s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made outside of statutory timeframe - exceptional circumstances - extension of time granted

• [1] Mr Michael Adams (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in stating that he was unfairly dismissed by The Trustee for Syndicate Communications Trust (the Respondent).

• [2] On the Form F2, the Applicant states that he commenced his employment with the Respondent on 29 March 2016.

• [3] The Applicant states that he was notified of his dismissal on 15 November 2024. The Applicant was given 4 weeks' notice, with the termination stated to be effective from 13 December 2024.[1]

• [4] The Applicant lodged his application on 21 January 2025. As the termination was effective from 13 December 2024, the application was lodged 18 days outside the statutory time limit prescribed by s.394(2) of the Act.

• [5] The question before me is to determine whether an extension of time should be granted pursuant to s.394(3) of the Act. The Respondent opposes the granting of an extension of time.

• [6] Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file his application. A hearing was held before me on 12 March 2025. Both parties were self-represented. Mr Jamie Hall, Managing Director, appeared for the Respondent.

• [7] On 17 March 2015, the Respondent sent the Applicant an offer letter. The offer was stated to be "employment" with the Respondent as a casual Communication Data Officer (CDO). The Applicant was advised that he would be working from the Telstra Boondall Office and reporting to a Telstra CDO Manager.[2]

• [8] On 9 March 2016, the Applicant was sent a letter from the Respondent offering him "permanent appointment as a Telstra CDO at Syndicate Communications Pty Ltd".[3] The offer included payment of superannuation and annual leave.[4] The letter concluded with "We take this opportunity to welcome you to Syndicate Communications Pty Ltd and we trust that you will find your employment to be a challenging and rewarding experience."[5]

• [9] The Applicant was previously sent a redundancy letter in 2020.[6] That letter was signed by Mr Hall and noted that the Applicant would be paid his full entitlements of 9 weeks redundancy.[7] The Applicant states this redundancy was later rescinded and he remained employed by the Respondent.[8]

• [10] On 15 November 2024, the Applicant was sent a termination letter by Mr Hall. That letter states:

We refer to the contract between Syndicate Communications Pty Ltd (us, our or we) and for provision of Telstra CDO/SMNG services dated 9th March 2022 (Contract).

In accordance with letter of engagement , we are exercising our right to terminate the Contract due to Telstra (the customer) no longer requiring your services as per your letter of offer dated 9th March 2022.

We are providing you with 4 weeks notice of termination, meaning that the Contract will be terminated effective on 13th December 2024.

We ask that you return all equipment and destroy all confidential information by this date[9]

• [11] On 15 November 2024 the Applicant replied to Mr Hall's letter asking, "Do I get anything paid to me other than my R/L balance?"

• [12] On 18 November 2024, Mr Hall responded as follows:

Whilst I'm pretty annoyed at how they have gone about this, they did provide us with 4

As these are contract roles , on top of this notice period you will only receive any

Whilst I don't want to give you any false hope, we are desperately trying to work on some other options in the background .

Although realistically even if we can pull something off, its unlikely to be this side of

• [13] On 16 December 2024, the Applicant emailed the Respondent's administrator referring to the redundancy letter sent in 2020 and noting that his contract had not changed since then. The Applicant said that he is entitled to 16 weeks' redundancy pay, plus an additional week as he is over 45.[10]

• [14] On 17 December 2024, Mr Jason Bird, General Manager for the Respondent replied:

As per the fair work guidelines your role falls under an identified task or project .

Who doesn't get redundancy pay - Fair Work Ombudsman

• [15] The email includes a link to a webpage on the Fair Work Ombudsman website. The relevant section of the webpage states:

The following employees don't get redundancy pay under the NES:

• employees whose period of continuous service with the employer is less than 12 months
• employees employed for:
  • a stated period of time
  • an identified task or project
  • a particular season
• employees terminated because of serious misconduct
• casual employees
• trainees engaged only for the length of the training agreement

• [16] The Applicant states that he called Mr Bird after receiving his email. The Applicant states that Mr Bird said that Mr Hall may be mistaken and that Mr Hall might not have realised that the Applicant is on "one of the old contracts".

• [17] On 23 December 2024, the Applicant recalls that he again called Mr Bird. Mr Bird reportedly told the Applicant that only Mr Hall was able to authorise payment of the redundancy and that Mr Hall would be on leave until 6 January 2025.
• [18] On 6 January 2025, the Applicant emailed the Respondent asking "can this redundancy issue please get sorted ASAP".[12]

• [19] Mr Hall responded on the same day, reiterating the position that the Respondent would not be paying the Applicant a redundancy as "As per previous advice, redundancy does not apply in your case. The CDO role comes under the classification of 'an identified task or project'"[13]

• [20] After receiving this email, the Applicant called the Fair Work Ombudsman. The Applicant states that he called twice because the initial advice he received was not helpful. On 12 January 2025, the Ombudsman provided the Applicant with a phone number for a community legal service. There was a delay in obtaining an appointment. On 20 January 2025, the Applicant had a telephone appointment for legal advice and was advised to lodge a Form F2 as soon as possible.

• [21] The Applicant filed his Form F2 on 21 January 2025.

• [22] The Respondent filed their employer response on 24 January 2025. The Respondent objected to the application on two grounds. Firstly, that is it made out of time, and secondly that the Applicant was 'employed in a contract role, he was employed for an "identified task or project"'. The Respondent relies on the latter ground as the reason why the Applicant is not entitled to a redundancy. The Respondent's objection is not well articulated. It appears to reference the section of the Fair Work Ombudsman website which they directed the Applicant to earlier. In the hearing the Respondent clarified that they contend that the Applicant is a contractor and not an employee. The Respondent noted in the Form F3:

Mr Adam worked out of our clients offices, operated using our clients system and used a client issued email address

Mr Adams worked closely with our clients management and was well aware he was employed for this specific task[14]

• [23] Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:

"(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:

(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 like position."

• [24] The test of 'exceptional circumstances' establishes a high barrier for an applicant.[15] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[16] the Full Bench of Fair Work Australia stated that:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

• [25] Although Nulty concerned the expression 'exceptional circumstances' in the context of s.365 of the Act, its reasoning applies to s.394(3).

• [26] For the Applicant's application to proceed, I must be satisfied that there are "exceptional circumstances" for the Applicant to obtain an extension of time under s.394(3) of the Act.

Reason for the delay (s.394(3)(a))

• [27] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[17] or a reasonable explanation.[18] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

"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 reliant matters and the assignment of appropriate weight to each. [19]

• [28] It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[20]

• [29] The Applicant provided several reasons for delay.

• [30] The Applicant was unwell with a respiratory tract infection which commenced in October, and which was exacerbated in late November 2024. The exacerbation lasted through to early December and lingered as a cough until January 2025. The Applicant provided a certificate from his general practitioner as proof of this illness.[21]

• [31] The Applicant's brother passed away from pancreatic cancer on 1 December 2024. The Applicant's brother's condition had been deteriorating from some time but the Applicant states that his brother's death was sudden and a shock to him, as he had had tea with his brother a couple of days before he died. The Applicant's brother's funeral was on 12 December 2024. The Applicant provided a copy of his brother's death certificate as evidence.[22]

• [32] The Applicant's wife suffers from suffers from clinical depression and anxiety. The Applicant states that his wife has had difficulty coping following the Applicant's dismissal.

• [33] The Applicant stated he was very shocked when he was terminated and that he went through a "denial phase", thinking "this can't be happening to me", referencing the fact that he has been working in the industry for over 50 years. He explains that this denial contributed to his delay.

• [34] I note the Applicant also states that he had difficulty obtaining advice from the Fair Work Ombudsman and difficulty in obtaining an appointment with a solicitor. These factors were not directly proffered by the Applicant as a reason for the delay, but they appear to have contributed to the delay.

• [35] In considering the Applicant's reasons for delay, I note that some of the reasons provided are very credible, whereas others are not, by themselves, reasonable explanations for delay. Shock and denial following a job loss by itself is not an exceptional circumstance. It is a very common reaction to being terminated. Neither is delay is obtaining legal advice an exceptional circumstance.

• [36] However, the Applicant has otherwise provided credible reasons to explain the whole period of the delay once regard is had to the Applicant's illness and the sudden death of his brother. Both of these reasons are supported by documentary evidence. The Applicant's brother's death as a result of pancreatic cancer is a significant and exceptional life event. This reason should be given more weight than the other reasons provided. It is entirely understandable that the Applicant would be affected by the shock of the death of his brother within the statutory limitation period. The Applicant's brother's funeral was on 12 December 2024, 22 days before the expiration of the limitation period.

• [37] The Respondent claimed to be unaware of the death of the Applicant's brother, even though email evidence was provided demonstrating that the Applicant requested time off to attend his brother's funeral.

• [38] The Respondent also argued in relation to the reasons provided for delay: "Whilst not discounting the above , at no time did these circumstances prevent Mr Adams from attending work in a normal manner."[23] I find that the suggestion that the impact of the Applicant's brother's death must somehow be less because it did not prevent the Applicant from attending for work insensitive and I reject the premise. The Applicant has stated that he felt he had to work, and that he had a strong work ethic.

• [39] I find that the Applicant has provided an acceptable reason for delay, which covers the whole period of the delay. This weighs in favour of a finding of exceptional circumstances.

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

• [40] The Applicant first became aware of his dismissal on 15 November 2024, when he received the termination notice. The Applicant's dismissal took effect from 13 December 2024.

• [41] This consideration weighs against an extension of time.

Action taken to dispute the dismissal (s.394(3)(c))

• [42] Between 15 November 2024 and 6 January 2025, the Applicant sent several emails to the Respondent asking whether he was going to be paid a redundancy.

• [43] The Applicant does dispute the reasons provided for the dismissal. He argues in his submissions he could have been re-assigned to another technology group and he was not.[24]

• [44] However, the Applicant's emails to the Respondent from prior to lodging this claim do not dispute the dismissal itself, but rather the fact that he was not paid a redundancy.

• [45] I note that the relevant consideration for the purposes of s.394(3)(c) is whether the Applicant took alternative avenues to dispute the dismissal, prior to making the subject claim such that the Respondent could be in no doubt that the decision to terminate the Applicant was actively disputed.[25]

• [46] I consider this to be a neutral factor in this case. While the Applicant did not take actions to dispute the termination itself, the Respondent could be in no doubt that the Applicant actively disputed the Respondent's decision not to pay a redundancy and was likely to take further action.

• [47] The Respondent has provided no evidence of prejudice as a result of the delay. However, I note that an absence of prejudice is not a sufficient reason to grant an extension.[26]

• [48] I note that the Full Bench has found that whether an absence of prejudice is neutral or whether it weighs in favour of granting an extension depends on the facts of the case.[27]

• [49] I consider this to be a neutral factor in this case.

• [50] It is not appropriate for the Commission to embark on a detailed consideration of the substantive case when deciding whether to grant an extension of time.[28]

• [51] In Kornicki v Telstra-Network Technology Group,[29] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"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."

• [52] Assessing whether the Applicant is an employee or a contractor within the meaning of ss. 15 and 15AA for the Fair Work Act will require further evidence from the Applicant, Respondent and from Telstra.

• [53] That said, the Applicant has raised strong concerns regarding the Respondent's claim that he is a contractor and is not entitled to a redundancy, particularly with regard to the fact that the Applicant was previously offered a redundancy by the Respondent. The Respondent has not provided convincing reasons for why the Applicant should not receive a redundancy, as is his entitlement under the NES.

• [54] In my preliminary view of the Applicant's evidence, it appears that the Respondent is attempting to retrospectively and unilaterally change the nature of the relationship between the parties. Further, I have seen no evidence to support the hypothesis that being an employee who is outsourced to perform work for a third party is performing a "defined task" such that when the client ends their contract with the employer, the employee is not entitled to a redundancy.

• [55] However, without a hearing on the question of whether the Applicant is an employee, it is difficult to consider make an assessment of the merits of the claim.

• [56] Accordingly, I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

• [57] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[30]

• [58] The Applicant has not provided any submissions on this point. It may be the case that other persons were provided with termination notices from the Respondent at the same time as the Applicant, but I have not been provided with any evidence that those persons made applications to the Commission and were treated differently.

• [59] I note that Members of the Commission previously considered whether the death of a family member is an exceptional circumstance. In Deeb v Potinak P/L ATF Rainbow Motor Inn Unit T/A Rainbow Inn [2017] FWC 5474, Commissioner Hunt was not persuaded that the sudden death of the Applicant's brother was an acceptable reason for delay.[31] However, it was relevant to the Commissioner's decision that the death did not occur until after the statutory timeframe had already expired.[32] In Bustamante v Motor Trading Syd Pty Ltd [2023] FWC 1743, Deputy President Wright did not consider the sudden death of the Applicant's mother to be an exceptional circumstance for an application which was 5 days out of time.[33] However, I note that the Applicant in that case failed to provide evidence in relation to his mother's death and failed explain link the connection between the death and the delay.[34] In contrast, the Applicant has provided a copy of his brother's death certificate and has stated that his brother's death was a great shock to him and was very stressful. Further, the Applicant has provided a combination of reasons for delay, which, when assessed together, are exceptional, including his brother's death, his illness and his wife's clinical depression.

• [60] Accordingly, I find this to be a neutral factor in this application.

• [61] Having regard to all the matters set out above, I am satisfied that exceptional circumstances exist in this matter.

• [62] The Commission may consider whether to allow a further period for the application to be made once exceptional circumstances are established.

• [63] I exercise my discretion to extend the period for the application to 21 January 2025. My Chambers will issue further directions programming the matter to determine the jurisdictional objection and the merits.

[1] Annexure 4 to Applicant Submissions - Termination Letter dated 15 November 2024.

[3] Annexure 5 to Applicant Submissions - Letter of Offer

[6] Annexure 3 to Applicant Submissions - Termination Letter with Redundancy

[7] Annexure 3 to Applicant Submissions - Termination Letter with Redundancy

[9] Annexure 4 to Applicant Submissions - Termination Letter dated 15 November 2024.

[10] Applicant email to Sabrina Van Ristell dated 16 December 2024.

[11] https://www.fairwork.gov.au/ending-employment/redundancy/who-doesnt-get-redundancy-pay

[12] Applicant email to Jason Bird dated 6 January 2025

[13] Email from Jamie Hall to Applicant dated 6 January 2025

[15] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].

[16] [2019] FWC 25.

[17] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].

[18] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].

[19] [2018] FWCFB 901 [39].

[20] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31] - [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

[22] Kevin Peter Adams Death Certificate

[23] Respondent Response to Request for Extension.

[24] Witness Statement from Ray Rogers.

[25] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.

[27] Miller v DPV Health Ltd [2019] FWCFB 6890, [21]-[22].

[28] Bennett v McCarrolls of Moss Vale Pty Ltd T/A McCarrolls Automotive Group [2017] FWCFB 1971 at [19].

[29] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[30] Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818, [31].

[31] Deeb v Potinak P/L ATF Rainbow Motor Inn Unit T/A Rainbow Inn [2017] FWC 5474, [54].

[33] Bustamante v Motor Trading Syd Pty Ltd [2023] FWC 1743, [42].

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