s.394 - Application for unfair dismissal remedy

Application alleging contravention of unfair dismissal provisions - whether application out of time - extension of time - whether exceptional circumstances exist -application dismissed.

• [1] This decision concerns the issue of whether there are 'exceptional circumstances' such that the Applicant, Ms. Mikkaela Fredericks (Applicant), should be permitted to proceed with an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act) against her former employer Southern Cross Support Services Pty Ltd (Respondent). For the reasons below, I have concluded that there are no exceptional circumstances as contemplated by the relevant provisions of the Act. It follows that the application must be dismissed.

• [2] On 17 March 2025 the Applicant filed an application under s.394 of the Act against the Respondent alleging that her employment had been terminated by the Respondent in breach of the unfair dismissal provisions in Part 3-2 of the Act.

• [3] Under s.394(2) of the Act, an application of this kind must be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission (Commission) allows under s.394(3). It was not in issue that the Applicant's dismissal took effect on 19 February 2025 and that to have been made within the 21-day time period the application would have had to be filed by 14 March 2025. The application was therefore outside that statutory time period by three days.

• [4] The Respondent maintained that there were no exceptional circumstances to justify an extension of time. The Applicant argued that there were exceptional circumstances justifying an extension.

• [5] Section 394(3) sets out the circumstances in which the Commission may extend time for an application of this kind and the matters which are to be taken into account in determining whether exceptional circumstances exist. It 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.

• [6] I deal with each of the matters referred to in s.394(3) below.

Section 394(3)(a) - reason for the delay

• [7] The delay is the period between the end of the 21-day time period and the date the application is filed. An applicant does not need to provide a reason for the entire period of the delay. A credible explanation for the entirety of the delay would weigh more heavily in favour of a finding of exceptional circumstances. On the other hand, a failure to provide a credible explanation for any part of the delay tends to weigh against a finding that exceptional circumstances exist.[1]

• [8] The Applicant put forward two reasons for the delay in filing the application. First, she submitted that she was not aware of the time limit that applied to unfair dismissal applications. Secondly, the Applicant submitted that she was awaiting the outcome of an investigation into circumstances connected to the termination of the Applicant's employment by the Department of Families, Seniors, Disability Services and Child Safety (Queensland) (the Department). That investigation examined the question of whether children for whom the Respondent had some caring responsibilities had experienced harm whilst they were being cared for by the Applicant in her capacity as an employee of the Respondent. A letter was provided by the Department to the Applicant dated 17 April 2025 setting out the outcome of the investigation. It provided, relevantly as follows:

The outcome of the investigation and assessment is unsubstantiated harm - standards not met. This means that it has been determined that the children have not experienced harm and are unlikely to experience future harm, however the care of X did not (sic) the legislated standards.

• X's requests for medical attention were not responded to in a timely way.

Please hear that the investigation and assessment noted that although X is not always truthful, the abusive phone call was heard by another staff member during a three-way phone call and your standard of care history indicates a pattern of behaviour whereby you have been alleged to respond inappropriately to children when they are demonstrating challenging behaviours.

The assessment also note that you were stood down and terminated by Southern Cross as a result of their internal investigation regarding the concerns for this harms report. Given that you are no longer employed with Southern Cross an action plan is not required. (name omitted, original emphasis)

• [9] The Respondent submitted that the reasons advanced by the Applicant for the delay did not support a conclusion of exceptional circumstances. They said that a lack of knowledge of the statutory time limit is commonplace. They said that the Applicant could have filed her application without waiting for the outcome of the Department's investigation, and could have simply included a reference to the existence of the inquiry in the application. Instead, the Respondent said, the decision to delay the making of the application was a matter of conscious choice on the part of the Applicant. Further, they said the external investigation by the Department was separate and distinct to the process that was undertaken by the Respondent which ultimately resulted in the termination of the Applicant's employment.

• [10] I agree with the Respondent's submissions. It was the outcome of the Respondent's process that was of central concern to the Applicant and which was to be challenged by the unfair dismissal application. Although there may have been some overlap in terms of the factual matters that were being considered, the Department's inquiry was a separate process that presented no obstacle to the preparation and filing of an application by the Applicant. I would also observe that the Applicant did not ultimately choose to delay the filing of the application until the outcome of the Department's investigation was known since that outcome was not made known until 17 April 2025.

• [11] A lack of knowledge of statutory time periods relating to these matters is commonplace. The lack of awareness of a legal right or any timeframe associated with a claim to assert that right is not an exceptional circumstance.[2] The reasons advance by the Applicant do not in my view, properly account for the delay and do not weigh in favour a conclusion that exceptional circumstances exist.

Section 394(3)(b) - Whether the person became aware of the dismissal after it had taken effect

• [12] The Applicant did not dispute that she had been made aware of the dismissal on the date it took effect, i.e. 21 March 2025. She was made aware of the dismissal when the Respondent provided a written notice of termination on that date. There is nothing under this heading that weighs in favour of a conclusion that exceptional circumstances exist.

Section 394(3)(c) Any action taken by the person to dispute the dismissal

• [13] The Applicant gave evidence that she made a request for copies of her payslips from the Respondent a couple of days after her dismissal but otherwise the Applicant conceded that she did not take any steps to dispute the dismissal until the application was filed. There is nothing that weighs in the Applicant's favour under this heading.

Section 394(3)(d) - Prejudice to the employer

• [14] I am unable to identify any prejudice to the Respondent caused by the delay. This is a neutral consideration in the assessment.

Section 394(3)(f) - Fairness as between the person and other persons in a like position

• [15] There was no evidence about fairness considerations as between the Applicant and other persons in a like position. This is a neutral factor here.

Section 366(2)(e) - Merits of the application

• [16] The Applicant was dismissed by the Respondent for misconduct as a result of events that were said to have occurred on 28 January 2025 while the Applicant was engaged as a residential care team leader in the care of young persons at an establishment called Primrose House. The allegations in summary related to the Applicant's failure to take appropriate measures in response to one of those persons saying that he had been injured and needed medical attention. There were also allegations in relation to the Applicant using offensive language and speaking in an aggressive tone to the young person in her care on the same day.

• [17] There was evidence of the Applicant being provided with the details of the accusations and an investigation process being undertaken by the Respondent. The Applicant was provided with written details of the allegations on or about 31 January 2025. There was a record of interview conducted with the Applicant on 5 February 2025. The Applicant was advised of the proposed outcome of termination by correspondence dated 17 February and given a further opportunity to respond before her termination occurred on 21 February.

• [18] The Applicant denied the allegations relating to the use of abusive language and said her denial was corroborated by a co-worker. The Applicant was aware from the particulars of the allegations that the alleged offensive language was said to have been overheard by another employee of the Respondent who was on the telephone line at the time some of the language was alleged to have been used. The Applicant asserted that the Respondent, having obtained evidence from the co-worker that abusive language was not used, then turned the focus of the accusations to her failure to seek medical attention for the young person in care, a matter which she said she had herself disclosed during the investigation process.

• [19] The Applicant did not deny that she had not called an ambulance after being told by the young person that he had been injured but said the young person later refused the offer of an ambulance, was more than capable of calling one himself if he needed one and appeared to the Applicant to be at all times alert and uninjured.[3] During the investigation process the Applicant accepted that she did not notify management that the young person had told her that he had been injured because it was 4 a.m. and the young person was visibly fine and no longer wanted medical attention.

• [20] Whilst it is unnecessary for me to make findings on all contested matters of fact in the assessment of the merits for the purpose of s.394(3)(e), on the basis of the material before me I think there are difficulties with the Applicant's case given the concession that she did not seek medical attention for the young person in question. I note the Department's outcome letter is of little assistance to the Applicant. Although the letter says no harm was occasioned it concludes that requests for medical attention were not responded to in a timely way. It also appears to conclude that there was an abusive phone call involving the Applicant that had been heard by another staff member although I do not think it is necessary or desirable for me to express a concluded view about that issue having regard to the limited evidence. Further, I am unable to identify anything in the material available to me to indicate that the process that was followed in effecting the termination was procedurally unfair. I do not think that the merits of the Applicant's case weigh in favour of a conclusion that exceptional circumstances exist.

• [21] In circumstances such as these, the Applicant must satisfy the Commission that there are exceptional circumstances which warrant the Commission exercising its discretion in favour of granting an extension of time.

• [22] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. Exceptional circumstances may 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.[4]

• [23] Having taken into account the matters set out above, I am not satisfied that there are exceptional circumstances in this case. Accordingly, there is no basis for an extension of time.

By video using Microsoft Teams at 10:00am AEST on Friday, 23 May 2025.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39] in relation to similar provisions in Part 3-1.

[2] Miller v. Allianz Insurance Australia Ltd [2016] FWCFB 5472 at [23].

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