s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application out of time - no exceptional circumstances - application dismissed.

• [1] On 5 May 2025, Mr Michael Carlson (Mr Carlson / the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with Sunshine Coast Grammar School (the Respondent). The Respondent objected to the application as it said the Applicant's application was filed outside of the 21-day statutory timeframe. The matter was listed for jurisdictional hearing on the out of time issue on 23 June 2025. Directions were issued for the filing of submissions and parties filed further material.

• [2] Mr Christopher Campbell, a Solicitor at Aitken Legal was granted leave under s.596(2)(a) to appear on behalf of the Respondent, and Mr Carlson, appeared on his own behalf.

• [3] Ms Claire Torrisi, HR Director, Ms Victoria Bradbury, Director of Music Performance and Mr Mark Henricks, Dean of Co-Curriculum provided witness statements on behalf of the Respondent. The Applicant provided a witness statement on his own behalf and Mrs Nicole Carlson, the Applicant's wife, submitted a witness statement in support of the Applicant.

• [4] The Applicant has been affiliated with the Respondent for many years, and prior to the end of employment, was contracted 1 hour per week as Ensemble Director for Grammar Guitars, in addition to giving lessons directly to students at the Respondent's premises through a Venue Hire Arrangement for about 15 hours per week.

• [5] On 21 February 2025, Ms Bradbury emailed the ensemble directors, including the Applicant, regarding the upcoming ensemble showcase noting that "I request that both the guitar ensembles are accompanied by backing tracks..."

• [6] On 22 February 2025, the Applicant responded:

I've been producing Grammar guitars now for seven years and have never used backing tracks. There are no arrangements available for a Guitar ensemble they have all been written by myself. There should be no problem with sound as long as there is a technician that knows what he or she are doing. I can understand the need for the junior Guitar ensemble, however, senior ensemble has been arranged so that all parts are catered for. no backing track required)

If you insist that the guitar ensemble use backing tracks from now on, I'm perfectly happy to stand down as director."

• [7] On 23 February 2025, Ms Bradbury responded to the Applicant's email inviting him to discuss his email at an in person meeting to be arranged with herself and Mr Simon Eastwood.

• [8] On 26 February 2025, the meeting took place. The Applicant submitted that there were further discussions to be had to renegotiate a way forward. During the meeting with both the Head of Department and the Music Coordinator, the Applicant said that he was led to believe that they were going to negotiate an outcome that benefited everyone including students. The Respondent submitted that the Applicant resigned during that meeting. The Applicant strongly contested this.

• [9] On 3 March 2025, the Applicant emailed Ms Torrisi to clarify:

I'm a bit confused by your email. Could you please confirm that I will be continuing to

teach individual and paired lessons at Sunshine Coast Grammar."

• [10] Ms Torrisi responded on the same day:

I have spoken with Victoria and due to your resignation from your position at Sunshine Coast Grammar School, we will also cease your Venue Hire Agreement (for the provision of individual and paired lessons) at the end of Term 1, 2025.

You are able to continue your lessons for the remainder of this term."

• [11] On his form F2 application, the Applicant noted that he was notified of his dismissal on 3 March 2025, and it took effect on 3 April 2025.

• [12] On 3 March 2025, Ms Bradbury emailed the Applicant as follows:

This email is to follow up from our discussion last week, where you indicated your resignation from the Grammar Guitars. I am disappointed that we were not able to have a more productive conversation, however I accept your decision to resign and will forward through to Human Resources to process.

I would appreciate your confirmation in writing of your decision for our records.

As you are also engaged on a separate Venue Hire agreement, I will inform Operations and we will proceed with cancelling this agreement with 4 weeks' notice (effective end of Term 1, 2025), per your Venue Hire Agreement.

• [13] On 2 April 2025, the Applicant said he attended a meeting with a member of the School Executive leadership and Mr Mark Henricks.

• [14] It was apparent that there was a dispute between the parties as to whether the Applicant resigned in the course of the meeting on 26 February 2025. It was not contested that the engagement for 1 hour per week as Ensemble Director for Grammar Guitars was an employment relationship.

• [15] Mr Carlson agreed for the purposes of his other role he was provided a venue by the Respondent, and he taught students in the school and the students were invoiced by him directly for those lessons.

• [16] Mr Carlson submitted other music tutors at other schools were paid on a part time seasonal contract. He accepted he did not have that arrangement. Mr Carlson submitted that he was an employee for the purposes of this work. He accepted the school did not pay him, the families of the students paid him. He maintained that this could still be employment. I do not accept that the Venue Hire Arrangement constituted employment. The Applicant accepted that on his case, the employment relationship as the Ensemble Director for Grammar Guitars came to an end at the initiative of the Respondent on 3 March.

• [17] If I was to proceed on the basis that the employment relationship came to an end on 3 March 2025, the last day an application could have been filed within time was 24 March 2025 and the Applicant would require an extension of time to be granted for the period from 25 March to 5 May 2025 when an application was filed.

• [18] At the hearing for the purposes of the extension of time application, the Respondent submitted that it was prepared to concede that the employment relationship came to an end on 3 March 2025. It was agreed the extension of time hearing could proceed on the basis of the statements as filed, and there would be no need for cross examination of the witnesses about the meeting on 26 February 2025.

• [19] On that basis, the extension of time hearing proceeded on the basis that the employment relationship came to an on 3 March 2025.

• [20] In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under section 394(2) of the Act. This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.

• [21] 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.[1] 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.

• [22] The Act does not define 'exceptional circumstances' per se, but guidance can be gleaned from previous decisions. In 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.[2] 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.[3]

• [23] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:

"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"[4]

• [24] The period for which the Applicant requires an extension of time in the period from 24 March to 5 May 2025.

• [25] The Applicant said that on 12 March 2025 he sought a copy of the Venue Hire Agreement from the Respondent and on 13 March 2025 he was provided it. This relates to a period before his application was out of time.

• [26] The Applicant submitted that the reason for the delay between 24 March and 3 April 2025 was that as he was still on campus, he attempted to reach out to Mr Mark Henricks and Mr Simon Eastwood for mediation. He said Mr Eastwood was in a difficult position, however in seeking out Mr Henricks, he felt no reciprocal effort to mediate. The Applicant said a lot of students and parents were wondering what was going on and communications to parents and students was misleading and said simply that he was finishing his contract.

• [27] The Applicant said he was crushed and went into a period of grieving. He also said there had been a lot of staff turnover, he made a promise to the students to continue, and he felt he was made out to be a liar and was emotionally distressed. He said other staff encouraged him to do something.

• [28] The Applicant said on 8 April 2025, he emailed HR Director Ms Torrisi requesting copies of payslips from 2017 to 2015 and his record of compulsory training. On 9 April 2025, Ms Torrisi responded, informing the Applicant she had asked payroll to compile payslips requested and they will be prepared as soon as possible.

• [29] The Applicant said by 16 April 2025 he had not received the training records or payslips and on that day emailed Ms Torrisi following up on his request for training and pay slips. He said on 16 April 2025, he received the employment form. He received payslips as requested; however, receipts of training were only partly supplied, and he still has not received any receipts regarding cyber security training.

• [30] He said on Monday 21 April 2025, he telephoned local employment solicitors, and he received a return phone call. He said on the Tuesday 22 or Wednesday 23 April 2025, he received a telephone call from Ms Eloise Turnbull to discuss the details of his situation. He said Ms Turnbull asked that he email his employment contract and Venue Hire Agreement.

• [31] He said on Wednesday 23 April 2025, he emailed all contracts supplied to him by the HR department of the Respondent. He said he received an email from Ms Turnbull explaining that his employment agreement sent through was only a change of hours agreement and she requested a copy of the entire agreement. Ms Turnbull then continued in her email, advising of grounds for constructive dismissal via an application in the Fair Work Commission that required 21 days submission from termination of employment, and a time limit of 6 years for a wage claim. He said the final paragraph in the Solicitor's email was in relation to the fee structure to proceed.

• [32] The Applicant said on Wednesday 23 April 2025, he emailed Ms Torrisi at the Respondent and requested the full contract regarding his employment as Director of the Guitar Ensemble, and he then forwarded the employment contract to Ms Turnbull.

• [33] The Applicant said on Thursday 1 May 2025, he received a courtesy email from Ms Turnbull asking if he was wishing to proceed. He said he replied with his sincere apologies and that he was in the middle of rehearsals for a musical and that he would get back to her early the following week.

• [34] The Applicant said on Monday 5 May 2025, he submitted his claim of unfair dismissal to the Fair Work Commission and emailed Ms Turnbull informing her.

• [35] The Respondent submitted that what the Applicant was concerned about between the 3 March 2025 and his last day working on the campus was the Venue Hire Arrangement, and not his employment relationship. It said as the business arrangement of providing teaching lessons was his primary source of income, that is what he actually wanted to contest.

• [36] The Respondent submitted the Venue Hire Agreement was the first document he asked for on 12 March 2025 and Ms Torrisi provided the emails supporting that. The Respondent said on employment records, these weren't sought until later, and payslips were asked for on 8 April 2025 when the application was already out of time. The employment contract was not requested until 23 April 2025.

• [37] The Respondent submitted a reasonable assessment of the evidence is that the Applicant was not thinking about an unfair dismissal claim until he received advice from a lawyer on 21 or 23 April 2025 and still did not file until 5 May 2025. The Respondent said the application is substantially out of time, and it was the Venue Hire Agreement ending that upset the Applicant the most and it was the ending of that arrangement he wanted to try and resolve.

• [38] The Applicant submitted he did not perform any employment duties on 26 February 2025, or at any time after that in connection with his 1 hour per week employment agreement, however continued on campus for the 4 weeks' notice period in connection with his Venue Hire Arrangement.

• [39] The employment relationship ended on 3 March 2025, and the other business relationship where the Applicant was provided a venue to teach students was not an employment relationship. The explanations given for the reason for delay between 24 March and 5 May 2025, including the distress suffered from the employment relationship and the separate Venue Hire Arrangement ending, the seeking to mediate with the Respondent (it appears more likely in relation to the Venue Hire Arrangement than the 1 hour per week employment relationship), the seeking of documentation, the consultation with a solicitor, and the engagement in another school's musical production, do not constitute exceptional circumstances and this tells against extending time.

• [40] The Applicant agreed he was aware of the termination of his 1-hour engagement with the Guitar Ensemble from 3 March 2025. This factor is neutral.

• [41] The Applicant relied on his attempts to seek mediation with the Respondent, communicate with the Respondent's Human Resources Department, and sought the advice of a solicitor in April 2025. These are not exceptional circumstances favouring extending time.

• [42] The Respondent contended that it would be prejudiced by the Applicant being granted an extension of time. The Applicant submitted that the delay would not cause the Respondent any prejudice given its size and available resources. I find no prejudice to the Respondent given the period of delay and this factor is neutral.

• [43] In Telstra-Network Technology Group v Kornicki,[5] the Full Bench of the Australian Industrial Relations Commission said, in respect to the merits of an application:

"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."

• [44] Evidence on the merits is rarely called at an extension of time hearing and was not called in this case. The Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.'[6] The merits of the application more generally would need to be scrutinised and would include consideration of the circumstances of the dismissal, including the reason. If an extension of time were granted and the matter proceeded this would need to be examined.

• [45] I consider the merits to be a neutral factor.

Fairness between the person and other persons in a similar position

• [46] There was no evidence that there was another person in a similar position to that of the Applicant and this is a neutral matter.

• [47] I have weighed each of the matters I am required to consider and have determined that there are not exceptional circumstances in this case justifying an extension of time for the period from 24 March to 5 May 2025. On that basis the application is dismissed.

An order dismissing the application will be issued separately and concurrently with this decision.

[1] [2011] FWAFB 975; (2011) 203 IR 1, 6 [15].

[4] [2018] FWCFB 901; (2018) 273 IR 156, 165 [38].

[5] (1997) 140 IR 1.

[6] Kyvelos v Champion Socks Pty Ltd, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

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