s.394 - Application for unfair dismissal remedy

The Walter and Eliza Hall Institute of Medical Research

Application for an unfair dismissal remedy - whether application was made out of time - extension of time - whether exceptional circumstances exist - application dismissed

• [1] Miss Edwards has made an application under s 394 of the Fair Work Act 2009 (the Act) to the Commission on the basis that she was unfairly dismissed by The Walter and Eliza Hall Institute of Medical Research (WEHI) on Friday 14 March 2025.

• [2] The application and response specify the date that the dismissal took effect was Friday 14 March 2025 and that Miss Edwards was notified of the dismissal on the same day.

• [3] Section 394 (2) of the Act requires that an application is made within 21 days after the dismissal took effect, or within such further period as the Commission allows.

• [4] Due to the wording in s 394 (2) of the Act, the counting of the 21 days commences from the day after the dismissal took effect.[1] In Miss Edwards' case, Saturday 15 March 2025.

• [5] A mathematical counting of 21 days from Saturday 15 March is Friday 4 April 2025, so the application ought to have been made by midnight on Friday 4 April 2025 in order to be made in time.[2] It is useful here to be clear that the Act requires the application to be made within 21 days, not 3 weeks.

• [6] Miss Edwards made her application on Monday 7 April 2025 and it was therefore made out of time.

• [7] A Directions Hearing was held on 23 April 2025 where Miss Edwards contended that the application was filed within time. I invited Miss Edwards to provide submissions regarding the basis for her assertion but no further information was put to me.

• [8] It was communicated to the parties at the Directions Hearing that the application would be listed on 20 May 2025 for hearing on the preliminary issue of the timing of the application and that materials were required to be provided prior to the hearing in accordance with the directions.

• [9] Written directions were issued by my Chambers on the same day confirming the hearing date of 20 May 2025 and requiring the parties to file materials. Miss Edwards did not file any materials as directed and made no further attempts to communicate with the Commission. On the basis that Miss Edwards had not filed any materials, the Respondent advised the Commission that it did not intend to file any either.

• [10] Miss Edwards failed to attend the Hearing on 20 May 2025 even after Chambers' attempts to make contact with her by both phone and email. Messages were left with Miss Edwards at the commencement time of the Hearing asking her to contact the Commission.

• [11] I am satisfied that Miss Edwards was given proper notice and had an opportunity to present her case.

• [12] Section 600 of the Act states,

Determining matters in the absence of a person

The FWC may determine a matter before it in the absence of a person who has been required to attend before it.

• [13] Approximately twenty minutes after the Hearing was due to commence, I proceeded to determine the matter before me in the absence of Miss Edwards, who was required to attend the Hearing, consistent with s 600 of the Act.

• [14] While Ms Edwards did not request an extension of time, for completeness, I considered whether exceptional circumstances existed having regard to the factors set out in s 394 (3), which provides,

(3) 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.

• [15] If exceptional circumstances exist, the Commission may exercise a discretion to extend the timeframe for making the application.

• [16] I determined based on the information available to me that I could not be satisfied that exceptional circumstances existed in this matter and therefore no valid application had been made. Accordingly, the application was dismissed.

• [17] As I indicated, I now briefly set out my reasons for the decision including the considerations in s 394 (3) of the Act.

• [18] No reasons have been provided for the delay. This weighs against a finding that exceptional circumstances exist.

Whether Miss Edwards first became aware of the dismissal after it had taken effect

• [19] It is uncontested that Miss Edwards was made aware of the dismissal at the time it took effect and therefore had the benefit of the full 21-day time period to file the application. This consideration does not weigh in favour of a finding that exceptional circumstances exist.

Any action taken by Miss Edwards to dispute the dismissal

• [20] There is no evidence of any action being taken to dispute the dismissal besides the filing of the unfair dismissal application. This weighs against a finding that exceptional circumstances exist.

Prejudice to WEHI (including prejudice caused by the delay)

• [21] The Respondent did not assert that they would be prejudiced by the delay and therefore I find this a neutral consideration.

• [22] I have considered the information in the application and response, but with the limited information before me, it is difficult to express even a provisional view on the merits of the unfair dismissal. Accordingly, I find this a neutral consideration.

Fairness between Miss Edwards and other persons in a similar position

• [23] No evidence or submissions were put to me for consideration regarding this factor and I find this a neutral consideration.

• [24] Taking into consideration the factors that I am required to under s 394 (3) of the Fair Work Act and all the matters raised by the parties, including the information provided in the application and response, I am not satisfied that exceptional circumstances exist, so I am unable to extend the time for the application to be made. Therefore, a valid application has not been made and the application is dismissed.

• [25] An order giving effect to this decision will be issued in conjunction with it's publication.[3]

M Zanon for The Walter and Eliza Hall Institute of Medical Research.

[1] Acts Interpretation Act 1901 (Cth) s 36(1).

[3] PR787610.

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