s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed 3 days out of time - circumstances not exceptional - extension not granted - application dismissed.

• [1] On 3 May 2025, Ms Monika Hudziak-Lubomirska made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), by lodging a Form F2 - Unfair dismissal application (Form F2). The Respondent named in the Form F2 is Alsco Pty Limited (Respondent).

• [2] The Form F2 lodged asserted that Ms Hudziak-Lubomirska was notified of her dismissal and that the dismissal took effect on 10 April 2025. At the determinative conference on 2 June 2025, it became apparent that the Respondent advised Ms Hudziak-Lubomirska that she was dismissed at a meeting held on the previous day, 9 April 2025. While Ms Hudziak-Lubomirska relied on the terms of s.117 of the Act to assert that an employer must not terminate an employee's employment without giving written notice, a dismissal takes effect when it is communicated to an employee and the employee knows, or at least has a reasonable opportunity to know, that they have been dismissed.[1] In this case, I am satisfied based on what was outlined by both Ms Hudziak-Lubomirska and Mr Robert Ruitinga, the Respondent's Regional General Manager, that Ms Hudziak-Lubomirska was notified that she had been dismissed with immediate effect at the meeting on 9 April 2025, that she knew this was the case, and that the letter that Ms Hudziak-Lubomirska received on 10 April 2025 was simply confirmatory in nature.

• [3] The period of 21 days to make application for an unfair dismissal remedy provided for in s.394(2)(b) ended, therefore, at midnight on Wednesday 30 April 2025. The application filed by Ms Hudziak-Lubomirska on 3 May 2025 was made 3 days outside this 21-day period. Ms Hudziak-Lubomirska therefore requires the Commission to allow her an extension of time (s.394(2)(b)).

• [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.[2] 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.[3]

• [5] 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.

• [6] 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.

• [7] 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 the circumstances must be considered.[4]

• [8] The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 30 April 2025.

• [9] However, the circumstances from after the time of the dismissal on 9 April 2025 must be considered when assessing whether there is a credible reason for, in this case, the 3-day delay, or any part of that delay, beyond the 21-day period.[5]

• [10] Ms Hudziak-Lubomirska outlined a challenging and distressing family background that preceded her dismissal which involved her son's drug addiction and resultant behaviour. In particular, Ms Hudziak-Lubomirska said that his behaviour had previously escalated to a point where she had obtained family violence intervention orders against him.

• [11] Ms Hudziak-Lubomirska said her ensuing depression and anxiety from these circumstances was exacerbated by a stressful period at work, such that she consulted her General Practitioner in early March 2025, was prescribed anti-depressant medication on 4 March 2025 and was certified unfit for work from 5-7 March 2025 and 11-12 March 2025. Ms Hudziak-Lubomirska also said that the circumstances associated with her son had become such that she was constantly searching for him at various locations due to her concerns for his welfare and that this continued until 15 April 2025, when she was informed that he was being detained in a regional correctional facility. Ms Hudziak-Lubomirska said that during this period (and since) she has suffered from anxiety and found it difficult to sleep, eat or think clearly. She said that she twice consulted her General Practitioner during April 2025.

• [12] Ms Hudziak-Lubomirska further outlined that during the week leading into the Easter Long Weekend, a friend of her daughter had suggested that he could refer her to a lawyer who specialised in unfair dismissal claims. Ms Hudziak-Lubomirska said that as a result of this, she was, on the one hand, waiting for the lawyer to contact her but, on the other, it was not until Saturday 3 May 2025 that she was provided with the lawyer's contact details.

• [13] In any event, both Ms Hudziak-Lubomirska and the lawyer[6] confirmed that Ms Hudziak-Lubomirska contacted the lawyer by telephone on 3 May 2025. Ms Hudziak-Lubomirska said that as a result of this contact, she discovered for the first time that there was the 21-day period within which to make an unfair dismissal application, that she was therefore out of time and that she should therefore immediately make an unfair dismissal application. This she did, filing the Form F2 at 9.17pm on 3 May 2025.

• [14] Ms Hudziak-Lubomirska also complained of having had her telephone and laptop computer "confiscated" and having been forced to request her separation certificate on a number of occasions because of the Respondent's failure to respond to her queries and provide this. As to these matters, I note that Ms Hudziak-Lubomirska had access to a computer because she was able to send email correspondence during the 21-day period that followed her dismissal and ultimately file an online Form F2. Further, I do not consider waiting for a separation certificate from the Respondent provides a reasonable or acceptable explanation for the delay. Ms Hudziak-Lubomirska was not precluded from making application while awaiting receipt.

• [15] As to the other matters raised, I accept that the circumstances regarding Ms Hudziak-Lubomirska's son have caused her great distress but I am not persuaded they were such as to render her incapable of preparing and filing an unfair dismissal application. Those circumstances had emerged and persisted well prior to Ms Hudziak-Lubomirska's dismissal and since their emergence, she had obtained the family violence intervention order against him in June 2024 and continued in employment until her dismissal in April 2025. Secondly, by the sixth day after her dismissal had taken effect, Ms Hudziak-Lubomirska knew the whereabouts of her son and significantly, she knew that he was no longer at large and able to disturb her at home in a drug-affected state. At this point in time, Ms Hudziak-Lubomirska still had 15 days to make an unfair dismissal application within time.

• [16] I have noted that Ms Hudziak-Lubomirska had been experiencing difficulty in sleeping and was taking prescription anti-depressant medication at the time of her dismissal. I further note that during the period that followed, she reported feeling drowsy. Beyond stating that she consulted her General Practitioner, Ms Hudziak-Lubomirska produced no evidence suggesting that she was undertaking any medical treatment for her condition beyond stating that they had subsequently discussed whether there were other medication options. I accept Ms Hudziak-Lubomirska experienced stress and a negative reaction as a result of her dismissal however this is not of itself unusual. Stress, anxiety, shock and a degree of trauma from a dismissal are not uncommon reactions.

• [17] In any event, I am not persuaded Ms Hudziak-Lubomirska's reaction to her dismissal, or the drowsiness she was experiencing after it rendered her so debilitated and unfocussed that she could take no steps to prepare an unfair dismissal application. In fact, Ms Hudziak-Lubomirska was able to send email correspondence to Mr Ruitinga regarding her separation certificate on 3 occasions during the 21-day period after her dismissal had taken effect. She was also able to prepare and file the Form F2 on 3 May 2025 only a few hours after discussing her circumstances with the lawyer.

• [18] In relation to the lawyer's place within the factual background, I do not consider Ms Hudziak-Lubomirska has provided an acceptable or reasonable explanation for the period of approximately 17 days that passed between the friend of her daughter offering to refer her to the lawyer and her first contact with that lawyer on 3 May 2025, even if the Easter long weekend, Passover and the Anzac Day public holiday are taken into account. I consider that Ms Hudziak-Lubomirska failed to take action more promptly and the 3-day delay eventuated because she was unaware there was 21-day time period within which to make an unfair dismissal application until she spoke with the lawyer. While I can accept Ms Hudziak-Lubomirska may not have had prior experience with either the unfair dismissal laws and processes, or dealing with the Commission, it is well established that ignorance of one's rights will not usually provide an acceptable explanation for a delay in lodging an unfair application within the time prescribed[7] and unfamiliarity is not exceptional. Unfair dismissal applications can be and are routinely made without legal or other professional advice by reference to the Commission's website. The website is replete with material designed to assist members of the public to prepare and lodge applications or obtain assistance. As outlined above, Ms Hudziak-Lubomirska was also able to prepare and file the Form F2 on 3 May 2025 within a matter of hours.

• [19] Having regard to the evidence before me, I am not persuaded there were circumstances within the 21-day period prescribed for making an unfair dismissal application that provide a credible reason for the 3-day delay. Nor do I consider there was an acceptable or reasonable explanation for the 3-day delay. The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

Whether Ms Hudziak-Lubomirska became aware of the dismissal after it had taken effect - s.394(3)(b)

• [20] I am satisfied that Ms Hudziak-Lubomirska became aware of her dismissal with immediate effect when it was communicated to her on 9 April 2025. Ms Hudziak-Lubomirska had the full period of 21 days to lodge her unfair dismissal application, such that this consideration is a neutral consideration.

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

1. Action taken by an employee to dispute a dismissal, other than lodging an unfair dismissal application, may weigh in favour of granting an extension of time.[8] I am satisfied that when being notified of her dismissal by Mr Ruitinga during the meeting on 9 April 2025, Ms Hudziak-Lubomirska disputed the dismissal. I also note that while Ms Hudziak-Lubomirska corresponded with Mr Ruitinga in relation to commission payments and the provision of a separation certificate following her dismissal, this correspondence contained no challenges to her dismissal. Further, both Ms Hudziak-Lubomirska and Mr Ruitinga confirmed that they did not converse at any time after 9 April 2025.

• [22] I am prepared to find that as Ms Hudziak-Lubomirska took some action to dispute her dismissal on the day she was told about it. This factor weighs in favour of a finding that there are exceptional circumstances, but not to any significant degree.

• [23] Ms Hudziak-Lubomirska submits there will be no prejudice to the Respondent as a result of the delay.

• [24] While the Respondent complained of the disruption, cost and uncertainty it has experienced as a result of Ms Hudziak-Lubomirska's unfair dismissal application, and its lateness, the Commission's consideration of this criterion looks to prejudice beyond the usual requirement of having to respond to a claim. In this case, I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. This consideration is a neutral consideration.

• [25] I am required to "take into account" the merits of the application in considering whether to extend time so some assessment of the merits must be made. However, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.

• [26] The material before me clearly indicates that there is significant factual dispute when it comes to the circumstances preceding Ms Hudziak-Lubomirska's dismissal. As such, I am not able to form a concluded view about the merits of the application. Ms Hudziak-Lubomirska carefully outlined various matters in chronological order which prosecuted the unfairness of her dismissal. In particular, she contended that having raised issues and grievances with the Respondent, these were used against her. The Respondent has raised matters going to its contention that there was a valid reason for Ms Hudziak-Lubomirska's dismissal, asserting that Ms Hudziak-Lubomirska's termination was 'for cause' after she had been given warnings for ongoing behavioural and performances concerns but had failed to achieve the required standard of behaviour. The Respondent otherwise asserted that Ms Hudziak-Lubomirska had been afforded procedural fairness.

• [27] I consider the evidence of both parties would need to be tested, including under cross-examination, if an extension of time was granted and the matter was to proceed. The merits of the application would depend on factual findings made at the final hearing. I therefore consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position - s.394(3)(f)

• [28] 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. Neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In this case, this consideration is a neutral consideration.

• [29] The requirement that there be exceptional circumstances before time can be extended under s.394(3) of the Act 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.

• [30] The task before me in determining whether to grant this extension of time application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, which although a case concerning an extension of time for a general protections application under s.366(2) of the Act, aptly outlined:

"[38] 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.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. 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 relevant matters and the assignment of appropriate weight to each."[9]

• [31] Having regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, I am not satisfied that there are exceptional circumstances. 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, Ms Hudziak-Lubomirska's unfair dismissal application is dismissed.

Melbourne (in person and by Video using Microsoft Teams):

[1] Ayub v NSW Trains [2016] FWCFB 5500.

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

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

[5] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

[6] In an unsworn statement submitted to the Commission by Ms Hudziak-Lubomirska - see Digital Court Book at p.27.

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

1. [8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
2. [9] [2018] FWCFB 901.

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