s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

• [1] This decision concerns an application by Ms Rachel Carra (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

• [2] While in hospital for surgery on 19 November 2024, Ms Carra received a text message advising her that her services would no longer be required by the Respondent, and she was dismissed. Ms Carra lodged her F2 unfair dismissal application form with the Fair Work Commission (Commission) on 19 February 2025.

• [3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 10 December 2024. The application was therefore filed more than 60 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request and raises an objection that the application should be dismissed on the account of the dismissal being a genuine redundancy.

• [4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. 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.[1] 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.[2]

• [5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(b) whether the person first became aware of the dismissal after it had taken effect;

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

(d) prejudice to the employer (including prejudice caused by the delay);

(f) fairness as between the person and other persons in a similar position.

• [7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

• [8] The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an Applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the Applicant's favour, however, all of the circumstances must be considered.[3]

• [9] The Applicant acknowledges that her application was filed out of time. She submits that the reasons for this delay are that she was being treated for a significant medical condition and recovering from surgery and hospitalisation; she had caring responsibilities for her 3 children and that she had contacted the Fair Work Ombudsman (FWO) the day after her dismissal and followed their advice. When it became apparent that settlement of her grievances could not be reached with the Respondent, on 15 February 2025, she took steps to file this application with the Commission and did so 4 days later.

• [10] The Applicant has provided oral evidence and supporting material to the Commission to substantiate her submissions. This evidence clearly establishes that she was hospitalised just prior to the relevant period and has been dealing with a significant medical issue that has had a significant impact. I accept this evidence.

• [11] Similarly, I accept this reality would have had an impact on the Applicant's capacity to file her unfair dismissal application on time. Furthermore, I recognise that this impact would have been compounded by her family caring responsibilities and the loss of her job.

• [12] I have also considered the Applicant's evidence that she contacted "Fair Work" the day after her dismissal about this matter and her alleged underpayments and followed their advice. In the hearing, the Applicant accepted that she first contacted the FWO about underpayment concerns in early 2024 and it was the FWO that she contacted on 20 November 2024. Following the FWO's advice, she commenced discussions with the Respondent in an attempt to reach a settlement to her concerns. The Applicant's evidence is clear that she was acting to pursue her underpayment claims and dismissal dispute when she replied to the Respondent's message regarding her dismissal, indicating - "Hoping we do not have to go down that road and can work out a payment to what I'm owed". [4]

• [13] It is not disputed the parties have been engaged in discussions about resolving alleged underpayment concerns with the assistance of the FWO since the dismissal. I accept this to be the case. I also accept that the Applicant contacted the FWO the day after her dismissal and thereafter initiated these discussions following the advice of the FWO.

• [14] This evidence indicates the Applicant was able to engage in the process of pursing her claims of underpayment and grievances with her dismissal after her dismissal, during the 21-day period and thereafter. It does not support a conclusion that the circumstances she was confronted with impacted her capacity to engage with the legal or administrative process, pursue her rights or file her application for unfair dismissal with the Commission on time.

• [15] The Applicant submits that she did not file her application because she followed the advice of the FWO to have discussions with the Respondent. Further, she asserts that she made her application as soon as it became clear to her that these discussions would not result in a satisfactory resolution.

• [16] Despite these submissions, the Applicant has not provided any supporting evidence in the form of emails from the FWO, or otherwise, that support her versions of events. Nor does she make any substantive submissions that she was not aware of her rights or not aware of the requirement of filing her application to the Commission within the required time. Even if this had been the case, I would have regard to the established principle that ignorance of one's rights is not usually an acceptable reason for delay.

• [17] The evidence is that immediately following her dismissal, the Applicant contacted the FWO and thereafter engaged in discussion with her employer to address her grievances. It is clear that she was capable of this and actively engaged in these discussions. However, I accept this process was impacted by the Applicant's caring responsibilities and medical condition.

• [18] I do not accept, however, that the Applicant has presented any evidence of "exceptional circumstances" of why she did not at the same time, or otherwise within the required 21-day period file her application with the Commission.

• [19] Nor do I accept there is anything "exceptional, "out of ordinary course" or uncommon about her circumstances that distinguishes her case from many others placed in similar situations. In this regard, I note it is well established it is common for people who have lost their job to suffer negative impacts, including stress and anxiety and financial strain.[5]

• [20] It follows that I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

Whether the person first became aware of the dismissal after it had taken effect

• [21] The Applicant's submissions and supporting materials make it clear she became aware of her termination on 19 November 2024 by text message. Therefore, the Applicant had the full 21-day period to lodge her unfair dismissal application.

• [22] I have considered the Applicant's suggestion that she did not file her application because she was following the advice of the FWO. As indicated, I have not been convinced of this submission and no evidence has been provided to support it. I have also had regard to the fact that the jurisdiction of the FWO does not extend to remedy for those unfairly dismissed.

• [23] I therefore consider this factor weighs against the granting of an extension of time.

• [24] The Applicant submits that she contacted the FWO the day after her dismissal and engaged in discussion with the Respondent to reach a resolution thereafter. The Respondent rejects this contention and maintains that, while these discussions occurred, they were in relation to the underpayment claims and not an alleged unfair dismissal.

• [25] I have considered the evidence and submission on this factor. I accept it is clear on the evidence that the Applicant referred to 'unfair dismissal' in her post termination communication with the Respondent. Her oral evidence is clear that she was seeking a resolution to all grievances - her underpayments and termination. I accept this evidence and consider this factor weighs in favour of the Applicant.

• [26] The Applicant submits that there is no prejudice arising for the respondent should her application be permitted to proceed. The Respondent submits that allowing the application to proceed despite its objections that it is out of time and that this was a case of genuine redundancy gives rise to a prejudice against the employer. I have considered these submissions, and I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of an extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances and consider this a neutral factor.

• [27] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed, and I do not repeat them here. In short, the Applicant's submissions are that she was in hospital the day that she was dismissed by text message. She asserts that she had asked her employer just days before if she was being dismissed and was told this was not the case. The Applicant submits that this suggests she has been terminated because of concerns she had raised and intended pursuing alleged underpayments.

• [28] The Respondent's position is that the termination was the result of a genuine review of the business' operational needs and the resulting decision that it no longer required the Applicant to perform work. It is submitted that her termination was a genuine redundancy.

• [29] Having examined these materials, it is evident to me that the merits of the Application may turn on contested points of fact which would need to be tested if an extension of time were granted, and the matter were to proceed.

• [30] That said, it remains premature to make any firm or detailed assessment of the merits. Accordingly, I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

• [31] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

• [32] Neither party brought any other relevant matter or decision of the Commission concerning this matter to my attention in submissions or at the hearing. I have not considered material provided after the hearing adjourned and this decision was reserved.

• [33] My conclusion is that this is a neutral consideration.

• [34] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, in my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[4] Text message from Applicant to Chris Watson, Court Book page 26.

[5] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

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