s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application out of time

• [1] Ms Karma Yangzom worked as a Chef for Meet-Point House Pty Ltd (MP House) in Hawker, Australian Capital Territory, from either 22 April 2024 or 2 May 2024 until 3 January 2025. It is not necessary for present purposes to ascertain the precise commencement date. On either scenario, the period of employment was less than 12 months. At the time of dismissal, MP House was a small business employer.

• [2] On 11 March 2025, Ms Yangzom applied for an unfair dismissal remedy. Applications of this type must be made within 21 days after the dismissal took effect, or if there are exceptional circumstances, such further period as the Commission allows.[1]

• [3] MP House objects to the application because it was filed late and because it says Ms Yangzom has not completed the minimum employment period. There is no dispute about the date of dismissal. I find that the application was made 46 days late. MP House also contended that Ms Yangzom was not "dismissed". The submission ignores the plain words of the termination letter sent to Ms Yangzom on 3 January 2025. I find that Ms Yangzom was dismissed by MP House.

• [4] The question is whether to allow an extension of time for Ms Yangzom to apply for an unfair dismissal remedy. For the reasons that follow, I have decided not to allow an extension of time. The application will instead be dismissed.

• [5] Under section 394(2) of the Fair Work Act 2009 (Cth) (the Act), the Commission can allow an extension of time to apply for an unfair dismissal remedy if satisfied there are exceptional circumstances, taking into account:

a) the reason for the delay

b) whether the person first became aware of the dismissal after it had taken effect

c) any action taken by the person to dispute the dismissal

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

e) the merits of the application and

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

• [6] The meaning of "exceptional circumstances" was considered and summarised in Nulty v Blue Star Group:[2]

"[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."[3]

• [7] Reason for delay: The reason given for the delay in making the application is that Ms Yangzom was undergoing treatment after cancer surgery on 9 December 2024. She had follow-up check-ups, consultations with specialists for further treatment, daily and weekly therapy, and medical advice for complete rest. According to Ms Yangzom, she was bedridden for more than one month. Ms Yangzom was also waiting for MP House to respond to an underpayment claim but this did not occur.

• [8] Medical evidence provided by Ms Yangzom supports the submission that she was recovering from surgery at the time of dismissal. There is some evidence of communication between Ms Yangzom and the Fair Work Ombudsman about underpayment of wages, which led to a request for recovery of wages on 13 January 2025. In the same correspondence, Ms Yangzom advised MP House that she felt the termination of her employment had been unfair.

• [9] I find exceptional circumstances in the case related to Ms Yangzom's surgery on 9 December 2024. This made it difficult for her to operate normally for a period of approximately one month, most of which fell within the period of employment. Her recovery also had continued to affect Ms Yangzom in the period after dismissal, although by 13 January 2025, I am satisfied that she was able to make relevant enquiries and correspond with both MP House and regulatory agencies. On balance, these matters weigh in neutrally in relation to a grant of additional time - for the first 10 days after dismissal, it was likely difficult for Ms Yangzom to progress her claim. In the subsequent period, there is evidence that she had the relevant capacity to proceed with an unfair dismissal claim, including within the 21-day filing period.

• [10] Whether the person first became aware of the dismissal after it had taken effect: Ms Yangzom became aware of the dismissal immediately on the day it took effect. The termination of employment was communicated to her in writing on that day. This is a neutral consideration.

• [11] Any action taken by the person to dispute the dismissal: Ms Yangzom did not seek to challenge the dismissal when it took effect. Her immediate response was to at least seek to remain employed while she completed skills assessments necessary for her visa. This request was refused and on 13 January 2025, Ms Yangzom told MP House that she felt the dismissal was unfair but sought a remedy only by way of recovery of underpaid wages and superannuation. This only changed when she filed the application for an unfair dismissal remedy almost 6 weeks later. These steps weigh marginally in favour of a grant of additional time.

• [12] Prejudice to the employer (including prejudice caused by the delay): There is some degree of prejudice to MP House if the application is allowed to proceed late because of the size of the business and the likelihood that at least one relevant witness may no longer be available. This weighs against the grant of additional time.

• [13] Merits of the application: On the materials, Ms Yangzom has not completed the minimum employment period. She was not a person protected from unfair dismissal, and the Commission has no power to order a remedy for unfair dismissal in dealing with the application (Act, s.382 and s.390).

• [14] It is worth recording that if Ms Yangzom had completed the minimum employment period, she would have had a reasonable case. The original reason given to Ms Yangzom for her dismissal was that MP House was reducing its casual staff for financial reasons. Ms Yangzom was not the only casual employee and not the only cook, but she was the only one dismissed. There is room for doubt about the veracity of the reason for dismissal given her absence due to medical reasons at that time. At the hearing, the owner of MP House gave evidence that performance was a reason for dismissal, although there is no evidence of any performance management process (formal or otherwise). Ms Yangzom was dismissed 2 days before she says she was due to return to work from a period of medical leave for cancer surgery. MP House says it was never provided a medical certificate, and did not know Ms Yangzom was coming back to work.

• [15] A role bearing striking similarity to Ms Yangzom's role was advertised the day after her sudden dismissal. There is a dispute about whether Ms Yangzom was casual or part-time and resolution of the dispute has potential implications for the process leading to dismissal. The dismissal also affected Ms Yangzom's visa status. Finally, the alleged underpayment of wages (which appears to have been resolved) is beyond the scope of these proceedings. Any outstanding claim of this kind can be pursued through the Fair Work Ombudsman or the Australian Taxation Office.

• [16] On balance, the merits weigh heavily against the grant of additional time in the circumstances because the minimum employment period was not completed.

• [17] Fairness as between the person and other persons in a similar position: This does not appear to be a material factor in the circumstances of this case. It is a neutral consideration.

• [18] I find exceptional circumstances in the case for the reasons described above. On balance, however, I am not persuaded to exercise my discretion to allow additional time for the application to be made. Part of the delay in filing is explained and part of it is not. Steps were taken by Ms Yangzom to dispute the dismissal about which she knew straight away. She sought to pursue a remedy in response to perceived unfairness, albeit only recovery of wages. There is some prejudice to MP House in connection with the delay. The merits weigh heavily against additional time because in the circumstances, no order for an unfair dismissal remedy could result.

Ms E McGlynn of Irwell Pty Ltd on behalf of MP House.

[1] Fair Work Act 2009 (Cth), s 394(2).

[2] [2011] FWAFB 975; [2011] 203 IR 1.

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