s 394 - Unfair dismissal

The Corporation Of The Trustees Of The Roman Catholic Archdiocese Of Brisbane

Application for an unfair dismissal remedy - extension of time

• [1] On 15 August 2025, Keisha Kerevani (the Applicant) applied for an unfair dismissal remedy having been purportedly dismissed by The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (the Respondent) on 4 March 2025. The Applicant lodged her unfair dismissal application with the Commission outside of the statutory time limit period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Respondent objected to the application on two grounds. First, the unfair dismissal application had been filed outside of the statutory period prescribed by s 394(2)(a) of the Act. Second, the Applicant had not been dismissed but had resigned from her position, giving notice of her resignation on 12 May 2025, with her last day of permanent employment being 3 June 2025. The Applicant concurs that her last day of employment was 3 June 2025.

• [3] In respect to the first jurisdictional objection, it is accepted that there will be appropriate cases where the issue of an extension of time issue will be addressed and determined before the jurisdictional objection that an applicant was not dismissed.[1] As was stated in Taylor v Department of Justice and Community Safety, an appropriate case to proceed on the basis of an assumed dismissal in determining an application for an extension of time, includes one where an employee has resigned, and there is dispute about whether or not the resignation was 'forced', but there is no dispute as to the date the employment came to an end.[2]

• [4] It is, therefore, the first jurisdictional objection that this decision addresses. Relevant to that objection is whether there are exceptional circumstances regarding the late lodgement of the application, taking into account the factors in s 394(3)(a) to (f) of the Act. The Commission may extend the period under s 394(2), if satisfied that there are exceptional circumstances and it is fair and equitable to grant an extension.

• [5] Briefly stated, I have found that the Applicant's application was made some 52 days outside of the statutory period. Having considered the factors in s 394(3) of the Act, I do not consider the circumstances exceptional. It therefore proves unnecessary to consider whether it is fair and equitable that time should be extended. An extension of time for making the application is therefore declined and accordingly, the application is dismissed. An Order[3] to this effect will be issued with this decision. My detailed reasons follow.

• [6] For the Applicant's unfair dismissal application to now proceed, it is necessary for her to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and

(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

(e) the merits of the application; and

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

• [7] Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are 'exceptional circumstances'. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd ('Nulty'), where it was 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] It is accepted that 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]

• [8] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, clarification was provided by the Full Bench regarding the assessment of exceptional circumstances:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[6]

• [9] The views of the parties were sought as to whether they wished to proceed to a hearing. Both advised that their preference was to have the matter determined on the papers. Given the absence of a dispute in respect of the date of dismissal and noting the manner in which the Commission is required to perform its functions, I considered that the appropriate course.

• [10] In respect of the first factor, the Act does not specify what reasons for delay might fall in favour of granting an extension. However, decisions of the Commission have referred to an acceptable[7] or reasonable explanation.[8] The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however, all of the circumstances must be considered.[9]

• [11] The relevant period required to be considered under s 394(3)(a) of the Act is the period after the 21-day timeframe for lodging the application.[10] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[11]

• [12] In respect of the delay, the Applicant's primary reason for the delay is found at questions 1.4 and 2.1 of her unfair dismissal application and in the Applicant's submissions. In respect to responses in her unfair dismissal application, the Applicant acknowledged that her application had been filed late and detailed that following her dismissal she was significantly affected both emotionally and mentally. According to the Applicant the experience at the Respondent school left her distressed and overwhelmed, which impacted her ability to take immediate action (presumedly to make an unfair dismissal application).

• [13] In her written submissions the Applicant expanded upon the point of her being medically unwell, explaining that earlier in 2025, she had undergone surgery and required an extended period for recovery, for which she had requested leave without pay from the Respondent. The Applicant further noted that she had experienced significant stress and confusion arising from an ongoing situation at work, which made it difficult for her to process the events fully. On this point, it appears that there was an issue between the Applicant and a work colleague, and the Applicant notes having sought assistance from a senior leader to address the issue. The Applicant stated that her request for a face-to-face meeting (with a senior leader) was denied, leaving her feeling unsupported and without options. The Applicant said that the only option presented to her was to engage in mediation with the colleague, but she was not well enough to participate. The Applicant stated that she also requested an extension of her unpaid leave due to these circumstances, as she felt unable to return to work under the conditions at that time. According to the Applicant, that leave request was refused, ultimately leaving her with no choice but to resign. She stated that as a result, it took her longer than expected to come to terms with the situation and take the necessary steps to file her unfair dismissal application.

• [14] The Applicant provided two medical certificates, one for the period 24 March 2025 to 6 April 2025 and the other for the period 22 April to 3 June 2025.

• [15] It is accepted that an applicant's medical condition can be so significant that it affects the applicant's mental capacity to prepare and file an application with the Commission. However, much may turn on the evidence adduced to support such a proposition. In Underwood v Terra Firma Pty Ltd, the Full Bench accepted the finding made at first instance that the applicant had failed to positively demonstrate that his depressive illness had impacted his mental capacity so as to prevent him from making the application within 21 days.[12] The Full Bench affirmed the findings at first instance that the medical evidence relied upon 'did not positively demonstrate that the Appellant's depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame' and that no exceptional circumstances were established.[13]

• [16] In Merhi v Commonwealth,[14] the Full Bench assessed the applicant's evidence from her treating psychologist concerning her 'major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder' primarily by reference to the psychologist's assessment of the applicant's capacity to act. The Full Bench endorsed the finding at first instance that on the evidence 'the appellant's mental state did not prevent her capacity to engage in day-to-day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay'.

• [17] The evidence before me is insufficient to base a finding that the Applicant's mental health impacted upon her capacity to lodge her unfair dismissal application within the statutory time limit. The medical evidence provided by the Applicant relates to a period prior to the Applicant's resignation from the Respondent. Therefore, it does not positively demonstrate that the Applicant's mental health impacted her capacity so as to preclude the lodgement of an application within time. Whilst appreciative that the Applicant has experienced a most challenging period, the Applicant's self-assessment of her alleged psychological incapacity is an inadequate basis for arriving at a conclusion that the purported incapacity was a plausible reason for the delay.

• [18] As was identified in in Bates v Joblink Plus Limited,[15] having been drawn from the Full Bench decision of Shaw v Australia and New Zealand Banking Group Ltd,[16] stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. It is well-established that the loss of employment is a serious event in a person's life, and that the aforementioned responses and consequences are not unusual.

• [19] That the Applicant reports having sought alternate employment in the delay period demonstrates that the Applicant was not so incapacitated that she was unable to attend to the activities of daily living. In the absence of clear medical evidence showing incapacity, it will be difficult for an applicant to establish they were prevented from lodging an application due to a medical condition where the applicant demonstrates capacity to act by performing other tasks following the dismissal.[17] In this case, there is no probative medical evidence showing incapacity at a particular time or times in the delay period.

• [20] To the extent that the Applicant purports an unawareness of recourse though the unfair dismissal protections or the statutory time limit for making an unfair dismissal application, it is understood that ignorance of the law does not constitute a plausible reason for delay.

• [21] In my view, the reasons for the delay when considered together are insufficient to explain part of, or the entirety of, the delay period. These findings together weigh against a finding of exceptional circumstances. In arriving at my finding, I have considered the delay as the period beyond the 21-day period and have considered the events leading to the Applicant's notice of her resignation and what unfolded thereafter.

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

• [22] On 12 May 2025, the Applicant became aware that her permanent employment would come to an end as of 3 June 2025. The Applicant had given notice of her resignation and was therefore amply aware of when her last date of employment would be. It was therefore not the case that the Applicant was taken by surprise by the end of her employment. On balance, I consider this to be a factor that weighs against a finding of exceptional circumstances.

2.3 Action taken by the person to dispute the dismissal

• [23] It is to be appreciated that the Respondent holds the view that the Applicant voluntarily resigned from her position and therefore was not dismissed, whilst the Applicant considers she was dismissed.

• [24] I accept that the Applicant raised concerns with the Respondent relating to the alleged conduct of a colleague and the Respondent's handling of that issue. This was particularly so in the email to 'Greg Gran' dated 12 May 2025.

• [25] However, having considered the totality of the evidence, I am not persuaded that the Applicant disputed the basis upon which she resigned from her position to the extent that she alerted the Respondent to a prospective claim. Notwithstanding, on balance I consider this factor to be a neutral factor in all the circumstances.

• [26] When considering the factor of prejudice to the employer, the Commission considers whether the delay has caused the employer to suffer prejudice and whether the purported prejudice would not have been suffered had the application been made within 21 days of the dismissal taking effect. The Respondent does not appear to have purported suffering any prejudice in this case.

• [27] Having considered the material before me, I am not satisfied that the factor of 'prejudice' in this matter weighs toward a finding of exceptional circumstances and therefore consider it neutral.

• [28] Should the matter proceed further, the threshold issue for determination would be whether the Applicant was dismissed in circumstances where she resigned. It will therefore fall upon the Applicant to adduce probative evidence that the Respondent terminated her employment at its own initiative and/or that the course of conduct engaged in by the Respondent left her with no choice but to resign. Whilst there is some agreement between the parties as to the dates and times of emails and meetings, whether the Applicant was dismissed is clearly contentious and much centres on this point.

• [29] In Telstra Network Technology Group v Kornicki,[18] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench 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.[19]

• [30] Evidence on the jurisdictional objection is not commonly called at an extension of time hearing. As a result, for the purpose of determining whether to grant an extension of time to the Applicant to lodge her application, the Commission is not positioned to embark on a detailed consideration of the jurisdictional objection regarding the dismissal or the substantive case.[20] The jurisdictional objection more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the resignation if an extension of time were granted, and the matter proceeded. It follows that the merits prove a neutral consideration in the circumstances.

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

• [31] The criterion of 'fairness as between the person and other persons in a similar position', was considered by Deputy President Gostencnik (as he then was) in Morphett v Pearcedale Egg Farm, where it was said:

[C]ases of this kind will generally turn on 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 relate to matters currently before the Commission or matters which had been previously decided by the Commission.[21]

• [32] Based on the submissions filed, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party. As such, I consider it a neutral consideration.

• [33] The test of exceptional circumstances in s 394(3) of the Act is a stringent one.

• [34] In my view, the Applicant's explanation for the period of the delay is unsatisfactory for the reasons detailed. The remaining matters I need to consider are otherwise neutral (s 394(3) (c), (d), (e) and (f)), or weigh against a finding of exceptional circumstances (s 394(3)(b)).

• [35] Having considered the submissions and evidence, I am not persuaded on balance that there are exceptional circumstances. It is not apparent that the Applicant placed primacy on making her unfair dismissal application. This is notwithstanding that the Applicant was aware of the end date of the employment relationship given the date of her notice of resignation. Whilst the Applicant referred to her mental health challenges, it is not apparent that she was so incapacitated that she was incapable of seeking out alternate employment. Given exceptional circumstances have not been demonstrated, it is unnecessary to consider whether it is fair and equitable to grant the extension.

• [36] The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act. As noted, the application for an unfair dismissal remedy is therefore dismissed.

[1] Coles Supply Chain v Milford (2020) FCR 591, 604 [59], 609-10 [86].

[2] [2025] FWCFB 173 [72].

[3] PR792763.

[4] [2011] FWAFB 975, [13].

[6] [2018] FWCFB 901, [38] ('Stogiannidis') (emphasis in original).

[7] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9].

[8] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

[10] Long v Keolis Downer [2018] FWCFB 4109, [40].

[11] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12].

[12] [2015] FWCFB 3435.

[14] [2020] FWCFB 3523 at [8], [37]-[39]

[15] [2024] FWC 884, [19].

[16] [2015] FWCFB 287, [15].

[17] See Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB 5645, [15].

[18] (1997) 140 IR 1.

[20] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000), [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

[21] [2015] FWC 8885, [29].

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