 394(3)(e) of the Act.

[18] Kornicki v Telstra-Network Technology Group Print PR3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).

[19] Albeit under s.170CE(8) of the (now repealed) Workplace Relations Act 1996 (Cth).

[26] Section 394(3)(f) of the Act.

[27] Pitrau v Barrick Mining Services Pty Ltd [2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP, at 151-152, [37].

[28] [2011] FWAFB 975, at [13].

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