s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal- out of time application - extension of time sought - exceptional circumstances exist - discretion to extend time exercised.

• [1] Ms Leela Bonney (Ms Bonney or the Applicant) made a general protections application under s.365 of the Fair Work Act 2009 (the Act) following the termination of her employment with MOMENTEA PTY LTD (the Respondent) on 22 January 2025.

• [2] The Applicant's application was lodged with the Fair Work Commission (the Commission) on 2 March 2025.

• [3] Section 366(1) of the Act states that an application made under section 365 must be made 'within 21 days after the dismissal took effect', or within such further period as allowed by the Commission pursuant to s.366(2).

• [4] In this instance, the period of 21 days concluded on 12 February 2025. The application was filed 18 days later, making the application 18 days out of time. It is, therefore, necessary that the Applicant be granted an extension of time for her application to proceed.

• [5] The Applicant requests the Commission grant an extension of time for her application under s.366(2) of the Act. The Respondent made submissions opposing the granting of an order to extend the time for filing the application.

• [6] A hearing was held on 27 May 2025 to hear evidence and submissions from the parties. The Applicant was represented by her mother, Ms Rebekah Bonney (Ms R Bonney), and the Respondent by Ms Ying Yuan, the owner and Finance Manager of the Respondent company.

• [7] The Applicant and Ms R Bonney submitted witness statements and gave evidence during the hearing.

• [8] For the reasons set out in this decision, I find exceptional circumstances exist that allow me to consider exercising discretion to extend the time for the filing of the application. I also find that it is appropriate in the circumstances that I exercise my discretion to allow the extension of time.

• [9] The Applicant is 16 years of age and in Year 11 at high school. She commenced as an employee in the Respondent's bubble tea store in September 2023. There appears to be some confusion as to whether Ms Bonney was a part-time or casual employee. The Respondent indicated to Ms Bonney in correspondence about her pay towards the end of her employment that she was engaged on a "part-time weekend rate",[1] but in response to the general protections application asserted that she was a casual employee.[2] In these proceedings, the Respondent provided an unsigned copy of a contract addressed to the Applicant on 27 December 2024, purporting to back date the contract to her start date on 30 September 2023, and referring to the Applicant's employment as casual.

• [10] Ms Bonney raised a query about her pay with the Respondent by email on 5 January 2025, where she said: "I have recently realised there has been errors in my pay, I've been getting payed (sic) as a part time employee instead of a casual worker."[3]

• [11] The Respondent responded to the email on 6 January 2025 by advising Ms Bonney of her classification as a junior, casual employee under the Restaurant Industry Award, and later the same day confirming its view that she was correctly being paid a part-time weekend rate.

• [12] On 7 January 2025, the Respondent sent the Applicant a 'pay guide' for her reference. The Applicant responded by asking the Respondent: "Just to confirm even though I'm a year older and a casual I'm making the same amount as someone who is younger and a part-timer?".[4]

• [13] On 14 January 2025, the Applicant was sent what the Respondent has described as a formal warning letter outlining 'specific performance issues'[5] and purporting to have received "complaints from several colleagues about [the Applicant's] attitude, actions and failure to meet the expectations set for [her] role."[6] The letter was sent by Ms Naomi Yang, Assistant Operations Manager.

• [14] The Respondent submitted undated correspondence between Ms Talia Billet, the Assistant Store Manager where the Applicant worked, and Ms Yang, referencing complaints from three other team members and raising complaints of her own about Ms Bonney's performance at work.

• [15] Ms Bonney submitted other correspondence purportedly from two of the colleagues cited by the Respondent as having made complaints, that reflected one employee denying they had made the complaint and the other clarifying the complaint had been made sometime in the past.

• [16] On 22 January 2025, Ms Bonney was sent an email by Ms Billett terminating her employment that said: "Thank-you for all your hard work at Momentea Elizabeth, but as of today your contract with us will be terminated."[7]

• [17] Ms Bonney then proceeded to file this claim on 2 March 2025.

• [18] Section 366 of the Act provides:

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position."

• [19] Each of the above matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[8] I set out my consideration of each element of section 366(2) below.

• [20] Ms Bonney gave evidence that she relied on her mother to assist her to file her application. Her evidence, which I accept, was that in the period following her dismissal she was emotional, and needed support and assistance to understand what sort of claim she could file and then to take the relevant steps to file the claim.

• [21] There was evidence given by Ms Bonney that during a period of time before and after her dismissal she was experiencing an acute mental health episode. This was confirmed in evidence given by her mother, Ms R Bonney, who told the Commission she had been contacted by Ms Bonney's school counsellor in the period following the dismissal to disclose the seriousness of Ms Bonney's mental illness and the grave manner in which her illness was manifesting at the time.[9] The seriousness of the Applicant's condition was also supported by photos taken around the time of the dismissal that showed physical effects of her illness.

• [22] Ms R Bonney told the Commission in her evidence that the Applicant had started counselling before her dismissal but in the period following her dismissal, Ms R Bonney had been informed by Ms Bonney's counsellor that she had had a serious decline in her mental health and was suffering from an acute mental health episode.

• [23] In the matter of Blanco v White Bathroom Co Pty Ltd[10] the Commission held:

"It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that it is very difficult for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit without proper and specific medical evidence."[11]

• [24] In this matter, the Applicant's capacity to complete and file her application is one of a number of circumstances relied on to explain the delay. Whilst there was no medical evidence given about Ms Bonney's illness and incapacity in the period following her dismissal there was corroborating evidence from Ms R Bonney and the documents referred to above regarding Ms Bonney's presentation. As medical evidence is not a requirement per se to establish incapacity, the Applicant's evidence and other corroborating evidence is sufficient in this matter to persuade me that Ms Bonney's illness provided a valid reason for the delay when considering the matter as a whole.

• [25] Ms Bonney gave evidence that she was aware there was a time limit in which to file a claim regarding her dismissal, but she could not articulate what the time limit was in her evidence. In any event, Ms Bonney said that she knew she was rushing to file a claim at a time when her "health started declining".[12] She said that she sat down at the computer with her mother "a week or two" after the dismissal[13] to complete the application, providing information that her mother entered into the Commission's online form.

• [26] Ms Bonney says that when it came to paying the filing fee, she left it to her mother to complete because she did not have money herself to pay the fee.[14]

• [27] Ms R Bonney gave evidence that she was going to pay the filing fee on her daughter's behalf and thought she had in fact done so after she had completed the form with her daughter. Ms R Bonney submitted a photograph she had taken of the computer screen after she believed she had made payment of the filing fee. The photograph shows that it was taken on 11 February 2025, one day before the 21-day statutory period expired.

• [28] Ms R Bonney said in her evidence that it is her usual practice to take a photograph or a screenshot of any transaction she undertakes online to retain as evidence should she later require it.

• [29] The photograph shows that Ms R Bonney was using the website services.fwc.gov.au. The photograph contains a box with a heading 'Invoice Payment', an invoice number, completed credit card details and an amount for payment. Underneath the box are much smaller buttons which say 'change details', 'cancel payment' and 'make payment.'

• [30] Ms R Bonney gave evidence that she had entered her credit card details on a separate page of the website and followed a prompt to move to the next screen which was the one in the photograph. Ms R Bonney said that she didn't see the further button 'make payment' and thought that by entering her credit card details and moving to the next screen that she had made payment of the filing fee. She then took the photo of the screen, but accepts that in her rush, she failed to see that the box referred to an invoice and not a receipt for payment. Ms Bonney said that her mother had shown her the photograph on 11 February 2025 after they completed the form together so they could be "confident that [the application] was sent in".[15]

• [31] Both the Applicant and Ms R Bonney gave evidence that after 11 February 2025, they regularly checked to see if an email acknowledging receipt had been sent by the Commission. Ms Bonney said that her mother asked her if she had heard anything in the days after 11 February 2025. Ms R Bonney's evidence was that she asked the Applicant to check her inbox and the junk folder in her email account to find an acknowledgement email.

• [32] After not receiving any communication from the Commission, Mrs R Bonney checked the photograph on her phone and realised that she had made a mistake in not clicking on the 'make payment' button. When she then revisited the application on the Commission's website, she saw that the application was saved under the 'my claims' page on the website and had not been submitted. Ms R Bonney then checked her bank records and could not see a withdrawal of the filing fee from her account. Ms R Bonney gave evidence that she then acted immediately to file the claim.

• [33] Ms R Bonney accepted that she was rushed in filing the claim within the 21 days. She explained that she is a single mother, caring for Ms Bonney and another daughter with an intellectual disability who is wholly dependent on her. Ms R Bonney told the Commission that she is working three different jobs over seven days a week to provide for her children. She also gave evidence that her father was diagnosed with cancer in late January or early February 2025 and started treatment after his diagnosis. Sadly, very soon thereafter he had a stroke and passed away in early March 2025. The initial diagnosis of Ms Bonney's grandfather's illness and commencement of treatment occurred around the time of Ms Bonney's dismissal.[16]

• [34] I accept Ms R Bonney's evidence that the combination of a number of exceptional stressors in her life, and the manifestation of the stress in her day-to-day life, caused her to overlook pressing the 'make payment button' to file the claim. There is evidence that she made a credible effort to file the claim within the statutory period, going as far as to include her credit card details, before mistaking the invoice for a receipt.

• [35] Ms R Bonney gave evidence about her own mental health history and treatment and told the Commission that her ability to cope was significantly compromised at the time of her attempt to file the claim for Ms Bonney. Ms R Bonney describes her state of mind at the time of attempting to file the application as being one of "pure stress and bereavement."[17] She relies on the evidence about all of the circumstances she was managing in her life to explain her error in filing the application. I accept Ms R Bonney's evidence about the events occurring following the Applicant's dismissal and her own state of mind at the relevant time.

• [36] The Respondent, in its written submissions opposing the granting of an extension, says that "Applicants are expected to take responsibility for ensuring their claims are submitted correctly and on time" and that Ms Bonney did not undertake "any follow-up or verification of the lodgement." The Respondent also submits that even though Ms Bonney is not an adult, that she has demonstrated her capacity to file the application by her preparation of a statement in these proceedings.

• [37] Whilst the Respondent is correct that it is the responsibility of the Applicant to file her application correctly and within the statutory time period, each case turns on its own facts. In this case the Applicant made a genuine attempt to file her claim within time. It is reasonable that a young person, still at school, would obtain help and assistance from a parent to commence and participate in a Commission proceeding. This is especially so in this case, given Ms Bonney's acutely poor mental health. Ms Bonney, after working with her mother to complete the form, reasonably relied on her mother's representations that she had paid and therefore filed her claim. I accept that Ms Bonney had a reasonable belief that the application had been filed.[18] The reasons for the failure to file the application correctly by Ms R Bonney in this case have also been explained. Upon becoming aware that the application had not been filed correctly, the Applicant and Ms R Bonney took prompt steps to file the claim.

• [38] I note the Respondent's assertion that Ms Bonney ought to have done more to follow up and verify the lodgement of her claim. However, there is persuasive evidence in this matter that this did not occur because of Ms Bonney's reliance on assistance from her mother, the status of her mental health and her grandfather's cancer diagnosis and treatment.

• [39] The Respondent referred to the Commission's decision in Officeworks Ltd v Parker[19] (Officeworks), a matter in which the delay in filing the application was caused by the Applicant's mother's incompetence in failing to send the application correctly by facsimile. The Full Bench held that the failure to correctly file the application by facsimile was not, "of itself such an unusual or special occurrence as to support a conclusion that there were exceptional circumstances".[20]

• [40] In Officeworks, the Full Bench considered whether the principles underpinning a claim of 'representative error', advanced as valid reason for delay and an exceptional circumstance, apply similarly when a party's representative is a family member or friend and not a representative with professional qualifications or expertise in dealing with legal and employment matters. The Applicant did not assert in this case that her mother was her representative at the time of filing the application[21] or that her mother's failure to file the application was representative error such that it also constituted an exceptional circumstance.

• [41] The explanation for the delay in Officeworks, as it was recounted by the Full Bench, was a failure by the applicant's mother to correctly send a facsimile. The circumstances of this matter are more complex than those in Officeworks. Ms Bonney is a young worker, still at school, who was very ill around the time she was dismissed. Despite her vulnerabilities, the Applicant took steps to file her claim, assisting her mother to complete the online form. Ms Bonney had to rely on assistance from her mother; she was advised by her mother that the claim had been filed and then reasonably believed it had been. When it came to light that the application had not been filed within the statutory time period, I accept it was then very promptly filed with the Commission.

• [42] All of these circumstances, when considered together, provide a reasonable explanation for the delay in filing the application.

• [43] In my view, the combination of factors in this matter that provide a valid reason for the delay in filing the application within the statutory time period weigh heavily in favour of a finding that exceptional circumstances exist in this case.

Any action taken by the person to dispute the dismissal

• [44] There is no evidence before me that the Applicant took steps to dispute her dismissal, other than by lodging this claim.

• [45] Taking into account the broader circumstances experienced by the Applicant at the time of her dismissal, I find that this factor is neutral in my decision.

• [46] The Respondent submitted that "[t]he delay has caused administrative and legal burdens to the business", but did not particularise any prejudice.

• [47] I find this consideration to be neutral in my decision.

• [48] The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[22] Further, the primary consideration is whether the Applicant has an arguable case.[23]

• [49] There is insufficient evidence before me for me to form even a preliminary view about the merits of the matter. The Applicant asserts she was dismissed primarily because she queried her rate of pay with Ms Yuan, in breach of the general protections provisions of the Act. Ms Yuan submitted that she was unaware of the dismissal until after it had been communicated to the Applicant, and that Ms Billet, the store manager who dismissed the Applicant, lacked the authority to dismiss Ms Bonney. There is no evidence before me as to whether Ms Billett was aware of the Applicant's queries regarding her rate of pay, such that it could be said to have been a factor in her decision to dismiss the Applicant.

• [50] Consequently, this factor is neutral in my decision.

Fairness as between the person and other persons in a like position

• [51] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[24] considered this criterion and said:

"Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission."[25]

• [52] I have applied the considerations I am required to under section 366 of the Act. This case turns on its own facts, as is the case with most matters of this kind before the Commission. This consideration is therefore neutral in my decision.

• [53] I have accepted that the explanation advanced by the Applicant for the delay in filing her claim provides a valid reason for that delay. This factor weighs strongly in favour of a finding that exceptional circumstances exist in this case. The other factors are neutral in my decision.

• [54] For an extension of time to be granted, the Commission must first find that exceptional circumstances exist. The relevant legal test to find whether exceptional circumstances exist is set out in the matter of Nulty v Blue Star Group Pty Ltd[26]:

"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."[27]

• [55] There is not one circumstance in this case that on its own could be described as exceptional. Rather, it is the combination of circumstances that when considered together are exceptional because they produce a situation which is out of the ordinary and uncommon. Ms Bonney is 16 years old and, around the time of her dismissal, was acutely and seriously unwell. On account of these circumstances, the Applicant appropriately relied on assistance from her mother, who supported the Applicant in an effort to file the application. The Applicant and her mother took genuine steps to complete the application within the statutory time period. This was supported by documentary evidence. After her mother told Ms Bonney that she had filed the application, Ms Bonney reasonably believed that her claim had in fact been filed. In these circumstances, the Applicant took appropriate action to file her claim and had limited control over whether it was ultimately filed on time.

• [56] As I have found that exceptional circumstances exist in this matter, I consider it appropriate to exercise my discretion to extend the time for the Applicant to file her claim.

• [57] The matter will now proceed to a conciliation conference, convened under section 368 of the Act.

R Bonney, on behalf of the Applicant, L Bonney.

[1] Email from Respondent to Applicant, 6 January 2025 at 3:05pm.

[2] Respondent's Form F3 at section 1.2 and 3.1.

[3] Email from Applicant to Respondent, 5 January 2025 at 6:07pm.

[4] Email from Applicant to Respondent, 6 January 2025 at 3:08pm.

[6] Email of warning letter from the Respondent to the Applicant, 14 January 2025 at 12:40pm.

[7] Email from Respondent to Applicant, 22 January 2025 at 3:09pm.

[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[9] Audio recording of hearing at 30:26 - 31:00.

[10] [2021] FWC 4694.

[12] Audio recording of hearing at 8:25.

[18] See Bosschieter v CSA Services (Jones Family Trust) T/A CSA Services [2018] FWC 1490 at [39].

[19] [2014] FWCFB 5779.

[21] The Applicant did not name her mother as her representative in the Form F8.

[22] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at paragraph [14].

[23] Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34].

[24] [2016] FWCFB 6963.

[25] Ibid at paragraph [41]. See also Higgins v FQM Australia Nickel Pty Ltd [2023] FWC 750.

[26] [2011] FWAFB 975.

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