s.394 - Unfair dismissal

• [1] On 7 August 2025, Ms. Lisa Hall was handed a letter signed by Mr. Tom Spoljaric, the Warehouse and Supply Chain Manager at First Class Hampers Pty Ltd ("First Class"). The letter confirmed her "employment with [First Class] will terminate due to redundancy". It went on:

"Your employment will be terminated effective today. Based on your employment contract, you are entitled to 4 weeks' notice of termination of employment, You are not required to work your notice period and will be paid in lieu of notice. You will be paid in lieu of notice.

You will be paid 7 weeks redundancy pay in accordance with the National Employment Standards. Your employment standards Your employment entitlements, including any outstanding pay and leave will also be paid out."

• [2] At the 7 August meeting where Ms. Hall was given this letter, she was either instructed or requested to work one week of her notice period until 15 August 2025. As it transpired, she did attend work until 15 August 2025.

• [3] After her final day at work, Ms. Hall was provided with an explanation of the elements of her termination pay and an Employment Separation Certificate that contained a series of errors. They mistakenly recorded her termination day as 3 September 2024. She was not paid her termination pay until 8 September 2025.

• [4] On 15 September 2025 at 1:35 PM, Ms. Hall filed an unfair dismissal Form F2 in that form she gives as the date she was told about being dismissed as "07-08-2025" and the date the dismissal took effect as "15 08 2025."

• [5] On 7 August 2025, Ms. Hall was informed in writing she would be terminated that day and that she would be paid four weeks in lieu of notice. In the 7 August meeting, the parties agreed she would work one more week. Her last day at work was 15 August 2024. It follows the date of the termination was on 15 August 2025.

Was the Application made within 21 days after the dismissal took effect?

• [6] The 21-day period does not include the day on which the dismissal took effect.[1]

• [7] Ms. Hall's application was filed at 1:35 PM (AEST) on 15 September 2025. It was made 10 days late. I therefore need to consider whether to make an order to extend the period to make the application.

• [8] I may allow a further period for an unfair dismissal application if I am satisfied there are exceptional circumstances, taking into account:

(b) when Ms. Hall first became aware of the dismissal after it had taken effect.

(c) any action taken by Ms. Hall to dispute the dismissal.

(d) prejudice to First Class (including prejudice caused by the delay).

(f) fairness as between Ms. Hall and other persons in a similar position.

• [9] Each of these matters must be considered in assessing whether there are exceptional circumstances.[2] Exceptional circumstances are to be given their ordinary meaning. That phrase means out of the ordinary course, unusual, special, or uncommon. The circumstances do not need to be unique, unprecedented or very rare.

• [10] I will consider each of the statutory factors below.

• [11] Ms. Hall gave the following reasons for her 10 day delay.

• [12] Ms. Hall claims she was not aware of the 21 day deadline.

• [13] This claim is surprising. Ms. Hall sought advice from the Workplace Advice Service (WAS) and submitted a request for advice form. In response, on 2 September 2025 (on the 18th day after her termination), she received an e-mail from WAS entitled "Thank you for submitting your Workplace Advise Service Request form". That e-mail included the following paragraph:

"Please remember you only have 21 days from the date of your dismissal to lodge an unfair dismissal or a general protections dismissal application. If you need help faster than that, other legal help is available."

• [14] On 5 September 2025, (on the 21st day after her termination), she received an e mail from JobWatch. That e-mail attached JobWatch Fact Sheets. One of those Fact Sheets is headed "Unfair Dismissal (21 days to file a claim)". The first paragraph of that fact sheet is:

"If you have been dismissed and you believe it was unfair, you may have grounds to make an unfair dismissal claim in the Fair Work Commission...If eligible, you have 21 days from the date the dismissal took effect to file your claim."

• [15] Ms. Hall claims she was confused as to her date of termination. She gives the following reasons for this confusion in her submissions:

• Letter of 7 August 2025: On 7 August 2025 Ms. Hall was given a letter headed Notice of Termination - Redundancy" which included the following paragraphs:

"Your employment will be terminated effective today. Based on your employment contract, you are entitled to four weeks' notice of termination of employment. You are not required to work out your notice period and you will be paid in lieu of notice.

You will be paid 7 weeks redundancy pay in accordance with the National Employment Standards. Your employment entitlements including any outstanding pay and leave will also be paid out to you."

• Further week of work until 15 August 2025: There is a conflict of evidence as to whether Ms. Hall was asked or requested to work an additional week until 15 August 2025. It was not contested she worked until 15 August 2025. In a witness statement of Ms. Fiona Robertson, she gave the following account of how this came about:

"...Lisa flagged that she wanted to leave the business on a good note with the team, and she felt her relationship with teammates had been strained during this period. In order to support this, Justin and Tom agreed that they could offer her an opportunity to transition out of the business, and close off any outstanding tasks, with a view to finish the following week. This was offered as an opportunity to assist Lisa with this transition, be part of the team, and eliminate any awkwardness that she had felt over the previous couple of weeks. Lisa agreed to this as she didn't want to exit the business immediately"

• Ms. Hall disputes this account, particularly the claim she had requested to work a further week.

• Employment Separation Certificate: The certificate she received some time later stated the date her employment ceased on "3 September 2025".

• Termination pay was not made until 8 September: In her oral and written submissions, Ms. Hall stated she did not receive her termination pay until 8 September 2025, a number of days after her final day of working.

• [16] Ms. Hall says she received advice from JobWatch on 5 September 2025, after receiving an e-mail from the Fair Work Commission on 4 September 2025 "advising they were too busy to schedule an appointment with me". She states "I lodged my application as soon as I became aware of the process through Job Watch."

• [17] It is common for persons with no legal training to be ignorant of the time limits within the Act. In any event, Ms. Hall was informed of the time limit by WAS in the e-mail dated 2 September 2024, and by JobWatch in one of the Fact Sheets JobWatch had attached to its e mail dated 5 September 2024 This is not an adequate reason to justify the delay.

• [18] On 7 August 2025, Ms. Hall was informed in writing that she would be paid in lieu of notice and her employment was terminated. At her termination meeting she either assented to or requested that her last day of work would be 15 August 2025. She attended work until 15 August 2025.

• [19] Despite the subsequent error ridden correspondence from Accounts, I do not consider it reasonable for Ms. Hall to be confused as to when her employment ended. Her termination letter unequivocally informed her that she would be paid out in lieu of notice. After the parties agreed she would work another week, a reasonable person would be clear that her last day of employment was 15 August 2025.

• [20] The erroneous correspondence from accounts did not lead her to give a different date of termination on her Form F2. She gave the date as 15 August 2025. It follows I do not consider this reason to be an adequate reason for delay.

• [21] It is well settled it is routine for parties to experience delays in obtaining advice on their rights in relation to an unfair dismissal proceeding. There is nothing special about a delay caused by this reason.

• [22] The reasons given by Ms. Hall for the delay do not either individually or collectively, provide adequate reasons to explain the delay. This factor therefore counts against a finding of exceptional circumstances.

WHEN DID MS. HALL FIRST BECOME AWARE OF THE DISMISSAL AFTER IT HAD TAKEN EFFECT?

• [23] Ms. Hall was informed her employment was being terminated on 7 August 2025, a week before the termination of her employment. Ms. Hall had the full benefit of the 21 days in which to file her application. This factor is neutral to a finding of exceptional circumstances.

WHAT ACTION WAS TAKEN BY MS. HALL TO DISPUTE THE DISMISSAL?

• [24] The submissions Ms. Hall made in relation to this factor did not concern action she took to dispute her dismissal with her employer. They dealt with action she took to seek advice in relation to her dismissal.

• [25] The reasoning behind this factor is, despite the failure of the employee to comply with the time limit, the employer is on notice the dismissal is disputed. This factor concerns itself with action taken to dispute the dismissal with the employer.

• [26] Ms. Hall took no steps to dispute her dismissal with her employer between the last day of her employment and the filing of her application. This factor counts against a finding of exceptional circumstances.

WHAT IS THE PREJUDICE TO FIRST CLASS (INCLUDING PREJUDICE CAUSED BY THE DELAY)?

• [27] In its submissions, First Class identifies three prejudices against it. They are:
  • The business has moved on since the finalisation of this redundancy.
  • Recollection of events is more difficult because time has passed between the filing of the application and meetings held prior to July and August 2025
  • Key operational decisions have since been made due to new project cycles and staffing changes.

• [28] The prejudice relevant to this factor is prejudice beyond any disadvantage arising from the application itself. Prejudice arising from First Class "moving on", or from "key operational decisions" having been made would have been experienced by First Class even if Ms. Hall had filed her application in time. I do not consider the prejudice identified by First Class is significant enough to count against Ms. Hall in an assessment of exceptional circumstances. The identified prejudices derive from the application being made rather than the fact the application had been made out of time.

• [29] An argument that a ten day delay could lead to a dimmed recollection of events is not credible. The dimmed recollection did not prevent participants in the relevant meetings making comprehensive witness statements in this proceeding.

• [30] There is no significant prejudice to First Class. A lack of prejudice does not generally count in favour of a finding of exceptional circumstances.[3] This factor is therefore neutral to a consideration of exceptional circumstances.

• [31] Ms. Hall argues her case has strong merits. She argues her redundancy lacked genuineness because First Class did not deploy her to available positions where it would have been reasonable to do so. In her written submissions, she states:

"I was not provided with any record or summary of the consultation meeting held on 6 August 2025, nor were any redeployment opportunities meaningfully explored or discussed.

At the time my position was made redundant, there was an active vacancy for a Store Person role, which had been advertised just one week prior to the redundancy letter dated 4 August 2025.

During the meeting on 6 August, I raised this vacancy. Although I was handed a copy of the job description, the response I received was, "I didn't think you were interested." This was despite the fact that I had previously performed the duties of a Store Person.

Additionally, during my notice period, another position - Hamper Assembly and Dispatch - was advertised on Seek. This role, which I had also previously performed ...was not presented to me as a redeployment opportunity.

Throughout my employment, I was a committed and well-regarded team member. I believe more could have been done to consider suitable redeployment options before proceeding with my termination."

• [32] First Class argues Ms. Hall's claim that her case has strong merits "lacks substance". Its submissions on merits are:
  • Ms. Hall's position was genuinely redundant.
  • The business underwent an operational review and restructured the warehouse supervisory function and consultation occurred with formal correspondence
  • Ms. Hall voluntarily declined to continue in the Warehouse Supervisor position, and no other suitable roles were available.
  • Ms. Hall alleges that on taking up her supervisor position she was given a "verbal promise" that she could return to her previous position. This claim is denied by First Class based on the evidence of its witness and documents it filed
  • Ms. Hall claim she could have been deployed into the Warehouse Store man and casual Christmas roles is mistaken. Those positions were "materially different in status, duties, and timing, and therefore did not constitute suitable redeployment options."
  • The Christmas roles Ms. Hall referred to "were advertised in September, following the termination of employment and only after business decisions were made to hire these roles once customer orders were confirmed."

• [33] There is a conflict of evidence as to whether or not it was reasonable to deploy Ms. Hall rather than make her redundant. There is also a conflict of evidence as to whether she was "promised" that she could return to her previous role.

• [34] Without an opportunity to hear the sworn evidence from relevant witnesses, I cannot make a determination of the merits. The merits turn on contested facts, which require a full hearing. It is not appropriate for the Commission to resolve contested facts in an extension of time application. This factor is therefore neutral in a consideration of exceptional circumstances.

FAIRNESS AS BETWEEN MS. HALL AND OTHER PERSONS IN A SIMILAR POSITION

• [35] Ms. Hall made no submissions on this matter. First Class made these submissions:
  • Many employees in similar situations file within the statutory timeframe despite experiencing distress or uncertainty.
  • Granting an extension in this case would be unfair to those who comply with the law and would dilute the significance of the 21-day limit.
• [36] This factor was considered by Deputy President Gostencnik in Morphett v. Pearcedale Egg Farm:[4]

"Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other cases in a similar position, and that consideration may relate to matters currently before the Commission or matters which have been previously decided by the Commission.

• [37] The submissions of First Class are at a level of banal generality. The submissions do not explain how the position of the "many employees" who make applications were in a similar position to Ms. Hall. Nothing in the submissions of First Class are compelling. This factor is neutral to consideration of exceptional circumstances.

IS THE COMMISSION SATISFIED THAT THERE ARE EXCEPTIONAL CIRCUMSTANCES, TAKING INTO ACCOUNT THE MATTERS ABOVE?

• [38] There are two factors against a finding of exceptional circumstances for the purposes of s 394(3):
  • Reasons for Delay: Ms. Hall's reasons for delay do not provide an adequate explanation for the delay. Ignorance of the law is routine and not exceptional. Ms. Hall's alleged confusion as to her termination date was not reasonable in the circumstances. The delay in her ability to obtain legal advice is common rather than special. It follows her reasons for the delay are not either individually or collectively adequate reasons for the delay. This factor counts against an extension of time under s 394(3)(a).
  • Action to dispute the dismissal: Ms. Hall took no action to dispute her dismissal with her employer prior to filing her application. This factor counts against an extension of time being granted under s 394(3)(c).

• [39] The considerations in s 394(3)(b), (d), (e) and (f) are neutral factors in an assessment of exceptional circumstances for the purposes of s 394(3):
  • Notification of the Dismissal: Ms. Hall was given notice of her dismissal on 7 August 2024. She had the benefit of the full 21-day period to lodge her unfair dismissal application.
  • Prejudice: No significant prejudice was suffered by First Class by reason of the delay.
  • Merits: There is a conflict of evidence as to whether or not the efforts undertaken by First Class to deploy Ms. Hall were reasonable. I am not able to assess the merits as a factor in determining whether I should grant an extension of time.
  • Fairness between persons: No compelling submissions were made on fairness arising between Ms. Hall and other persons in a similar position.

• [40] I conclude the reasons for the delay under s 394(3)(a), and Ms. Hall's failure to dispute her dismissal under 394(3)(c), count against an extension of time granted. All the other factors in s 394(3)(b), (d), (e) and (f) are neutral.

• [41] Two factors count against an extension of time being granted. The rest are neutral considerations. Therefore, on balance, considering all the factors under s 394 (3), I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.[5]

[1] Singh v BSG Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

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

[3] Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890, [21]

[4] [2015] FWC 8885 at [29]

[5] PR792870.

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