s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application made outside of 21-day time limit - no exceptional circumstances present - extension of time not granted - unfair dismissal application dismissed.

• [1] This decision concerns an application (Application) made by Ms Navneet Kaur (Applicant) for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (Act). The Applicant was employed by the Australian and New Zealand Bank Group (Respondent) and alleges she was dismissed on 22 November 2018. The Application was lodged on 31 March 2025, which was outside the 21-day statutory period required by s 394(2)(a) of the Act. This decision deals solely with whether to extend the statutory period for the filing of the Application.

• [2] Section 394(2) of the Act states an application for unfair dismissal remedy must be made 'within 21 days after the dismissal took effect; or within such further period as the Fair Work Commission (Commission) allows...'. The period of 21 days after the alleged dismissal ended at midnight on 13 December 2018. The Application was filed 2,300 days (6 years, 3 months, 2 weeks, 4 days) outside the 21-day period. The Applicant requests the Commission grant a further period for the Application to be made under s 394(3) of the Act.

• [3] The Application was listed for Determinative Conference/Hearing (the Hearing) on 28 May 2025 to determine whether an extension of time to file the Application should be granted. In advance of the Hearing, the parties filed material in accordance with directions issued. The Applicant appeared at the Hearing and gave evidence while the Respondent was represented by Ms Bridget Shelton of Lander and Rogers, who was granted permission to appear pursuant to s 596(2)(a) of the Act. Ms Kerrie Lee Halden (Senior Employment Lawyer and T&C Consultant) was called to give evidence on behalf of the Respondent.

• [4] The Applicant commenced employment with the Respondent on 26 May 2008 and on 5 January 2015 commenced in the role of Documentation Specialist (Institutional Banking), a role that was later retitled to Documentation Specialist (the Role). The Applicant was a member of a team that prepared loan documentation for commercial clients in institutional banking. The duties of the Role involved the preparation of certain loan documentation prior to checking by a more senior role, the QA Documentation Specialist, before being issued to a customer.[1]

• [5] Ms Halden states that on 26 July 2018, the Respondent announced a proposed change to the organisational structure in the Client Documentation team which included the Applicant's Role. Employees in the team, including the Applicant, were sent an email on 26 July 2018 by Ms Pat Banerjee (Head of Onboarding, Client Documentation & Credit Administration, Institutional Operations). The email relevantly included the following information;

Today we proposed some changes within our Credit Administration and Client Documentation functions within OCDCA.

There have been a number of efficiencies gained through standardization and simplification of our processes, including a steady reduction in our transactional volumes, year on year, with the implementation of Loan IQ. To this end, we have assessed our Quality Control (QC) requirements and have decided to right-size this function through a

preference selection process. This would mean that we would have a lesser number of QC resources within this team.

One on one interviews have been held with all impacted QC staff and we have commenced the consultation process.

In line with our strategy to enable our Service Centre in Manila to be the "preparers" or our client Letters of Offer and our onshore operations to be the "checkers" of these letters, we propose to migrate to Manila, the small number of roles that remains in Melbourne re: preparations of letters. Our impacted colleagues (documentation specialists) have had their one on one interviews earlier today.

• [6] Employees in the Client Documentation team were also provided an Employee Information Pack[3] (Information Pack) on 26 July 2018. The Information Pack identified four Documentation Specialist roles that were impacted by the proposed change including the Applicant's Role. Ms Halden states that the purpose of the restructure was to improve the operating model by having the preparation of the loan documentation actioned solely via a team in Manilla, as opposed to being actioned by a both a team in Manilla and a few roles in Australia. The QA Documentation Specialist roles were retained in Australia.[4]

• [7] Ms Halden further states that the consultation period with respect to the impacted Documentation Specialists ended on 31 July 2018. The Respondent was unable to identify a suitable alternative role for the Applicant and provided her with six weeks' notice of retrenchment on 12 October 2018.[5] The Applicant was not required to work during the six-week notice period and was allowed to actively search for work according to Ms Halden. The Applicant's termination of employment took effect on 22 November 2018, and she received a severance payment of $52,188.19.[6]

• [8] After subsequently moving the loan documentation preparation task from Manilla to Bangalore in 2019, the Respondent then decided to bring the loan documentation preparation work back to Australia in or around 2022. In doing so it decided to combine the preparation of the documents with other aspects of the process including quality assurance and issuing of the documentation according to new processes and increased regulatory requirements. Ms Halden states the old Documentation Specialist and QA Document Specialist roles were combined into a Document Analyst role responsible both preparation, checking and issuing of loan documentation in line with new processes and regulatory requirements.[7] This resulted in the Document Analyst role being distinctly different to the Role held by Applicant until her redundancy. Ms Halden states the Applicant applied for a Document Analyst role advertised in June 2024 but was unsuccessful due to not meeting role requirements.

• [9] The Applicant challenged Ms Halden's evidence on the contended differences between the Documentation Analyst role and the Role from which she was retrenched in November 2018. The Applicant gave evidence that she was at times required to do both document preparation and QA tasks before issuing documents directly to clients. She explained this was due to her competence and time pressures that sometimes impacted on document preparation and issue. In circumstances where she claims to have at times done both document preparation and QA tasks, the roles were essentially the same in the Applicant's opinion. While Ms Halden disputed this, the Commission was not assisted by the provision of a position description for the Applicant's Role.

• [10] The Applicant also gave evidence in relation to the advertisement for the Document Analyst role which she applied for on 2 June 2024.[8] She says she received no response to her job application which she felt particularly aggrieved about given her long service, her performance awards and recognition[9] and unblemished employment record. Her attempts to follow up in relation to the job application were unsuccessful she says which prompted her to then lodge formal complaints with the Respondent. When it became apparent to her that her efforts to resolve the matter directly with the Respondent had been unsuccessful she prepared and filed the Application on 31 March 2025.

• [11] 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.' 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.[10] 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.[11]

• [12] 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) of the Act 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.

• [13] 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; and

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

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

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

• [14] 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.

• [15] As the dismissal took effect on 22 November 2018, the Application needed to have been made by midnight on 13 December 2018 to be within the 21-day filing period. The delay is the period commencing immediately after that time until 31 March 2025, although circumstances arising prior to that day may be relevant to the reason for the delay.[12]

• [16] The reason for the delay is not required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[13] An applicant does not need to provide a reason for the entire period of the delay, however, the absence of explanation for any part of the delay usually weighs against an applicant in assessment of whether there are exceptional circumstances. A credible explanation for the entirety of the delay usually weighs in the applicant's favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay.[14]

• [17] The Applicant says she accepted in November 2018 that her Role had been made redundant due to a combination of work/process automation and migration of document preparation work to Manilla. She went on to submit that the Respondent's advertisement for an Australian based Document Analyst role in mid-2024, a role she claimed was identical to the Role she previously held, caused her to doubt the genuineness of her November 2018 redundancy. This she says explains the delay from 22 November 2018 to June 2024.

• [18] The further delay from mid-2024 until 31 March 2025 when she filed the Application is said to be explained by the Applicant's attempts to resolve the issue of her June 2024 job application directly with the Respondent. Her efforts included following up with the Respondent over that job application and failing a response, filing a formal complaint with the Respondent. The Applicant submits that her attempts to resolve the matter directly with the Respondent explain the further period of delay from June 2024 to 31 March 2025. The Applicant also referred to her lack of understanding or awareness of her rights under the Act.

• [19] The Applicant's argument that the advertising of the Document Analyst role in mid-2024 meant she was unaware up to that point of the unfairness of her dismissal that took place in November 2018 has no merit. This is not a case where the Applicant was made redundant, and shortly after that became aware that her Role had been readvertised. The circumstances of the case before me is light years away from that scenario. This is a case where an organisational restructure led to migration of document preparation work to an overseas location. The return of that work several years later followed a further organisational restructure. It must be said that despite arguments from the Applicant, there is nothing inherently unlawful about an employer restructuring its business in the manner undertaken by the Respondent which impacted the Applicant. I do not accept in the circumstances of this case that the Applicant has provided an acceptable explanation for the delay from November 2018 to June 2024.

• [20] If I am wrong in my finding above, there is also the further delay from June 2024 to 31 March 2025 for which no acceptable explanation has been provided. The fact that the Applicant chose to make and pursue her job application for the Documents Analyst role on 2 June 2024 rather than pursue an unfair dismissal remedy at an earlier time than she did was a conscious decision she made. There was nothing that prevented the Applicant from filing her Application shortly after becoming aware that the Document Analyst role had been advertised in mid-2024. In truth, it was only when she formed a view that her job application had been unsuccessful that she then filed the Application. I am not satisfied that this provides an acceptable explanation for that part of the delay from June 2024 to 31 March 2025.

• [21] Turning now to the Applicant's claim that the delay in filing the Application was also due in part to ignorance of her rights under the Act. That explanation must also be rejected as it is well established that ignorance of the statutory time period does not weigh in favour of a finding of exceptional circumstances. The Full Bench in Nulty v Blue Star Group Pty Ltd[15] (Nulty) said as follows when considering the equivalent extension of time provisions in a general protections dismissal matter before it;

"[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances." In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance."

• [22] I intend to follow the Full Bench's approach in Nulty, therefore the Applicant's claimed ignorance of her rights under the Act does not provide an acceptable explanation for any part of the delay in filing the Application.

• [23] It follows from the above that the Applicant has failed to advance an acceptable explanation for any part of the delay in filing the Application This weighs against a conclusion that there are exceptional circumstances.

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

• [24] It was not in dispute, and I find that the Applicant was aware of her dismissal on the same day that it took effect on 22 November 2018 having been formally notified of her redundancy on 12 October 2018. She therefore had the benefit of the full period of 21 days within which to the Application. This weighs against a finding of exceptional circumstances.

• [25]   The Applicant took no action to contest her dismissal after it took effect on 22 November 2018, other than lodging the Application. This weighs against a finding of exceptional circumstances.

• [26] The Application was filed 2,300 days outside of the 21-day period. While the Applicant contends there is no prejudice to the Respondent, I disagree. Were an extension of time granted, and the merits of the Application considered, the Respondent would need to call evidence surrounding the circumstances of the Applicant's redundancy. I accept the Respondent's submission that such a long delay is likely to impair the recollection of the Respondent's witnesses and gives rise to a real risk of prejudice to the Respondent. In these circumstances I am satisfied that the length of the delay in filing the Application would give rise to prejudice to the Respondent. This weighs against a finding of exceptional circumstances.

• [27] The Act requires me to take into account the merits of the Application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[16] it said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

• [28] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case"[17] for the purpose of determining whether to grant an extension of time to an applicant to make their application. I have adopted this reasoning.

• [29] The Applicant contends that her redundancy in November 2018 was not a genuine redundancy on the basis that her role was given to somebody overseas and not through automation under the 'gloss project' as she was told at the time. The Applicant also contends that the Role was not genuinely redundant as the Respondent advertised for a Document Analyst role in 2024 which she claims is the same as the Role she held prior to November 2018.

• [30] Turning to the first point raised by the Applicant, it is apparent from reading both Ms Banjaree's email and the Information Pack provided to the Applicant on 26 July 2018, that the removal of the Australian based Documentation Specialist roles was a direct consequence of the 'migration' of that work to Manilla. There is no reference in the material provided to the Applicant on 26 July 2018 to automation being the justification for her redundancy as claimed by her. Even if the removal of the Documentation Specialist roles was in part due to automation, that would not assist the Applicant's case as it would still appear her Role was not required at the point of her redundancy in November 2018

• [31] The Applicant's contention that her dismissal in 2018 was not a genuine redundancy is also based on her belief that the advertising of the Document Analyst role in mid-2024 would support a finding that her dismissal in 2018 was not a genuine redundancy. This is in circumstances where the Applicant contends that the Document Analyst role is substantially the same as the Role she held up until 22 November 2018. The Respondent disputes the claimed similarity of the roles and refers to the combining of the former document preparation with document QA roles as well as changes to regulatory and process requirements. While it is not necessary for me to resolve this factual contest at this point, the advertising of the Document Analyst role in 2024 would not assist the Applicant's merits case in circumstances where that role were found to be significantly different to the Role she held up to November 2018.

• [32] Even if it were established that Document Analyst role advertised in mid-2024 was substantially the same as the Applicant's previous Role, that takes the Applicant's case no further. The fact that the Respondent may have undertaken a further organisational restructure several years after the Applicant's redundancy, resulting in the return of some work from overseas locations is, given the significant passage of time, irrelevant in my view to the question of whether her dismissal in 2018 was a genuine redundancy within the meaning of s 389(1) of the Act.

• [33] The Applicant has not advanced any material that would cast doubt on the notified reason for her dismissal on 22 November 2018, that the Australian based Role she held was no longer required at that time because of an operational decision to 'migrate' remaining documentation preparation work from Australia to Manilla. The Respondent has advanced a strong prima facie defence to the Application. On the limited material before me, the Applicant's case does not appear strong. This weighs against a finding of exceptional circumstances.

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

• [34] 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.

• [35] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

• [36] Having regard to the required matters under s 394(3), and all of the matters raised by the Applicant outlined above, I am not satisfied there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

• [37] Because I am not satisfied 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) of the Act. Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.

[1] Exhibit R1, Witness Statement of Kerrie Lee Halden, dated 23 May 2025. At [10]-[12]

[2] Exhibit R1, Annexure KLH-1, Email from Pat Banerjee, dated 26 July 2018, titled 'Proposed changes within OCDCA'

[3] Exhibit R1, Annexure KLH-2, Employee Information Pack, dated 26 July 2018

[5] Exhibit R1, at [17]-[18], Annexure KLH-3, Notice of Retrenchment, dated 12 October 2018

[8] Exhibit A3, Document Analyst role application, dated 2 June 2024

[9] Exhibit A4, Employee recognition awards

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

[12] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

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

[15] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

[16] Print PR3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[17] Kyvelos v Champion Socks Pty Ltd, Print T2421, 10 November 2000, at [14].

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