s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objections; no termination of employment at the initiative of the employer, the application being filed outside the 21 day time period - extension of time not granted and no termination at initiative of employer

• [1] Ms Kim Lohr (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 Lohr alleged that she had been unfairly dismissed from her employment as a casual rescue paramedic with ER24 Australia Pty Ltd ('ER24'/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.

• [3] The Respondent refuted that the Applicant had been dismissed. Section 394(1) provides that a person who has been dismissed may make an unfair dismissal application to the Commission. Section 386 provides the definition for when a person has been dismissed, including if it is argued that the resignation was forced:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."

• [4] Section 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 unfair dismissal application was lodged on 11 December 2024. The Applicant provided the dismissal date on her application to the Commission as 19 November 2024, this date would mean that her application was lodged one day outside the 21 day period. Alternatively, the date of 15 November 2024 was raised as the end of the employment, being the day that the Applicant was informed of the loss of existing shifts (further details in relation to this are provided below). On either of these dates the Respondent stated that the application would be filed outside the 21-day period by 1 day calculating from 19 November 2024 or 5 days from 15 November 2024.

• [5] 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.

• [6] Section 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."

• [7] 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]

• [8] The jurisdictional objections were heard before the Commission (as currently constituted) on 17 March 2025.

• [9] Ms Lohr was self-represented. Directions were set prior to the jurisdictional hearing for the filing of submissions on legal representation of the Respondent. After consideration of the legal representation submissions, ER24 Australia Pty Ltd was granted permission (pursuant to s596(2)(a)) of the Act) to be represented by Mr Dan Chen, solicitor of NB Employment Law. Permission was granted given the complexity of the matter and to enable the Respondent's legal representative to contribute to the efficient and effective hearing of the matter.

• [10] At the jurisdictional hearing, witness evidence was provided by the Respondent's witnesses; Mr Jason Scott (Logistics Manager) and Mr Tommy Wicht (Director). Further, Mr Scott provided a witness statement and Mr Wicht provided two witness statements; these were all tendered during the hearing and the Applicant asked questions of the witnesses.

• [11] Ms Lohr started her employment with the Respondent in early January 2024 on a casual basis. She was employed as a rescue paramedic. Ms Lohr worked at the Poitrel mine during her employment with the Respondent; on a seven days on and seven days off roster. Poitrel mine is owned and operated by Stanmore Resources. Ms Lohr provided that after her initial clear communications to Mr Scott on engagement, regarding her seeking a full-time position at one location with long-term stability, she stated that Mr Scott explicitly confirmed that she would not be moved for operational reasons and that the position would be ongoing.

• [12] Mr Scott gave evidence that as part of his role he undertook workplace planning as a result of liaising with clients regarding their needs. Accordingly, he stated he was regularly involved when mining contracts commence or are closed out and he can work on alternate locations where staff members can be placed. Further, Mr Scott gave evidence that staff members are usually willing to be inducted at multiple mine sites to undertake extra overtime if available or to have additional employment options and variety in their work. He stated having employees inducted at multiple sites makes workforce planning much easier. However, he said the Applicant was the rare exception and seemed to only want to work at the Poitrel Mine.

• [13] In March 2024, the Respondent provided that the Applicant had made a request to be converted to full-time employment, which was offered to her. However, this full-time offer was declined by the Applicant at that time as converting would decrease the amount she was earning, and therefore she remained employed as a casual.

• [14] In June 2024, the Respondent was told that Stanmore Resources intended to cease operations at Millenium mine over a gradual basis. As a result, full-time paramedics were transferred by the Respondent to Poitrel mine from Millenium mine. The Applicant's employment was not affected as coverage was still required at both mine sites. In September 2024, Stanmore Resources told the Respondent that the need for emergency paramedic and rescue services would be decided month-to-month. In late October or early November 2024, it was communicated to the Respondent by Stanmore Resources that it no longer required the Respondent's services. As a result, Mr Scott provided evidence that he began to look at relocating staff members with the necessary focus on ensuring the permanent staff members were prioritised.

• [15] On 15 November 2024, the Respondent informed the Applicant that they could not maintain her existing shifts, as they were obligated to maintain the hours of the full-time employees. Ms Lohr was the only casual staff member at Poitrel. These full-time employees were redeployed to Poitrel, and the Applicant was advised they were utilised to cover her shifts. The Respondent explained that this decision was due to commercial reasons as the Respondent was required to continue to pay the full-time employees even if they were not working, but that this obligation was not applicable to her casual employment.

• [16] The Respondent submitted that the Applicant was offered other employment options, which they considered to be comparable work. Mr Scott stated that he had a phone call with Ms Lohr on 15 November 2024. He stated that an email dated 15 November 2024, was sent by him to Ms Lohr, reflecting the main points as discussed on the phone call. The email, as set out below, was attached to Mr Scott's statement[3] tendered during the hearing:

"As per my phone call today and due to the decrease numbers for Stanmore at Poitrel and Millennium sites, ER24 has reallocated our full-time employees to cover the permanent lines at Poitrel. This in turn has made the line you have been working on at Poitrel not available moving forward. As per my suggestion if you were available to change lines to work the other side of the roster and commence on Wednesday the 27th November I could have allocated you these shifts.

I understand with the short notice that you have scheduled in events on this side of the roster and are unable to move or change lines. I also offered if you were interested in getting multiply inducted on other sites and this would involve working on multiple sites, but this was not your preferred option.

Due to no other options next week, we do not have any further work at this stage at Poitrel as this is the only site you are inducted at but if a shortfall does arrive, we are more than happy to engage to see if you are available for any work on this side of the roster.

Again, thanks for your work at Poitrel and if your situation changes please let us know."

• [17] The Respondent submitted that the following employment options were provided to the Applicant at the time of the phone call:

"(a) covering an alternate shift at the Poitrel mine, which was vacant at the time due to the staff member being on extended leave for three (3) to four (4) months. This meant the Applicant would be working on the week she usually had off, and having a break on the week she would usually be working (i.e. the reverse of her roster pattern);

(b) redeploying to the Coppabella mine, which shared the same accommodation arrangements as the Poitrel mine and therefore would have minimised disruption;

(c) redeploying to other mining operations within the Isaac Region, such as the Burton or Middlemount mines, which would have required the Applicant to complete the relevant induction processes for these mines; or

(d) keeping the Applicant employed at the Poitrel mine on her existing roster, but only to cover off on any contingencies such as the permanent staff members being unavailable."

• [18] In contrast, the Applicant stated that she was not offered positions at other sites, which included Coppabella, Burton or Middlemount, and she questioned why leading up to this point she had not been inducted at multiple sites and that the only option she was given was to work at Poitrel with a change of work swing. She stated that she would have been available to work and be inducted at other sites if notified in advance. The Respondent submitted that this was inconsistent with the Applicant's previously stated position of wanting to work at one site.

• [19] On 18 November 2024, the Applicant replied to Mr Scott via email with the following:[4]

"Thanks for your call. Thinking about it, I can change swings but like I explained not with 3-4 days notice. I will be able to do it after the Christmas period but would also like to sign the full time contract so this doesn't happen again if the offer is still available."

• [20] The Applicant stated that this email set out that she would accept one of the Respondent's offers after Christmas. However, she stated that given that she did not receive any response from the Respondent after this email and that she heard that Mr Scott was at Poitrel mine telling people that the Applicant had clinical issues, she understood this was why she was no longer at the mine. Mr Scott denied this.

• [21] Mr Scott stated he considered Ms Lohr's email dated 18 November 2024, meant that she would revert back to them regarding her availability after Christmas and therefore they did not provide a response to her. Mr Scott also stated he did not consider that the Applicant had accepted an offer of employment as the Applicant had included a condition of a full-time contract on the offer of employment. He stated that given that he had explained in the 15 November 2024 phone call to the Applicant that they had been obligated to maintain the hours of the full-time staff and employ them at the Poitrel mine, that the Applicant was aware that there were no full-time vacancies at the mine. Accordingly, Mr Scott did not interpret the email as an acceptance of the offer of employment that has been put to the Applicant. He conceded in response to questioning by the Applicant, that he should have sent a response to her email. However, it was also noted that the Applicant did not follow up her email, query the work options, provide any further response to the Employer, or contact the Employer after Christmas.

• [22] Mr Scott further stated on behalf of the Employer that he provided no further inquiry to the Applicant as the Applicant then lodged her unfair dismissal application with the Commission on 11 December 2024.

• [23] On 23 December 2024, the Respondent acted on what they considered to be a request from the Applicant to return the Applicant's personal belongings from Poitrel mine to her. The Applicant denied that she had requested her personal belongings to be sent to her.

• [24] On 15 January 2025, a Statement of Service was provided to the Applicant after the Applicant made a request for this.

Consideration of No dismissal at the Employer's initiative

• [25] Termination at the initiative of the Employer, occurs when the termination is caused by an Employer[5] such that, (1) the actions of the Employer 'directly and consequentially' results in the termination and (2) that if the Employer did not take this action, then the Employee's employment would have continued.[6] In relation to the first point, while this is an important consideration, it is not the only one[7] and all the circumstances of the matter need to be examined.[8] This examination includes a consideration of the conduct of both the Employer and Employee.[9] Further, in relation to the second point, the Employer's action either needs to intend to bring the employment relationship to an end or has that probable result.[10]

• [26] The potential dates of dismissal in this matter centre around the phone call and the emails sent by the parties on the 15 and 18 November 2024. The email that was sent by Mr Scott on 15 November 2024, which was filed by both parties, included reference to inductions to other sites and that this would involve working on multiple sites. In line with the Applicant's previous confirmation to Mr Scott at the commencement of her engagement with the Respondent, the Applicant had made it clear that she did not wish to move between sites. Further, her email of 18 November 2024 had confirmed that she could commence work after Christmas but, with the condition of it being full-time work in circumstances where she was aware the Employer had redeployed the full-time Employees to the Poitrel site absorbing the casual hours. Accordingly, her statement that she would undertake a full-time contract after the Christmas period did not accord with those circumstances or the actual job options offered.

• [27] Mr Scott in providing his evidence did concede that he could have gone back to the Applicant in response to her email dated 18 November 2024, to specify that the situation of the job offers had not changed. Mr Scott also gave evidence that he made it clear to the Applicant that there were no full-time positions available at Poitrel at that time. I find that the Respondent set out other reasonable work options to the Applicant. While it is acknowledged that Mr Scott could have responded to the Applicant's 18 November 2024 email, in the circumstances where the Applicant's last communication referred to not being available until after the Christmas break, and she sought a full time position (which she had already been advised was not available), it was not unreasonable for him to wait to hear from her until after the Christmas period. I consider that if Ms Lohr had accepted any of the reasonably comparable work offers made in November 2024, her casual employment would have continued. Therefore, the Employer did not in these circumstances initiate a dismissal, as they had made several alternative employment offers which the Applicant did not properly engage with.

• [28] The Respondent also provided a jurisdictional objection that the Applicant's application was lodged out of time. Accordingly this is addressed below. If I had found that the Applicant was dismissed on one of the dates of 15 or 19 November 2024, then an extension of time would have needed to be granted to accept the application. If I am incorrect with regard to the finding of there being no termination of employment, I assess the extension of time. 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."

• [29] 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.[11] 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.

• [30] 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.[12] 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.[13]

• [31] In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (Stogiannidis),[14] a Full Bench of the Fair Work Commission provided clarification regarding the assessment of exceptional circumstances.

• [32] The Full Bench in Stogiannidis said that:[15]

"[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'.

[38] 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.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time 'needs to provide a credible explanation for the entire period', it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.

[41] The 'reason for the delay' is a factor that the Commission must take into account in deciding whether there are exceptional circumstances. A distinction may be drawn between the matters relevant to the determination of whether the circumstances can be properly characterised as exceptional (i.e. s.366(2)(a)-(e)) and the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.

[44] As mentioned earlier, the 'reasons for the delay' is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight."

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

• [34] The Respondent denied that a termination at the initiative of the employer occurred however they have submitted if it is considered that the employment relationship ended on the day that the Applicant had lost her existing shifts on 15 November 2024, for the application to have been made within 21 days, it needed to have been made by midnight on 6 December 2024. The period considered commenced after 15 November 2024 until 11 December 2024 when the Applicant filed her application. Although circumstances arising prior to that delay may be relevant to the reason for the delay.[16]

• [35] 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.[17]

• [36] The Act does not specify what the reason for the delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. 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.[18]

• [37] Ms Lohr provided several reasons for the delay in lodging her application. These included that the dismissal date was unclear as it was asserted that the Respondent's behaviour was unclear and contradictory. Further, it was submitted there was a delay because the Respondent did not respond to the Applicant's email of 18 November 2024 accordingly, the Applicant stated that she was unsure of the Respondent's intentions with her employment.

• [38] Ms Lohr relied on the return of her luggage and the provision by the Respondent of the Statement of Service to her, as being relevant to her considering there had been a finalisation of the employment relationship. However, given that these matters occurred after Ms Lohr lodged the unfair dismissal application on 11 December 2024, they cannot be taken to support an argument that the Applicant interpreted receipt of these as being commensurate to the termination of her employment.

• [39] The Respondent submitted that the email from Mr Scott on 15 November 2024 referenced that the Applicant would not be working her regular shifts but was provided with alternative work options. Additionally, the Respondent conceded that as much as the Respondent can be criticised for not engaging with the Applicant after her email of 18 November 2024, the same can be said of the Applicant as no steps were taken by the Applicant to dispute 'the dismissal'.

• [40] The Applicant argued that she was waiting for a response from the employer in relation to her 18 November 2024 email but did not explain sufficiently why she did not contact the Employer. The Applicant has not provided a reasonable or acceptable explanation for the delay in lodging her unfair dismissal application out of time. The absence of an acceptable explanation as to why Ms Lohr lodged her application out of time weighs against the granting of an extension of time. In addition, the circumstances are not commensurate with exceptional circumstances. These matters weigh against a finding for the Applicant on this criteria.

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

• [41] It is a necessary jurisdictional finding in relation to the Commission accepting an unfair dismissal application that there be a termination at the initiative of the Employer. The Respondent denied that there was a termination at the initiative of the Employer. Whilst the Applicant has filed an unfair dismissal application, she submitted that there was a not a clear dismissal date.

• [42] The Respondent submitted that Ms Lohr, from at least the 15 November 2024, was alert to the fact that there was no further work unless one of the alternative work options as stated to her on 15 November 2024. It was explained to the Applicant that the casual hours were required for the full-time employees.

• [43] Whilst the Applicant argued that the employment situation lacked clarity, it was clear that the Respondent had offered her clear ongoing options for casual employment, which the Applicant failed to accept. There was no dismissal, in this matter and there was no delay in the Applicant being made aware of the mine closure and she was offered other shifts. I find this weighs against the Applicant, when it was open to her to clarify the employment situation, and the alternative employment.

• [44] In regard to this sub-provision, the Applicant raised that the lack of communication from the Respondent after her 18 November 2024 email and that this contributed to the uncertainty regarding the employment situation.

• [45] However, the Respondent submitted that Ms Lohr did not assert that she was dismissed prior to filing the present application.

• [46] The Applicant did not take any action to clarify the work situation at all. I find against the Applicant in this regard as she did not take action to clarify the employment options or to dispute with the Employer what she regarded as the dismissal prior to filing the application.

• [47] The Applicant submitted that an extension would not unduly prejudice the Employer as any prejudice would be a direct result of the Respondent's behaviour. The Respondent conceded that there was minimum prejudice to the Respondent resulting from the delay but provided that the absence of such, does not weigh in favour of granting the extension of time. I consider this to be a neutral consideration.

• [48] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the application are based on the limited filed materials on the merits; these centred around the actions of the parties after 15 November 2024. I have considered the submissions and evidence of the parties.

• [49] The Applicant in relation to the merits reiterated her allegations about the confusion in relation to the dismissal date and the Respondent's inconsistent communications. The Respondent submitted that the merits were a neutral consideration, noting that the Applicant had to firstly overcome the two separate jurisdictional objections. On the materials filed on the merits of the matter predominantly relate to the conduct of the parties relevant to the jurisdictional matters, and that conduct is considered in the jurisdictional tests. This is not a matter which presents a separate detailed matrix with regard to the merits of the prior employment. Accordingly, I consider this matter to be neutral in the assessment.

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

• [50] There was no evidence of employees in a like position as Mr Scott[19] stated that Ms Lohr 'was the only casual staff member put on at the Poitrel mine'.

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

• [52] Having considered if the Applicant's employment ended by dismissal, I am not satisfied that that Applicant's employment ended by termination at the initiative of the Respondent as per the reasons set out above.

• [53] Further, having considered all of the factors set out in s 394(3), and all of the matters raised by Ms Lohr, I am not satisfied that the requisite 'exceptional circumstances' exist. There is not an exceptional or reasonable explanation for the delay in filing the application even if it was found that there was a dismissal.

• [54] Accordingly, the application made pursuant to s.394 is dismissed as it is found that both jurisdictional objections are upheld. There was no termination at the initiative of the Employer in accordance with s.386(1)(a) or (b). In the alternative, it is also determined that the application was filed out of time pursuant to s.394(2) and no extension of time is granted after considering s.394(3). I Order accordingly.

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

[5] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162, [75].

[6] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645, 205.

[7] Pawel v Advanced Precast Pty Ltd Print S5904 AIRCFB.

[8] O'Meara v Stanley Works Pty Ltd PR973462 AIRCFB, [23].

[9] Hill v Pathways Australia Pty Ltd T/A Pathways Australia [2017] FWC 5901, [48].

[10] Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769, [24].

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

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

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

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

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

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