Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objections: not dismissed, the application being filed outside the 21 day time period - extension of time not granted - application dismissed.

• [1] Ms Katerina Vounakis (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting an unfair dismissal remedy. Ms Vounakis alleged that she had been unfairly dismissed from her employment as a Property Manager with Universal Rentals Pty Ltd (Universal Rentals/the Employer/Respondent).

• [2] The Respondent made two jurisdictional objections; that no dismissal at the initiative of the Employer had occurred and that the application was filed beyond the 21 day legislative time frame for filing an unfair dismissal application. This decision relates to this jurisdictional issue only regarding the required extension of time to accept the application. The relevant legislative provisions are set out below.

• [3] s.394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s.394(3). The Applicant's application was lodged seven days outside the 21 day period.

• [4] The Act allows the Commission to consider extending the period within which an application for an unfair dismissal can be accepted if it is satisfied taking into account the criteria in section 394(3) and that the test of 'exceptional circumstances' is met.

• [5] s.394 (3) [Extended Time Limit] states:

"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."

• [6] The Act does not define 'exceptional circumstances' per se, but guidance can be taken from previous decisions. In the decision of Nulty v Blue Star Group Pty Ltd, the Full Bench said that in order to be 'exceptional', the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[1] 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 can be considered exceptional.[2]

• [7] The Respondent in this matter sought to be legally represented. Ms Vounakis was self-represented. Directions were set for the filing of submissions on legal representation of the Respondent. After consideration of the legal representation submissions, Universal Rentals was granted permission (pursuant to s.596(2)(a)) of the Act) to be represented by Murray Procter, Partner and Josh Dunn, Associate, of Franklin Athanasellis Cullen Pty Ltd. Permission was granted given the complexity of the matter, to enable the Respondent's legal representative to contribute to the efficient and effective handing of the matter.

• [8] The Applicant sought to confine her post employment medical information from the Employer and not to have to participate in Commission proceedings with the Employer present, whether conducted via telephone or in person. The Respondent's representative provided an undertaking regarding the Applicant's medical records whereby information could be relayed to them without copying the Respondent, as per the process sought by the Applicant. They would however be able to seek instructions.

• [9] In addition to submissions from both parties, Ms Vounakis filed a witness statement. Mr Darren Piper, the sole Director of Universal Rentals, filed a witness statement. Due to the Applicant's post- employment medical issues, it took a lengthy period for the Applicant to file the requisite materials.

• [10] There has been delay in this matter given that around a week and a half before the cessation of employment, which is referred to later, the Applicant on her advice had sought mental health support. The medical information provided by the Applicant, was that she could not progress the matter. However, the medical practitioners then provided circumstances where.it was accepted that the Commission was able to progress the matter.

• [11] Ms Vounakis was a Property Manager with the Respondent since 9 January 2023. After nearly two years of employment with the Respondent, the Applicant had sent an email to Mr Piper, Director, on 28 November 2024. The Applicant submitted that this was after she had a panic attack/nervous breakdown in the office. There is no reference to this in the resignation letter which stated:

"Please accept this email as my official resignation.

Whilst I am only required to provide you two weeks notice, I will be providing you 2 months from today to allow the cleanest of handovers.

My last working day will be Friday 24th January 2025"

• [12] The materials presented in this case by the Applicant referred to a resignation associated with a two month notice period to allow for a satisfactory handover. The Applicant stated this was a forced There are differing viewpoints in relation to the resignation and whether this is a dismissal within the meaning of s.386 of the Act. It is necessary to refer to the letter of resignation which is integral to the timeline relevant to the delay experienced by the Applicant in filing her unfair dismissal application and the events relevant also to the Employer in receiving such.

• [13] Mr Piper stated that even though the Applicant provided the notice period of two months, that as per the terms of her contract, her notice period would actually just be the two weeks. The Applicant had a medical certificate from her general practitioner from 2 December 2024 to 16 December 2024. On 9 December 2024, via email the Applicant tried to revoke her resignation, however the Respondent emailed her back on the same day to state that the revocation was not accepted. He then stated that the two week notice period would start on that day (to finish on 23 December 2024).

• [14] The 23 December 2024, being the day the Applicant was paid up to, is taken to be the day that the employment relationship ceased (as submitted by both parties), and consequently when the time for lodgement commenced. The 21 day statutory timeframe for lodgement ceased on 13 January 2025. The Applicant lodged her s.394 application seven days late on 20 January 2025.

• [15] The Applicant had stated that around two and half weeks before she sent her resignation email, on the 11 November 2024, that she provided the Respondent with a medical certificate but that this was not facilitated or accepted by the Employer, which caused her to have a nervous breakdown in the office. This event she stated was a precursor to the resignation/cessation of employment. There is a significant difference in the submissions of the Parties.However prior to allocation to my chambers the Applicant filed documents and first correspondence to the Chambers of the FWC Regional Coordinator. That evidence in this matter, forms part of the documents between the Parties.This correspondence is set out below. Given the post-employment medical records provided by the Applicant, a series of accommodations to the process have been afforded to the Applicant, with agreement by the Respondent's legal representatives.

• [16] There has been delay in this matter given the Applicant has been covered by medical certificates for a significant period of time; after tendering her resignation and since the lodgement of her application but prior to filing all of her material in the jurisdictional matter.In addition, there has been some inconsistency between the medical certificates received in the coordinated period prior to the matter being allocated. Further, a short time after the matter was allocated, Chambers received a medical certificate from the Applicant's general practitioner stating that the Applicant would be unfit to attend to the Commission proceedings. During this time, it was stated on behalf of the Applicant that she had been receiving treatment at a mental health facility. In relation to the progress of this matter, the Commission has taken into consideration the medical certificates and evidence of the Applicant. It was attempted to progress of the matter however this was unable to occur due to the medical evidence of the Applicant. The Applicant was able to later provide the Commission with her materials but sought on her medical information not to appear in person or by phone with the Employer present. By agreement the matter has been undertaken on the papers.

• [17] In assessing an extension of time, pursuant to s.394(2) the Commission must be satisfied that 'exceptional circumstances' exist in addition to the criteria in s.394(3) as follows:

(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."

• [18] In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when 'exceptional circumstances' are established, there remains discretion to grant or refuse an extension of time.[3] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

• [19] The Act does not define 'exceptional circumstances' per se, but guidance can be taken from previous decisions. In the decision of Nulty, the Full Bench said that in order to be 'exceptional', the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[4] 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 can be considered exceptional.[5]

• [20] In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (Stogiannidis),[6] a Full Bench of the Fair Work Commission provided clarification regarding the assessment of exceptional circumstances.

• [21] The Full Bench in Stogiannidis said that:[7]

"[14] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension. A decision whether to extend time under s.366(2) involves the exercise of a discretion.

[19] To take a matter into account means that the matter is a 'relevant consideration' in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:

'To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant'."

• [22] The following statutory criteria are to be considered in the application for the extension of time.

• [23] The reason for the delay is not on its own required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[8]

• [24] The Applicant submitted that the reason for her delay in lodging her application was that as a result of the actions of the Respondent, that she had suffered severe burnout and a major depressive episode where she was admitted to seek mental health support. She stated that she had been unable to do basic day-to-day activities. Certainly, there is some significant medical information filed after the finalisation of the employment but some of it is also inconsistent between treating medical practitioners. These inconsistencies include the below two certificates which both cover the period from 23 December 2024, until the date of lodgement:

(a) On 20 December 2024, a Work capacity certificate was filled out by a psychiatrist within the Applicant's mental health facility, this stated that the Applicant required treatment for the next three months, to be reviewed in one month. This certificate stated that the Applicant could do daily life administration at low to moderate levels but could not do complex tasks.

(b) However, on 14 February 2025, the same psychologist completed a medical certificate that stated that from 20 December 2024 until the proposed discharged date of 18 February 2025, that the Applicant has been unable to attend to duties or commitments, or administrative requirements during this time.

• [25] The Respondent submitted that the Work Capacity Certificate should be preferred as it is contemporaneous. The Respondent submitted that this certificate, as above, stated that the Applicant had capacity for low to medium daily life administration tasks. The Respondent considered that lodging an unfair dismissal application isllll. The Respondent therefore submitted that there was no evidence establishing that the Applicant was so incapacitated for the whole period of delay that she could not have filed her application and therefore that there are no exceptional circumstances.

• [26] There were further personal circumstances so to be taken into account for the Applicant, this included the death of her friend prior to the resignation, and traumatic childhood. Whilst the Commission has endeavoured to step respectfully through the medical evidence of the Applicant, these circumstances of personal information are included as references are made by the parties in the written materials, however while reference is made, it is unnecessary to present the totality of these circumstances in a public decision. These circumstances cannot be attributed to the Employer.

• [27] The Applicant resigned in writing on 28 November 2024. At that time while she was only required to provide two weeks of notice, her resignation was accompanied with a two month notice period indicating she wanted to provide a satisfactory handover. Some of the details in relation to the communication between the parties in relation to the resignation has been referred to in paragraph [13] above. There is a multiplicity of correspondence between the parties during this period, this correspondence has been considered but is not included for clarity.

• [28] The Chambers of the FWC Regional Coordinator wrote to the Applicant in relation to her application being filed 7 days late. Chambers asked her to respond by email explaining why the Applicant thinks there are exceptional circumstances, as above given this evidence was the most contemporaneous (dated 6 February 2025), it is important to set this evidence out:

"The respondent has caused extreme damage to my wellbeing [redacted]. This can be backed up by my doctors, psychologist.

I am emailing you directly from [redacted] which is a mental health facility in [redacted], I was admitted into the [redacted] Hospital on 12th December and moved to a private facility [redacted]. I still reside here due to Major Depressive Disorder caused by severe burnout from work.

Per attachment I started the process of the unfair dismissal on the 23rd December, to ensure I would meet the 21days time frame, however due to the state of my wellbeing, and my severe depression I was unable to do day-today tasks (shower, clean teeth, eat etc.) and I had severe side effect to medication changes.

I had planned to submit it on the 14th of January however the respondent sent me an email that caused me distress [redacted].

I was [redacted] recovering from the incident for the remaining week. Lodging this on the 20th of January 2025 was truly the best I could do, given all my circumstances however I hope you can see in the history I made attempts at filling this all out as well as I could when I had small moments of sanity.

My GP, Psychologist, Psychotherapy, Psychiatrist, [redacted - mental health facility], [redacted] Hospital will all be able to provide all the information you require to assist with this delay made."

• [29] The Applicant submitted that on 23 December 2024 that she started lodging her application, it is relevant to note the automated online lodgement - partial completion of form email she received included the following:

"Please be aware your form has NOT been lodged.

Strict lodgement timeframes apply to may forms. It is your responsibility to ensure your form is lodged in time"

• [30] The Applicant submitted that on 6 January 2024, she met with her psychiatrist at the mental health facility and stated that they discussed her taking the next week to focus on submitting her WorkCover and Commission applications. The psychiatrist agreed that she could do this. The Applicant's WorkCover claim was lodged on 13 January 2025, which is the same date that the Commission's 21 day lodgement timeframe ended. The Applicant stated that she believed she had until 14 January 2025 to lodge with the Commission.

• [31] On 14 January 2025, the Respondent sent the Applicant an email, which she states caused her distress, and she was admitted to hospital on this day. She stated that after this, she was unable to lodge her application until 20 January 2025.

• [32] The Applicant considered that she needed to include further information with her Commission application than that of her WorkCover claim (of which she filed the same statement).

• [33] From the Applicant's evidence after 14 January 2025, her capacity was limited. However, the reason for delay has to take into account the whole period, which includes from 23 December 2024 to 13 January 2025. The Applicant was able to submit her WorkCover claim on 13 January 2025. The Applicant was able to start her Commission application on 23 December 2024. The Applicant could have advanced her application during the week that she and her treating psychiatrist agreed to use for lodging her claims and to, submit her Commission application (and then add further information and evidence after this time if she needed to).

• [34] The Applicant's medical certificates by the same psychiatrist, as outlined at paragraph [23] have been taken into account. The medical certificate dated 14 February 2025, which is backdated over a month and a half is taken into account. however, whilst the applicant was able to file WorkCover matters, there were limitations on her filing material for this current matter. For example, this medical certificate covers the period where the Applicant was able to submit her WorkCover claim, and she had communicated with the Commission during this period as well, including to the Chambers of the Regional Coordinator on 6 February 2025 as outlined above. This contradicts this medical certificate which stated that the Applicant was unable to complete any administrative requirements during this period. However the Applicant's completing a WorkCover claim and being able to write an email in relation to exceptional circumstances, lodging an unfair dismissal application with the Commission is a low to medium administrative task. Therefore from the evidence, the Applicant had capacity before the 13 January 2025 to submit her application, as she did with her Work Cover claim.

• [35] These matters weigh against a finding for the Applicant on this criterion.

(3)(b) Delay in being made aware of the dismissal

• [36] Given this is a matter involving resignation, forced or otherwise, this is a neutral consideration.

• [37] While the Applicant did try to revoke her resignation, this was not accepted. This is considered to be a neutral consideration.

• [38] There was no evidence submitted in relation to any prejudice that this may cause the Employer. However, the absence of prejudice, does not weigh in favour of granting the extension of time. I consider this to be a neutral consideration.

• [39] The parties had completely different views of whether the Applicant was dismissed pursuant to s.386 of the Act. In the decision of Telstra-Network Technology Group v Kornicki,[9] the Full Bench of the Australian Industrial Relations Commission said, in respect to the merits of an application:

"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."

• [40] The approach of the Commission is to be cautious in relation to considering the merits of the application and it would be, premature to form a determination at this stage. From the evidence, the Applicant did resign and tried to give a significant notice period beyond that in her contract. This indicates that she was willing to continue her employment for this period which is inconsistent with 'heat of the moment' conduct. This weighs against granting an extension of time.

(3)(f) Fairness as between the person and other persons in a similar position

• [41] Neither party raised any other relevant matter concerning this consideration. This matter is considered to be neutral.

• [42] Having considered all of the factors set out in s.394(3), and all of the matters raised by Ms Vounakis, I am not satisfied that the requisite 'exceptional circumstances' exist. There is not an exceptional or reasonable explanation for the overall delay in filing the application. The applicant was able to complete administrative tasks similar to making this application but file to file her Fair Work commission application.

• [43] It is determined that the application was filed out of time pursuant to s.394(2) and no extension of time is granted considering s.394(3). Accordingly, the application made pursuant to s.394 is dismissed and the jurisdictional objection in relation to this matter being lodged out of time is upheld.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1, 5 [13].

[3] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1, 6 [15].

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [38].

[7] Ibid [14]; [19]; [38]-[41]; [44].

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

[9] (1997) 140 IR 1.

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