Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed out of time - exceptional circumstances not established - extension of time not granted

• [1] Ms Miriam Meyer-Plath (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 relation to the termination of her employment with Thiess Pty Ltd (the Respondent).
• [2] The Applicant commenced her employment with the Respondent on 22 November 2023. On 10 April 2025, the Applicant was notified that her employment had been terminated.

• [3] The Applicant lodged her application on 7 May 2025. The application was lodged 6 days outside the statutory time limit prescribed by s.394(2) of the Act.

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

• [5] 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 her application. A hearing was held before me on 1 July 2025. Both parties were self-represented.

• [6] 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."

• [7] The test of 'exceptional circumstances' establishes a high barrier for an applicant.[1] 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),[2] 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."

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

• [9] For the Applicant's application to proceed, there must be "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))

• [10] 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[3] or a reasonable explanation.[4] 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." [5]

• [11] 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.[6] In Giles v Coal Train Australia Pty Ltd, Vice President Asbury stated that the Applicant is required to provide evidence to establish the nature and the impact of any exceptional circumstances.[7]

• [12] The Applicant stated in an email to Deputy President Easton's Chambers that the reason for the delay was as follows:

I have a depressive illness, depression and anxiety, caused by Thiess' actions. More specifically, I also have Severe PTSD, including Moderate Severe Depression and Severe Anxiety, caused by Thiess and members of Thiess management team. Furthermore, I have physiological illnesses caused by the prolonged stress and anxiety that Thiess and members of the Thiess management team have caused me. These Medical Conditions, and the unsafe work conditions and workplace bullying harassment that caused them, are exceptional circumstances, and are also the reason for my delay in submitting my application to the Fair Work Commission within the 21 days after my Unfair and Unlawful Dismissal.

• [13] I clarified with the Applicant during the hearing that the question is not about whether the dismissal occurred in exceptional circumstances, but rather whether the delay was caused by exceptional circumstances.

• [14] The Applicant gave the following reasons for delay in the hearing:

• She thought she had already made an unfair dismissal application by contacting the Ombudsman;
• She has Posttraumatic Stress Disorder (PTSD), anxiety and stress which she says stem from her employment;
• She physical symptoms of kidney failure and other illnesses;
• She was applying for jobs and Centrelink; and
• She prefers telephone conversations for complex matters.

• [15] The Applicant briefly discussed attempts to apply for other jobs and to apply to Centrelink following her dismissal. These are not acceptable reasons for delay. The primary reasons put forward for the delay are considered below.

• [16] Firstly, the Applicant states she thought she had already made an unfair dismissal application by speaking to the Fair Work Ombudsman. This aspect of the Applicant's evidence is somewhat confusing. The evidence suggests that the Applicant called the Queensland Ombudsman on the day of her termination. That is, the Queensland state government Ombudsman. Sometime between 10 April 2025 and 2 May 2025, the Applicant called the Fair Work Ombudsman. The Applicant provided an email dated 2 May 2025 from a Team member of the Fair Work Ombudsman which states: "Thank you for your time on the phone recently in relation to your concerns about Thiess Pty Ltd." The Applicant stated that this phone conversation was on 1 May 2025. The Applicant stated in her email to Deputy President Easton's Chambers:

On Thursday 1st May 2025, the Enforcement Team Leader, Ann Sanders, contacted me, and told me that she was from the Fair Work Ombudsman and I had been dealing with the Fair Work Ombudsman all along. She then clarified the difference between the Fair Work Ombudsman and the Fair Work Commission. Both are called "Fair Work" and they are both Australian Government entities, so it is a very easy and understandable mistake for anyone to make. As this was a public day weekend, I was only able to call Tuesday 6th May 2025. I had no internet on the weekend; therefore was unable to lodge earlier than this.

• [17] The Applicant states that she spoke to a gentleman from the Ombudsman before her dismissal and on the day of her dismissal. The Applicant described a series of matters related to her employment and says she was told by the gentleman that a case had been made for her. She says she was informed that she already had an ongoing case regarding sexual harassment. She stated in her written material:

I had called Fair Work several days before my Unfair Dismissal, and told them of the sexual harassment, indecent assault, workplace bullying, and workplace harassment perpetrated towards me by a Thiess Supervisor, and then the deliberate workplace bullying and harassment perpetuated by other members of the Thiess management team and by Thiess Pty Ltd itself thereafter as a result thereof. They said they would tell their Sexual Harassment Team and get back to me as soon as possible. Immediately after getting unfairly and unlawfully dismissed by Thiess Pty Ltd on 10th April 2025, I called Fair Work and told them that I had been unfairly dismissed. I told them everything that had happened that day, and the entire lead up to it, on the phone...

Fair Work told me then that they understood, and did not mention any distinction between the two Fair Work entities. Fair Work then told me that they would put me onto their best lawyer, and to collect and collate all the evidence and proof I had, and to wait for their lawyer to contact me.

• [18] It would be likely in my view that if the Applicant spoke to the Fair Work Ombudsman and described either bullying or sexual harassment at work, as well as describing being unfairly dismissed, she would have been referred to the Fair Work Commission, or at least been told about the Fair Work Commission, which deals with all those matters. I therefore find it, on balance, to be unlikely that it was the Fair Work Ombudsman who the Applicant spoke to on the day of her dismissal or, alternatively, if the Applicant did speak to the Ombudsman, I find it more likely than not that she would have been informed of the existence of the Fair Work Commission. In any event, the fact that the Applicant was not aware of the difference between the entities does not establish an acceptable reason for delay.

• [19] There is no record of the Applicant lodging any prior applications in the Commission.

• [20] The Applicant acknowledges that she had read that there is a 21-day period applicable to dismissal related claims. However, she states that "promptly forgot" about that period due to her PTSD. She later stated that she was not aware of the 21-day limit "properly" until 5 May 2025.

• [21] It is well accepted that ignorance of the law does not provide an acceptable reason for delay. I wish to clarify that this does not mean that the person is ignorant. It simply means that the person does not know about the 21-day statutory time limit for dismissal related matters or about the relevant causes of action, or this case, does not know about the differences between the statutory bodies the Fair Work Ombudsman and Fair Work Commission. This is the case for many members of the general public. However, it is not an acceptable reason for delay.

• [22] The Applicant's evidence suggests that she is knowledgeable of employment law to the extent that she immediately challenged the dismissal on the basis that she not given an opportunity to respond. Further, the Applicant gave evidence that she was collating evidence in the support of her claim from the date she was dismissed. The Applicant also said that she spoke to between 4 and 5 lawyers in the week after she was dismissed, some of whom were specialist employment lawyers. The Applicant referenced the usual terms of a settlement deed following a conciliation. The Applicant said she knew the difference between an unfair dismissal claim and general protections claim and that she chose to pursue an unfair dismissal claim. The Applicant had previously made lodged a WorkCover claim. On the basis of the above knowledge of the Applicant, I do not accept that it is a reasonable reason for the delay that the Applicant states that she believed she had already made an unfair dismissal application by speaking to someone on the phone on or around 10 April 2025. The Applicant did not give evidence of any reference number she received following the phone call.

• [23] The Applicant highlights that she was suffering from significant medical issues that she says were brought about by her treatment whilst employed by the Respondent.

• [24] This medical evidence includes six medical certificate from the Applicant's general practitioner, including five work capacity certificates, and a report from the Applicant's clinical psychologist prepared for WorkCover.

• [25] I have given weight to the medical evidence on the basis of concluding whether the Applicant has a medical condition or not. As to the causation of that medical condition, I note there is an ongoing workers' compensation claim and it is inappropriate for me to conclude on whether the condition is work-related in light that claim. The Respondent suggested that I should put due weight on the psychologist report, noting that that evidence had not been testified to.

• [26] It is appropriate to give weight to the psychologist report because it provides the view of a specialist diagnostician that the Applicant presents with symptoms consistent with PTSD, stress and moderate severe depression. The psychologist has diagnosed the Applicant with PTSD. I accept that the Applicant has that diagnosis. The psychologist's report indicates that the symptoms of PTSD in the Applicant include intrusive flashbacks and recurring dreams as well as hypervigilance and increased levels of anxiety.

• [27] The Applicant explained that the PTSD affects her physiologically through kidney pain at times leaving her bedridden. The psychologist reported that the Applicant was previously treated for a kidney infection with antibiotics but there is no direct medical evidence from the Applicant to corroborate the kidney issues which the Applicant describes in the period after her dismissal.

• [28] The kidney issues the Applicant describes are significant because the Applicant states that on or around 1 May 2025, the day the 21-day period expired, the Applicant was informed on the phone by the Fair Work Ombudsman that the Fair Work Commission is a separate entity and that she had not made an application with the Commission.

• [29] But on this day the Applicant said she was bedridden with kidney pain and could not leave her house. She said that her internet at home is also unreliable and she was not able to make the Application. The Applicant stated that she then filed her application as soon as she felt able to, 6 days later.

• [30] The Applicant said in her written material that she was not able to file over the weekend due to internet difficulties and that as she could not call the Commission until the following working day, Tuesday, 6 May 2025. Monday, 5 May 2025 was a public holiday in Queensland but the Applicant would have been to call Commission staff in other states. In any event, the Applicant did not explain why she did not file the Application on 6 May 2025, when she states that she was able to call. She filed the application on 7 May 2025. The Applicant explained that the reason she called before making an application is that she prefers to deal with complex matters over the phone. I note that the Applicant's written material is detailed and includes references to multiple research articles, which in my view mitigates the Applicant's claim regarding dealing with dealing with complex matters over the phone.

• [31] There is no direct evidence of the Applicant's internet connectivity issues, which I note seemed to be fine during the hearing, however I accept that the Applicant lives regionally.

• [32] I am sympathetic to the Applicant and I accept that she experiences mental and physical symptoms which make tasks difficult for her.

• [33] However, the Applicant has not established a credible explanation for the whole period of delay of 6 days. The Applicant claims that she had already made an application but at the same time she says was seeking advice from multiple lawyers on the best application to make. If she had made an application, the lawyers would have likely asked to review the form she submitted. On the evidence before me, the Applicant's explanation is not plausible.

• [34] The Applicant's preference for dealing with matters over the phone is not an acceptable reason for delay. Further, the Applicant does not explain why she did not submit her application on 6 May 2025 the date on which the Applicant accepts that she was able to call the Commission staff. The Applicant is required to explain the entire period of delay.

• [35] It is well established that ignorance of the law is not an exceptional circumstance. I find that the Applicant's reason for delay is not acceptable. This weighs against an extension of time.

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

• [36] The Applicant became aware of her dismissal on the day it took effect, 10 April 2025.

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

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

• [38] Immediately after receiving the termination letter, the Applicant made several attempts to contact the Respondent. She provided a copy of an email which she sent to the Respondent's HR Manager on 10 April 2025 after receiving termination letter in which she claimed to have been unlawfully terminated. This evidences that the Applicant did take actions to dispute the dismissal prior to lodging this claim.

• [39] This consideration weighs in favour of a finding of exceptional circumstances.

• [40] The Respondent argues that there may be a degree of prejudice to the Respondent, given that a number of managers that were subject of her complaints have moved on.

• [41] However these concerns are not attributable to the delay, as these circumstances would also be concerns for the Respondent if the application had been brought within time.

• [42] 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.[8]

• [43] 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.[9]

• [44] On or around 18 December 2024, as part of a show cause response related to alleged safety breaches by the Applicant, the Applicant made a complaint listing 35 alleged sexual harassment and bullying incidents. The Respondent commenced an investigation and did so using an employment lawyer employed by the Respondent. The outcome was presented to the Applicant and the Respondent says the complaints were not substantiated. The Applicant was subsequently on leave with medical certificates declaring her unfit for work.

• [45] The Applicant was asked on 9 April 2025 to attend a telephone meeting on 10 April 2025 for the outcome of the disciplinary investigation. The Applicant was telephoned on 10 April 2025, but she says she was going into a doctor's appointment and told the Respondent's employee that she could not talk. A termination letter was sent to the Applicant that morning. The Applicant disputes the investigation results and contests that she was denied an opportunity to respond prior to being dismissed.

• [46] In Kornicki v Telstra-Network Technology Group,[10] 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."

• [47] Without a hearing on the merits, it is difficult to consider the merits of the Applicant's claim. 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))

• [48] As to the Applicant's claim that she was not properly aware of the timeframe, as is noted in Nulty, it is not unusual for parties to make applications out of time due to not understanding the statutory timeframe.[11] Ignorance of the timeframe does not establish exceptional circumstances, such that the strict time limit should be extended.

• [49] The Applicant alleges that there was differential treatment between her and other employees, and those employees were not terminated. There is no evidence that an employee in a similar situation to the Applicant was granted an extension to time to make an unfair dismissal application.

• [50] I find this to be a neutral factor in this application.

• [51] Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. Accordingly, the extension of time is not granted and the application is dismissed.

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

[2] [2019] FWC 25.

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

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

[5] [2018] FWCFB 901 [39].

[6] 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.

[7] Giles v Coal Train Australia Pty Ltd [2020] FWC 2274 at [38].

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

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

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

[11] Nulty v Blue Star Group Pty Ltd [2019] FWC 25, [13].

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