s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy-application lodged late-consideration as to whether to extend time-circumstances not exceptional-application dismissed

• [1] Mrs Jagdeep Kaur Gill (the Applicant) commenced employment with Cranbourne ONE Early Education Group Pty Ltd (the Respondent) on 20 March 2023. She was employed in the position of an early childhood teacher.

• [2] The reason given by the Respondent for the decision to terminate the Applicant's employment was serious misconduct. Specifically, that the Applicant left 5 children in her care unsupervised for approximately 15 minutes, in breach of the relevant national law and quality standards.

• [3] The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). That application was lodged on 9 February 2025.

Application was filed outside the statutory timeframe

• [4] Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.

• [5] The Applicant in her Form F2 stated the dismissal took effect on 15 January 2025. At the hearing, the Applicant claimed the dismissal took effect on 16 January 2025, the date she received the letter of termination from her employer. The Applicant accepts that she attended a meeting with the managers of the Respondent, including Ms Tagg who is the State Manager, on 15 January in order to respond to the allegation that she had left some children unsupervised. However, her evidence was that she was not told she was dismissed at that meeting, rather that she was only told to go home. Ms Tagg, who was at the 15 January meeting, gave clear evidence that she told the Applicant at that meeting that her employment was terminated, that a letter confirming that would be sent the following day and that the Applicant should take her things and leave. When this evidence was put to the Applicant, she changed her evidence somewhat to say that Ms Tagg and her colleague "discussed" her termination including sending her a letter of termination. This evidence was simply not credible, and I don't accept it. I prefer the evidence of Ms Tagg that the Applicant was told in clear terms her employment was terminated on 15 January 2025.

• [6] Based on a termination date taking effect on 15 January 2025, the application for a remedy should have been lodged by no later than 5 February 2025.

• [7] The application was therefore lodged outside of the time prescribed. The application was made in effect, 4 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

• [8] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

• [9] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
  • the reason for the delay,
  • whether the Applicant first became aware of the dismissal after the date it took effect,
  • any action taken by the Applicant to dispute the dismissal,
  • prejudice to the Respondent including prejudice caused by the delay,
  • the merits of the application; and
  • fairness as between the Applicant and other persons in a similar position.
• [10] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. 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. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.[1]

• [11] 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 or unprecedented, nor do they need to be very rare.[2] I must be satisfied that, taking into account section 394(3) that there are exceptional circumstances.

• [12] I now consider these matters in the context of the Application.

• [13] 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]

• [14] In the F2 the Applicant accepted that the application was not lodged in time. The reason given in the F2 was as follows, "I was hesitant to lodge a complaint as I was worried about the potential consequences for my mental health and for my future. My family and my mentor urged and supported me therefore I contacted the department of education to lodge a complaint against the centre. The department the[n] passed on the information about fair Work Australia to me."[4] I have considered this explanation and find that this is not an acceptable reason for the delay. Essentially, this explanation suggests that the Applicant delayed taking any action and did not know about the ability to lodge an unfair dismissal application until being advised by the Department of Education. A lack of awareness of the right to lodge an unfair dismissal application and the timeframe for doing so is not an acceptable reason for the delay.

• [15] However, in her witness statement filed in response to the directions set for the determination of the extension of time application, the Applicant claimed her "first and foremost reason"[5] for the delay was health concerns. These health concerns are high blood pressure, anxiety and a spinal condition which causes head, neck, shoulder and arm pain. She was prescribed pain medication which she said causes drowsiness.

• [16] I'm not satisfied the Applicant was precluded from making an unfair dismissal application as a result of these health issues. The medical certificate the Applicant provided prior to the hearing is one dated 20 February 2025 which states: "Mrs Jagdeep Gill attended this clinic today because of a medical illness. She has been noted to have high blood pressure and neck pain since 17th Jan 2025 also reportedly history of anxiety."[6]

• [17] Firstly, the medical certificate was provided well after the date the Applicant was due to lodge her application and indeed after the date (14 February) my chambers wrote to the Applicant. A further doctors certificate was provided on the day of the hearing. That certificate was dated 7 March 2025 but referred to a "past history" of neck pain and headaches in October 2024.

• [18] In any case, I'm not satisfied that the high blood pressure, neck pain and headaches that the doctor notes the Applicant has had since 17 January and earlier are satisfactory reasons for the delay. There is no evidence, as to the effects of the pain medication the Applicant was taking. The referral for the spinal issue references pain including sharp pain in her left arm. The evidence of Ms Tagg was that she was completely unaware of the health issues of the Applicant as no reference was made to them while she was employed with the Respondent. Having considered the evidence I am not satisfied that the Applicant was experiencing health symptoms that prevented her from lodging an application in time.

• [19] The second reason given by the Applicant is the same as the reason given in her F2. That is that she was unsure about taking the right course of action, she was unable to make a decision in time and now realises she should have acted sooner. She took action to dispute the dismissal with the Department of Education who informed her about the Fair Work Commission. She then made the application. To the extent this reflects a lack of understanding from the Applicant that she could make an application for unfair dismissal, this is not an acceptable reason for the delay. A lack of awareness of the right to apply within the timeframe is not an acceptable reason for delay. The Applicant confirmed during the hearing she was simply unaware she could make an application until 7 February 2025 when the Department of Education informed her.

• [20] In the circumstances, 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.

b) Whether Applicant first became aware of the dismissal after the date it took effect

• [21] Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant was advised on 15 January 2025 that her employment would end on 15 January 2025.

• [22] The Applicant has had the full benefit of the 21-day period to make this application.

• [23] In the circumstances, that is a matter that weighs against the Applicant.

c) Action taken by the Applicant to dispute his dismissal

• [24] Turning next to the question of the action taken by the Applicant to dispute her dismissal. The evidence was that the Applicant sought to dispute the fairness of her dismissal with the Department of Education by way of sending them an email. I'm satisfied that this constituted action to dispute the dismissal.

• [25] In the circumstances, that is a matter that weighs in favour of the Applicant.

• [26] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time.

• [27] The Respondent made no submissions on this matter. I am not satisfied that there would be any prejudice to the Respondent were the time to be extended. In the circumstances, that is a matter that is neutral in the instant case.

• [28] As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant's case at its most favourable.

• [29] The Applicant had been on a performance improvement program since 21 July 2024. However, the Applicant was not dismissed for performance related reasons. The Applicant was dismissed for alleged serious misconduct, that being she left a group of 5 children from the 3-5-year-old room unsupervised for approximately 15 minutes in breach of s.165(1) of the Education and Care Services National Law Act 2010. The alleged breach was reported to the Department of Education.

• [30] The Applicant accepts that the children in her care were left unsupervised but refers to mitigating circumstances including that she was focussed on a child with special needs, that care of the children is collaborative and that the children are able to enter other rooms though a bathroom. While there was a meeting held prior to the termination, the Applicant claims she was not given a proper chance to explain herself.

• [31] While there are contested facts, largely related to the mitigating circumstances, if children in the Applicant's care were left unsupervised for a period of time, this is a most serious matter, and likely a strong valid reason for dismissal. While other factors alluded to by the Applicant will be relevant, on the limited material before me, the Applicant's case is weak.

• [32] It seems to me therefore, that her claim is, on a preliminary assessment weak. That is not to suggest that it will fail, but the case is not a favourable one for the Applicant.

• [33] In the circumstances, that is a matter that weighs against the Applicant.

f) Fairness as between the Applicant and other persons in a similar position

• [34] As to fairness between the Applicant and other persons in a similar position, 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 Applicant and other persons in a similar or like position. 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.

• [35] The Applicant made submissions that related to alleged unfair treatment while she was employed which are not particularly relevant to this consideration.

• [36] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [37] Statutory time limits that are applicable to the exercise of a person's right to bring an unfair dismissal remedy application are an expression of the Parliament's intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

• [38] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

• [39] As I have indicated, I am not satisfied that there is an acceptable reason for the delay, the Applicant had the full benefit of the 21-day period to lodge her application and the merits of her case are not strong. These factors weigh against the Applicant. The Applicant did try to dispute her dismissal by contacting the Department of Education which weighs slightly in her favour. All other factors are neutral considerations.

• [40] In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order[7] to that effect will be issued concurrently.

[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]

[7] PR785368.

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