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[40]
[2026] FWC 1266
General information, not legal advice.
Fair Work Commission
2026-04-14
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Australia and New Zealand Banking Group Limited
Application for an unfair dismissal remedy - application filed out of time - whether information obtained after dismissal satisfactory reason for delay - no exceptional circumstances - application dismissed
[1] Mr Jouhs Van Leeuwen (the applicant) started employment with Australia and New Zealand Banking Group Limited (ANZ; the respondent/employer) in January 2024. In September 2025, ANZ proposed a restructure that affected 11 teams within its Retail Division, including Mr Van Leeuwen's team (Customer Service Operations). As part of the restructure, Mr Van Leeuwen applied for an alternative role, but he was not successful. He was then informed that his employment would end due to redundancy, and it ended on 11 December 2025.
[2] Mr Van Leeuwen applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) on 18 February 2026. This was 69 days after his dismissal took effect and 48 days after the end of the statutory time period for making such an application. In order for Mr Van Leeuwen's application to proceed, the Commission must be satisfied that there are exceptional circumstances (having regard to the factors in section 394(3) of the Act) to allow further time for him to have made his application.
[3] I held a determinative conference on 8 April 2026. Mr Van Leeuwen gave evidence on his own behalf. Ms Melissa Hendrickson, Fraud and Scams Portfolio Lead in Consumer Protection for ANZ, gave evidence on behalf of the respondent. Both parties had filed materials prior to the hearing. Mr Van Leeuwen filed multiple witness statements. Some of those statements were anonymous. None of the people who provided witness statements attended the determinative conference to confirm their statements. As such, I give no weight to the witness statements.
[4] Having considered all the oral and written submissions and evidence, I am not satisfied that there are exceptional circumstances to allow a further period for the application to be made. The application is dismissed. My reasons follow.
[5] The facts are not substantively in dispute between the parties.
[6] Mr Van Leeuwen's role with ANZ was Operations Team Lead for the Fraud Support Team in ANZ's Australia Retail Division. His role was classified at Group 4.4 Level. His team included 15 permanent employees.
[7] On 9 September 2025, Ms Hendrickson met with Mr Van Leeuwen and advised him of the impact that proposed changes would have on his role. The proposed changes also affected many more people than Mr Van Leeuwen. In respect of his role, ANZ said that it proposed to remove his role and disperse his responsibilities across teams. ANZ said it was seeking to align its fraud and customer protection operating model which had previously been into 2 different platforms or interfaces depending on how the customer interacted with ANZ - ANZ Plus or ANZ Classic. Mr Van Leeuwen's role had been solely ANZ Plus.
[8] From 12 until 25 September 2025, ANZ engaged in formal consultation. As part of the consultation, Mr Van Leeuwen was provided with an organisational chart for the proposed changes and invited to submit preferences for available roles.
[9] On 1 October 2025, Mr Van Leeuwen applied for a role called Team Manager, Customer Protection which was classified at Group 4.3 Level.
[10] ANZ informed Mr Van Leeuwen on 27 October 2025 that he was not successful for that role. He was informed that his role would no longer exist in the future structure from 14 November 2025. He was not required to continue his usual work tasks and duties from that date until his employment ended to enable him to use ANZ's "career support and [explore] opportunities within ANZ and externally."
[11] Mr Van Leeuwen's employment ended on 11 December 2025.
[12] Mr Van Leeuwen did not dispute his dismissal until he filed this application on 18 February 2026.
Factors that weigh against a finding of exceptional circumstances
[13] I consider the following factors to weigh against a finding of exceptional circumstances:
[14] The reason why Mr Van Leeuwen says there are exceptional circumstances is that around 16 February 2026, he became aware that the role of Team Manager, Customer Protection was permanently filled, and he came to the view that it had the same function and was substantially the same as his role. Mr Van Leeuwen came to this view after some of his former team members informed him that "nothing had changed," that they managed the same customer set and performed the same function. After Mr Leeuwen became aware, he delayed no further and made his application.
[15] I do not accept that the reason provided by Mr Van Leeuwen is a satisfactory reason for his delay. There have been prior decisions that deal with circumstances where an employee dismissed on the grounds of redundancy receives new information that leads them to question whether the redundancy was genuine. I deal with those decisions further under the heading relating to 394(3)(f). In short, each matter turns on its own facts.
[16] In Mr Van Leeuwen's circumstances, he was well aware of the role. The new information that he says he received is that the role was permanently filled but nothing had changed for some team members whom he had previously managed. The information about the role that was filled was available to Mr Van Leeuwen before he was dismissed; he applied for it. It was not the same role as it was graded at a higher level, was situated differently in the organisational restructure and had responsibilities across the different platforms or applications by which ANZ customers accessed the bank's services. Mr Van Leeuwen was provided with the 'future state' organisational structure on 25 September 2025, at the conclusion of the formal consultation period. Mr Van Leeuwen's employment ended on 11 December 2025.
[17] Mr Van Leeuwen did not consider at the time that the restructure was not genuine. He did give evidence that he raised some concerns with his new line manager in the final 2 weeks of his employment. But he also said that he was "staunchly opposed," so he backed down and left it there. Mr Van Leeuwen did not give evidence about what those concerns were but also referred to his concern that his team was only informed of his departure days before he left. Whatever those concerns were, they were known to Mr Van Leeuwen at the time that his employment ended and well before the expiry of the 21-day statutory time limit.
[18] In relation to the new information, Mr Van Leeuwen gave evidence that he obtained that new information at a personal event that he attended in February 2026 that was also attended by some of his former team members. His evidence is that he spoke with multiple former team members, but not in detail. His team members informed him that the team lead role was filled but that their functions had not changed. I do not consider that the information he received was probative or relevant to whether the team lead role was the same as his former role, such as to render his redundancy not genuine. The relevant information was that it had been filled. Mr Van Leeuwen already knew the role existed. While he spoke to multiple former team members, it was in passing at a social function and about their roles, not the team lead role.
[19] As I do not consider that Mr Van Leeuwen has provided a satisfactory reason for his delay, this factor weighs against a finding of exceptional circumstances.
[20] Mr Van Leeuwen was aware of his dismissal when it took effect and for about 3 months prior. ANZ had engaged in a process of consultation from mid-September 2025. ANZ informed Mr Van Leeuwen on 9 September 2025 that his role was affected by proposed changes. On 27 October 2025, Ms Hendrickson wrote to Mr Van Leeuwen and informed him that he had been unsuccessful in his application for the Team Lead role, that his employment would end by way of redundancy, and of his redeployment options. He was then employed for a further month and a half before his employment ended.
[21] Mr Van Leeuwen did not take any action to dispute his dismissal. He says that at the time, he believed the restructure to be genuine. As detailed above, Mr Van Leeuwen did raise concerns about the end of his employment sometime during the 2 weeks before his employment ended. I have no evidence that he took any other action to dispute his dismissal until he filed this application.
[22] I consider the following factors to be neutral (that is, they neither weigh in favour nor against a finding of exceptional circumstances):
[23] The delay of 48 days is neither a long nor a short period of time, but it is more than double the statutory period. No more than the usual prejudice of having to respond to an application would arise if I allowed Mr Van Leeuwen further time to make his application. Lack of prejudice does not mean that this factor weighs in favour.
[24] The Full Bench in Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 at [38] said: "It is well established that the Commission should not embark upon a detailed consideration of the merits of the substantive case in determining whether to grant an extension of time." I do have a fair degree of detail from ANZ about the process it engaged in prior to dismissing Mr Van Leeuwen, but the parties were not required to file any materials relating to the fairness of the dismissal. Based on the material available to me, I do not consider that Mr Van Leeuwen has a strong case, but nor is it entirely unarguable.
[25] Fairness as between the person and other persons in a similar position relates to ensuring the application of consistent principles and may relate to matters currently before the Commission or matters previously decided by the Commission: see Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41]. The Full Bench in Croker v Erndit Logistics Pty Ltd [2023] FWCFB 224 at [49] indicated that this factor may involve a comparison of cases involving similar facts.
[26] A number of prior decisions have found exceptional circumstances and granted an extension of time where an applicant had a satisfactory reason for delay where they receive new information so as to question the genuineness of their dismissal for redundancy (such as an advertisement for a role that is the same as or substantively similar to their role): Smith v Penrite Oil Company [2020] FWC 3446; Perret v Ayers Real Estate [2020] FWC 2981; Norris v Bre Employment1 Pty Ltd [2024] FWC 2337; Lineburg v Act Accountants T/A Accumul8 Accountants [2024] FWC 1222; Hill v The Phoenix Unit Trust [2025] FWC 2818.
[27] However, in other decisions, the Commission has not found that seeing advertisements for roles that were similar to or closely resembled the applicant's former role weighed in favour of a finding of exceptional circumstances: Harris v Musarubra Australia Pty Ltd [2022] FWC 2737; Jeanes v ADT Security Group Pty Ltd [2025] FWC 4; Roberts v UW Aggregation Pty Ltd [2025] FWC 3175; Ashworth v ALS Metallurgy Pty Ltd [2026] FWC 427.
[28] In Schneider v Apollo Motorhome Holidays Pty Ltd [2015] FWC 482 at [10], Vice President Hatcher (as he then was) accepted that the applicant "had a reasonable explanation for her delay" "insofar as [the applicant] contends that her dismissal was unfair because it was not a genuine redundancy in that her position appeared to still be required to be performed by [the employer]." Despite concluding at [19] that "the discovery by [the applicant] of information relevant to her dismissal on the grounds of redundancy which caused her to doubt the genuineness of that redundancy was sufficiently unusual to constitute exceptional circumstances," the Vice President did not grant an extension of time. The Vice President considered that it would not be fair and equitable to do so because the applicant took no action to contest or question her dismissal, the principal aspect of the applicant's case (that the employer still required her position) was without merit and the other aspects of the applicant's case that the Vice President assessed to have merit were known to her before the expiry of the 21-day time limit: [20]. The Vice President's decision was not disturbed on appeal: Schneider v Apollo Motorhome Holidays Pty Ltd [2015] FWCFB 1259.
[29] An assessment about whether there are exceptional circumstances in any particular case depends on the facts of that case and a consideration of all the factors, assigning appropriate weight to each. I have found guidance from the prior relevant decisions. Many share similarities to Mr Van Leeuwen's circumstances, but also differences. A significant difference is that Mr Van Leeuwen was already aware of the new Team Lead role prior to his employment ending. I consider this factor to be neutral.
[30] The legislature has chosen to curtail the right to seek an unfair dismissal remedy with a strict and short time limit for applications, as well as a high hurdle that an applicant must overcome to be allowed further time to file applications. That high hurdle is exceptional circumstances, which is not defined in the Act. A Full Bench of the Commission in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13] has said that "exceptional circumstances" means out of the ordinary, unusual, special, or uncommon. Whether the Commission can be satisfied that there are exceptional circumstances is a discretionary decision, requiring a consideration of all the relevant factors: see Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 at [61]. I have considered the factors singly and together, but am not satisfied that there are exceptional circumstances, so I cannot allow Mr Van Leeuwen further time to have made his application.
[31] I order that Mr Jouhs Van Leeuwen's application for an unfair dismissal remedy under FWC Matter U2026/2249 be dismissed.
Printed by authority of the Commonwealth Government Printer
Mr Jouhs Van Leeuwen
Australia and New Zealand Banking Group Limited [2026] FWC 1266