Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether to extend time - application dismissed.

• [1] This decision concerns an application by Lucia Rizza for an extension of time pursuant to s 394(3) of the Fair Work Act 2009 (Act).

• [2] Ms Rizza made an application for an unfair dismissal remedy under s 394 of the Act on 23 July 2025. Section 394(2) of the Act requires 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 under s 394(3). It is not in dispute that Ms Rizza's application was filed outside the 21-day timeframe for lodgement of the application.[1] Ms Rizza seeks that the Commission allow a further period of time for the application to be made. The respondent, Coynes Freight Management Group Pty Ltd, opposes the grant of an extension of time.

• [3] For the reasons that follow, I am not satisfied that there are exceptional circumstances. Accordingly, the discretion to extend the time in which the application may be made is not enlivened.

• [4] Ms Rizza commenced employment with the respondent on 1 March 2016.[2] It is not in dispute that Ms Rizza's employment was terminated with effect on 24 June 2025.[3] The respondent's position is that Ms Rizza's employment ended by reason of her role of Payroll Clerk being made redundant. A termination letter dated 24 June 2025 relevantly explained the reason for termination as follows:[4]

"...As a result of the acquisition and subsequent integration of Coynes Freight Management Group into the Butler Freight Services business the position of Payroll Clerk is no longer required.

Regrettably this means that your employment will terminate.

This decision is not a reflection of your performance.

We have reviewed our business to find you an alternative position within the enterprise however we do not have any suitable vacancies currently.

Your employment will end today, and you will not be required to work out your notice period.

Based on your length of service (9 years) and in accordance with the National Employment Standards you will be paid five (5) weeks' pay in lieu of notice.

Since your employment is ending due to the role being redundant and in accordance with the National Employment Standards you are entitled to sixteen (16) weeks redundancy pay..."

• [5] The 21-day statutory timeframe for filing Ms Rizza's application for an unfair dismissal remedy expired at midnight on 15 July 2025. Ms Rizza's application for an unfair dismissal remedy was filed with the Commission on 23 July 2025. The application was therefore lodged 8 days outside of the statutory timeframe.

• [6] The Commission has the power pursuant to s 394(3) of the Act 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 by a Full Bench in Nulty v Blue Star Group Pty Ltd.[5] 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. 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.[6]

• [7] Under s 394(3) of the Act, the Commission may allow a further period of time for an application under s 394 to be made, if it 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.

• [8] I consider each of these matters below.

• [9] The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable or credible,[7] or reasonable[8] 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.[9]

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

• [11] In the Form F2 application, Ms Rizza states that her application for an unfair dismissal remedy was filed outside the 21-day time limit for the following reason:

"I wasn't aware of the time limit for lodging this form. I was too busy with lodging for my age pension collection all needed requirements to lodge the application. I was so depressed and confused for my dismissal and i didn't know what to do."

• [12] Ms Rizza explained that her reference to depression in her Form F2 application was not medically diagnosed depression. Rather, Ms Rizza intended to reflect her feelings of sadness associated with the loss of the job she had held for nine years.

• [13] In support of the reasons provided for the delay in her Form F2 application, Ms Rizza produced to the Commission a letter from Centrelink addressed to her, dated 4 July.[12] The letter stated that Centrelink was seeking more information about Ms Rizza's claim for Age Pension. Further, Ms Rizza relies upon an email sent to her and other employees by the Payroll Administrator for Butler Freight Services (the business into which the respondent was acquired and integrated) on 24 June 2025. This email indicated that upon transfer of employment, payroll would occur on a monthly basis.[13] Ms Rizza submits that this email demonstrates that the respondent had not made any prior decision about her redundancy and that it was a sudden and on the spot decision. This latter document does not provide any information relevant to the reasons Ms Rizza relies upon to explain the delay in filing her application in the Commission, although I have taken it into account for contextual purposes and in relation to the matters discussed in relation to s 394(3)(e) later in this decision.

• [14] Ms Rizza gave evidence that following her dismissal she spent time updating her resume to assist her future career prospects. Later, when she had "a little bit more time," Ms Rizza "started making enquiries to a lawyer" regarding an unfair dismissal application. Ms Rizza explained that she sent "all the evidence and documents" to a lawyer on 23 July 2025 and on this day, the lawyer advised her that he could not lodge an application on her behalf because "the date was exceeding 21 days" from the dismissal. Ms Rizza said that the lawyer advised her to lodge the application directly with the Commission herself, which Ms Rizza did that day.

• [15] I acknowledge Ms Rizza's feelings of sadness following the termination of her employment and her evidence that this was not a medically diagnosed health condition. I have taken into consideration that Ms Rizza occupied herself initially with preparing her resume and filing for an Age Pension (which is supported by the correspondence from Centrelink). However, I do not accept that these steps provide an acceptable or reasonable explanation for the delay. The letter from Centrelink to Ms Rizza is dated 4 July 2025, which is within the 21-day statutory timeframe. Ms Rizza has not provided any reasons to explain why she could not continue to engage with Centrelink and prepare her resume while also preparing her unfair dismissal application for filing on time in the Commission. While I accept Ms Rizza's submission that she is not familiar with the Commission's processes and was not aware of the 21-day statutory timeframe for filing unfair dismissal applications, such unfamiliarity is not exceptional. Ignorance of one's rights will not usually provide an acceptable reason for the delay.[14]

• [16] I have also taken into account the fact that Ms Rizza took steps to meet with a lawyer to enquire about making an unfair dismissal application. However, on Ms Rizza's evidence, she did not do this until 23 July 2025, after the 21-day timeframe had already lapsed. While I acknowledge that Ms Rizza lodged her application on the same day that the lawyer advised her to do so, there is no material before the Commission which explains why Ms Rizza could not have made these enquiries with a lawyer at any earlier time. I note that the Commission's website provides a range of information addressing the lodgment of applications in the Commission, including in relation to the timeframes within which to lodge them.

• [17] For the reasons given, I do not find that any of the matters relied upon by Ms Rizza as reasons for the delay, individually or collectively, provide an acceptable or reasonable or credible explanation for the delay. This weighs against the grant of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect: s 394(3)(b)

[21] It is not in dispute that Ms Rizza became aware of his dismissal on 24 June 2025, being the date that it took effect. Ms Rizza therefore had 21 days to lodge her application for an unfair dismissal remedy from this date. This weighs against the grant of an extension.

Action taken by the person to dispute the dismissal: s 394(3)(c)

[24] Ms Rizza gave evidence at the hearing that she disputed the dismissal by lodging this application in the Commission. There are no other steps taken that could be described as other action to dispute the dismissal. As such, the respondent was not on notice that the dismissal was actively contested by Ms Rizza.[15] This consideration therefore weighs against the grant of an extension.

[26] It is not contended that any prejudice to the respondent would arise if an extension of time was granted. However, I do not consider the mere absence of prejudice to be a factor that would tell in favour of the grant of an extension of time. I consider this to be a neutral consideration.

• [18] For the consideration in s 394(3)(e) to weigh in favour of an extension of time, it must be shown that there is some merit in the substantive application.[16] However, an application to extend time is essentially interlocutory in nature and does not enable a fulsome examination of the substantive merits of Ms Rizza's unfair dismissal application. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[17]

• [19] In her unfair dismissal application, Ms Rizza contends that she was advised that employees would not be worse off because of the acquisition of the respondent's business by the new owner. However, Ms Rizza says she was offered a part time contract of employment by the new owner, in circumstances where she was employed on a full-time basis with the respondent. Ms Rizza submits that she spoke with the respondent about this issue and was subsequently presented with the dismissal letter. Ms Rizza says that the circumstances shocked her because she was a dedicated employee.[18] She rejects that her dismissal was a genuine redundancy.

• [20] The respondent submits that the dismissal was a case of genuine redundancy. It says that it ran a weekly, outsourced payroll service and Ms Rizza's main job function was to collate timesheets and enter limited data. The external payroll provider otherwise processed and managed the payroll function. In connection with the acquisition and integration of the respondent into the enterprise of Butler Freight Services, the new employer already employs a payroll clerk to perform payroll duties, pursuant to a highly automated and paperless system which requires no manual input. Accordingly, the respondent submits that the role that was being undertaken by Ms Rizza was no longer required, and no suitable redeployment opportunities were identified for Ms Rizza.

• [21] There is otherwise a dispute between the parties about (a) whether Ms Rizza's role with the respondent was full-time (as Ms Rizza contends) or whether she was employed on a part time basis performing 35 hours per week, which is the position of the respondent; and (b) whether Ms Rizza's workload was noticeably decreasing during the period preceding the transfer.[19]

• [22] The parties hold substantially different views as to the matters that preceded the dismissal. The allegations turn on contested points of fact, which have not been the subject of evidence before me or tested under cross-examination. Accordingly, I am unable to form a concluded view about these matters. I observe that the respondent would need to lead evidence in support of its position that it complied with the requirements of s 389 of the Act in order to support its contention that the dismissal was a genuine redundancy. Ms Rizza would need to lead evidence capable of challenging the respondent's position, including that her role was no longer required to be performed by anyone in light of changes to its operational requirements in light of the acquisition. In the circumstances, I regard the merits of Ms Rizza's substantive unfair dismissal application to be a neutral factor in my assessment of whether to grant an extension of time.

Fairness as between the person and other persons in a similar position: s 394(3)(f)

[32] Applications to extend time generally turn on their own facts. Neither party has brought to my attention any matters of fairness relevant to this consideration. Accordingly, this factor is neutral in my assessment.

[21] The statutory time limit that applies to the exercise of a person's right to bring an unfair dismissal application reflects the parliament's intention that such rights be exercised promptly. The test of exceptional circumstances in s 394(3) of the Act establishes a high hurdle for an applicant for an extension of time.[20] Whether an application is lodged eight days outside the statutory time limit (such as in this case) or more, the Commission must be satisfied that there are exceptional circumstances supporting an extension of time.

[22] In this case, there are no matters that weigh in favour of granting an extension of time. Ms Rizza has not provided an acceptable or reasonable explanation for the delay, nor did she take any action to place the respondent on notice that the dismissal was contested (other than by lodging this application). These matters, together with the consideration in s 394(3)(b), weigh against a further period being granted. The other factors weigh neutrally. Having regard to my consideration of the statutory criteria and the conclusions reached, I am not satisfied that the matters raised amount to exceptional circumstances, either when the various circumstances are considered individually or together.

• [23] As I am not satisfied that there are exceptional circumstances, the power to extend the
• [24] time in which Ms Rizza's application may be made is not enlivened. Ms Rizza's unfair dismissal application is therefore dismissed.

K'O'Connell, with G. Walker, on behalf of the respondent.

[2] Ibid at [1.1]; Form F3 employer response at [1.2]

[3] Form F2 application at [1.3]; Form F3 employer response at [1.4]

[5] [2011] FWAFB 975, 203 IR 1

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

[8] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64 at [16]

[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [39]

[10] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]

[11] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]

[14] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; 203 IR 1 at [14]

[15] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298

[16] Long v Keolis Downer (t/as Yarra Trams) [2018] FWCFB 4109 at [71]

[17] Kyvelos v Champion Socks Pty Ltd [2000] AIRC 540, Print T2421 at [14]

[19] Form F3 employer response at [2.2], [3.1] and [3.2]

[20] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [14] citing Lombardo v Commonwealth [2014] FWCFB 2288 at [21]

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