s.394 - Application for unfair dismissal remedy

Australia And New Zealand Banking Group Limited

Application for an unfair dismissal remedy - whether to extend time - application dismissed

• [1] On transcript this morning, I dismissed an application for an unfair dismissal remedy made by Mrs Lynette Cameron under s 394 of the Fair Work Act 2009 (Act). Mrs Cameron made an application for an unfair dismissal remedy against the respondent, Australia and New Zealand Banking Group Limited (ANZ). Section 394(2) of the Act requires that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such a further period as the Commission allows under s 394(3). It is not in dispute that Mrs Cameron's application was filed outside the 21-day timeframe for lodgement of the application.[1] Mrs Cameron's dismissal took effect on 4 December 2025, and the application was filed on 15 January 2026.

• [2] The Commission has the power pursuant to s 394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances, taking into account the matters in s 394(3)(a) to (f). The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd.[2] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special or uncommon, although they need not be unique or unprecedented. 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 can be considered exceptional.[3]

[3] As to the reason for the delay (s 394(3)(a)), in the Form F2 application Mrs Cameron states that her application for an unfair dismissal remedy was filed outside the 21-day time limit because, in summary:

(a) she was suffering significant psychological distress following her sudden dismissal;

(b) she experienced acute anxiety, stress and shock as a result of the manner of her termination and events leading up to it;

(c) she had been suffering work-related anxiety and stress prior to and following her termination; and

(d) she was incapable of preparing or lodging the application due to her medical and psychological condition.

[4] Mrs Cameron gave evidence that she commenced taking anti-depressants to treat a medical condition and her health deteriorated following the dismissal. Mrs Cameron also referred to the intervening Christmas and New Year period as a difficult period to access advice regarding her application.

[5] I acknowledge Mrs Cameron's evidence that she felt shocked and upset by the termination of her employment. I have taken into consideration that had been employed for 26 years with an otherwise unblemished record. However, I do not consider that Mrs Cameron has provided an acceptable or reasonable explanation for the delay in filing her application. Decisions of the Commission confirm that feelings of stress and shock are not exceptional circumstances in and of themselves. There is no medical evidence before the Commission to support Mrs Cameron's contention that she could not file her application within the statutory timeframe. In the absence of cogent medical evidence demonstrating a causal connection between Mrs Cameron's stated psychological condition and the delay in filing, I am not persuaded that this provides an acceptable or reasonable explanation for the delay. Moreover, the evidence demonstrates that Mrs Cameron was able to provide instructions for the preparation and submission of a workers compensation claim on 18 December 2025 in respect of her dismissal, which is at odds with a conclusion that Mrs Cameron was incapacitated during this period. In this context, to the extent it is contended, I do not consider the timing of the dismissal on 4 December 2025, and the Christmas and New Year period that followed it, provides a credible explanation for delaying lodgment until 15 January 2026.

[6] It follows that I do not find that the matters relied upon by Mrs Cameron as reasons for the delay, individually or collectively, provide an acceptable or reasonable or credible explanation for the delay. This weighs against the grant of an extension of time.

[7] As to the other mandatory considerations, Mrs Cameron accepts that she became aware of the dismissal immediately upon it taking effect, providing her with the full 21-day timeframe to lodge her application (s394(3)(b)). Mrs Cameron did not contend that she had taken other steps to challenge the dismissal other than lodging a workers compensation claim on 18 December 2025 (s 394(3)(c)). This weighs against an extension.

[8] I do not consider there to be any prejudice to ANZ associated with the delay in this case (s 394(3)(d)); nor do I consider that there are any matters that are relevant to fairness between Mrs Cameron and other persons in a like position (s 394(3)(f)). I consider these to be neutral factors.

[9] As to the merits (s 394(3)(e)), Mrs Cameron stated in her Form F2 application that she was dismissed after 26 years of service without prior warnings, any disciplinary history or performance management. Mrs Cameron says that she was not given an opportunity to respond to the allegation before the decision was taken to terminate her employment. Mrs Cameron submits that her conduct, which she described as accessing another staff member's email, occurred in the context of assisting a customer and not for any improper purpose. Mrs Cameron says, in summary, that given her long and unblemished service record, the lack of procedural fairness and the disproportionate response to the conduct alleged, her dismissal was unfair.

[10] ANZ submits that there is no merit to the application. It says that Mrs Cameron was dismissed, in summary, because she used another employee's credentials to access ANZ systems on at least two occasions since May 2025. Further, on at least eight occasions since that time Mrs Cameron was found to have provided her credentials to another employee in circumstances where employees are to keep their credentials, especially passwords, secure. Mrs Cameron's conduct was found to be in breach of ANZ's policies and procedures, its code of conduct and its values. Further, Mrs Cameron's conduct was said to be contrary to its maker/checker process which required Mrs Cameron to personally verify, review and authorise certain transactions, which ANZ said did not occur. ANZ said that as Mrs Cameron was the most senior person in the branch on most days, her employment was no longer tenable.

[11] The parties hold different views as to the matters that preceded the dismissal. The allegations have not been the subject of evidence before me or tested under cross-examination. Accordingly, I am unable to form a concluded view about the substantive application. In the circumstances, I regard the merits of Mrs Cameron's application to be a neutral factor in my assessment of whether to grant an extension of time.

[12] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. In this case, no factors weigh in favour of an extension of time. Taking into account all of the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

[13] As I am not satisfied that there are exceptional circumstances, the power to extend time is not enlivened. Mrs Cameron's application is therefore dismissed.

[2] [2011] FW AFB 975, 203 IR 1.

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