s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time -exceptional circumstances - application to proceed.

• [1] Ms Kate Sainty was employed by Karlayura Personnel Pty Ltd from Thursday 4 April 2024 until around Thursday 17 April 2025. On Friday 4 July 2025, Ms Sainty applied to the Commission for an unfair dismissal remedy under the Fair Work Act 2009 (Cth).

• [2] An unfair dismissal application must be made within 21 days after the dismissal took effect;[1] or, within such further period as the Commission allows.[2] In Ms Sainty's case, the period of 21 days ended at midnight on Thursday 8 May 2025. Her application is 57 days out of time.

• [3] Ms Sainty seeks an extension of time for her application. The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, I must consider the factors in ss 394(3)(a)-(f) of the Act.

• [4] I conducted a determinative conference on Thursday 14 August 2025. Ms Sainty gave evidence for her case. Mr Campbell Ballantyne, Director, spoke for Karlayura.

• [5] Having considered the evidence before me and the factors in s 394(3) of the Act, I find that there are exceptional circumstances, and an extension of time is justified.

• [6] The detailed reasons for my decision follow.

• [7] 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.[3]

• • Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon.[4]

• • The circumstances themselves do not need to be unique, or unprecedented, or even very rare.[5]

• • Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[6]

• [9] In determining whether there are exceptional circumstances, I must consider the criteria in s 394(3) of the Act. I set out my consideration below.

• [10] 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.[7]

• [11] 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.[8]

• [12] Karlayura is a labour hire provider in the mining, civil and construction industries. Ms Sainty was employed on a casual basis as an Operator.

• [13] On Thursday 10 April 2025, Ms Sainty was flown out to a client's site. Ms Sainty says that when she arrived on site, she found out that the role was not a role she was qualified to do and so refused to do it. Ms Sainty was flown out from the site the next day on Friday 11 April 2025.

• [14] Ms Sainty's evidence is that following her demobilisation, she contacted the Fair Work Ombudsman about her claim for unpaid wages. Ms Sainty said she also did not realise that the FWO and the Commission are different institutions. Ms Sainty provided an email from a FWO Officer, as well as the notes from a call between Ms Sainty and the FWO Officer on 16 May 2025.

• [15] The email from the FWO Officer sets out the following:

(a) Ms Sainty first contacted the Ombudsman Infoline on Monday 14 April 2025 regarding Karlayura not providing her with work. The Ombudsman listed Ms Sainty as an existing employee, which meant there was no discussion about dismissal.

(b) Ms Sainty next contacted the Ombudsman Infoline on Wednesday 23 April 2025. Ms Sainty informed the Ombudsman that Karlayura had told her that her employment had not been terminated, but her work was no longer required.

(c) On Monday 12 May 2025, Ms Sainty contacted the Ombudsman Infoline and asked for assistance. Ms Sainty was referred to the Ombudsman's Dispute Assistance team.

(d) On Friday 16 May 2025, Ms Sainty spoke with the FWO Officer. Ms Sainty raised for the first time that she had been dismissed.

• [16] The FWO Officer's call notes for the call on Friday 16 May 2025 show that:

(a) Ms Sainty did not realise that she had not lodged an unfair dismissal application.

(b) The FWO Officer advised Ms Sainty that unfair dismissal applications must be lodged with the Commission and must be done within 21 days of the employment ending.

(c) Some exceptions can be made in exceptional circumstances; the FWO Officer recommended to Ms Sainty that she seek independent legal advice on this.

• [17] The FWO Officer sent Ms Sainty an email after this phone call summarising the above. Ms Sainty agrees that the call notes are an accurate representation of her discussion with the FWO Officer.

• [18] Later on Friday 16 May 2025, Ms Sainty then went to the Commission's Online Lodgment Service to file an unfair dismissal application. However, whilst Ms Sainty completed the application, she did not take the final step of submitting her application.

• [19] Ms Sainty says that she did not realise her application had not been filed until Friday 4 July 2025, when she called the Commission seeking an update on her application. Ms Sainty was told that her application had not been filed; she properly filed the application later that day.

• [20] Ms Sainty provided a screenshot of the Commission's OLS portal that she took on Friday 4 July 2025. It shows that Ms Sainty started her application on Friday 16 May 2025.

• [21] From Friday 11 April 2025 to end of May 2025, Ms Sainty corresponded via text message with Mr A,[9] Karlayura General Manager, about whether she would be paid for mobilising to the site and attending training on Friday 11 April 2025.

• [22] Ms Sainty provided her extensive text messages and emails with Mr A as part of her evidence. From what I can see, Mr A at no point clearly told Ms Sainty that she had been dismissed or that her employment had ended. The only indication I can possibly see of the employment relationship being questionable are two text messages from Mr A on Wednesday 23 April 2025, when he and Ms Sainty were arguing about the circumstances of her demobilisation from site. Mr A texted Ms Sainty, 'You weren't terminated you were offered another job and refused to do it', and 'Good luck Kate like I said if anything comes up I'll let you know'. I accept that as Ms Sainty was employed on a casual basis for a labour hire provider where she was offered placements with various clients, it is not surprising that it did not twig earlier for Ms Sainty that the employment relationship may have been over.

• [23] On Wednesday 21 May 2025, Ms Sainty asked Mr A for a separation certificate. This was sent to her on Wednesday 11 June 2025. The separation certificate stated that the employment relationship ended on Thursday 17 April 2025.

• [24] Karlayura did not file any materials or provide any evidence. Mr Ballantyne also did not question Ms Sainty's account of events beyond disagreeing over what occurred when Ms Sainty was mobilised to the client's site on Thursday 10 April 2025.

• [25] I accept Ms Sainty's evidence that after her demobilisation she contacted the FWO, though that was in relation to her grievance over alleged unpaid wages. Ms Sainty effectively says that until she received her separation certificate, she did not know the exact date her employment ended.

• [26] Regardless, on Monday 12 May 2025, it clearly occurred to Ms Sainty that there was a possibility the employment relationship had ended, and she followed up her previous queries with the FWO. I accept her evidence that she did not realise that the FWO and Commission are two different bodies. I also accept her evidence that upon being told on Friday 16 May 2025 that if she wanted to pursue an unfair dismissal application, she needed to file it with the Commission, she then went and filled out the form on the Commission's OLS that day. I further accept Ms Sainty's evidence that she did not realise that she had not taken the final step of actually lodging the application.

• [27] There is a seven-week gap between Friday 16 May 2025 - when Ms Sainty thought she had filed her unfair dismissal application - and Friday 4 July 2025, when Ms Sainty called the Commission to seek an update on her application. While on the long side, I have taken into account that as an unrepresented person, Ms Sainty does not have prior experience with the Commission or how it processes applications.

• [28] I find that the combination of Karlayura's failure to clearly communicate that the employment relationship was over; Ms Sainty's early engagement with the FWO; Ms Sainty's misunderstanding that the FWO and Commission are separate bodies; Ms Sainty's prompt action to fill out an unfair dismissal application on the Commission's OLS once she understood where she needed to file; and Ms Sainty's inadvertent failure to take the final step of lodging her application together cogently explain the delay in her filing her unfair dismissal application.

• [29] This is a factor that weighs in favour of a finding of exceptional circumstances.

2.2 Whether the person first became aware of the dismissal after it had taken effect

• [30] As outlined above, based on the evidence before me, there was no clear communication of the dismissal until the separation certificate was provided to Ms Sainty. During the determinative conference, even Mr Ballantyne was not sure of the date the employment relationship ended. This is a factor that weighs in favour of a finding of exceptional circumstances.

• [31] Ms Sainty says that when she was demobilised from the client's site she repeatedly challenged Karlayura's decision not to pay her the allegedly unpaid wages and the reason why she was demobilised. This is clear from the text messages Ms Sainty provided. Though it was not clear at the time that she had been dismissed, I do find that Ms Sainty challenged Karlayura's actions that were involved in the employment relationship ending. The text messages provided by Ms Sainty show that she also continued to challenge the circumstances of her demobilisation even after Thursday 17 April 2025. This is a factor that weighs in favour of exceptional circumstances.

2.4 Prejudice to the employer (including prejudice caused by the delay)

• [32] Ms Sainty submits that there has been no disadvantage to Karlayura. However, the absence of prejudice is not, of itself, conclusive of exceptional circumstances.[10] In these circumstances I treat this consideration neutrally.

• [33] The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[11] Further, the primary consideration is whether Ms Sainty has an arguable case.[12]

• [34] Ms Sainty says that she was dismissed due to a superintendent's vendetta against her, and there was no valid reason for her dismissal. Ms Sainty further effectively says that the dismissal was manufactured due to her refusing to do a role that she didn't agree to perform.

• [35] Karlayura effectively says its client requested that Ms Sainty be removed from site. Further, that it tried to redeploy Ms Sainty, but she refused other roles.

• [36] Given the limited evidence provided, I am unable to make any merit findings at this preliminary stage. I find that this consideration is a neutral factor in assessing whether there are exceptional circumstances.

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

• [37] This factor relates to ensuring the application of consistent principles and may relate to matters currently before the Commission or prior Commission authorities.[13] Ms Sainty did not address the substance of this consideration. I find that this is a neutral consideration in the circumstances.

• [38] Having considered all the circumstances of this matter and the factors in s 394(3), I am satisfied that even though the circumstances considered individually may not be unusual or significant, when considered together, there are exceptional circumstances. Ms Sainty's explanation for why her application was filed late is cogent, and I have given weight to Karlayura's failure to clearly communicate the end of the employment relationship in a timely manner..

• [39] As I am satisfied that there are exceptional circumstances, I allow Ms Sainty a further period of time to make her application extending to the date the application was filed on 4 July 2025.

• [40] The matter will now be programmed for further determination.

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

[2] Ibid s 394(2)(b).

[3] Ibid ss 394(2)-(3).

[4] Nulty v Blue Star Group Ltd [2011] FWAFB 975 [13].

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

[9] Pseudonym used as this individual did not give evidence.

[10] Jovcic v Coopers Brewery Limited [2023] FCA 797 [16]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 (BQQ) [33]; Parker v R [2002] FCAFC 133 [6].

[11] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) [14].

[12] See Craig Thomson v Linx Cargo Care Pty Ltd [2022] FWCFB 40 [32]-[34].

[13] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 [41].

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