Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - extension of time - application dismissed

• [1] An application has been made by Ms Samantha Hurst pursuant to s 365 of the Fair Work Act 2009 (Cth) (the Act) alleging she was dismissed from her employment by Newcrest Mining Limited (Newcrest) in a manner that contravened Part 3-1 of the Act. Ms Amanda Baker is the second Respondent to the application. The application was filed in the Commission on 6 February 2025. Newcrest and Ms Baker object to the application on the basis it was filed outside the time period specified in s 366 of the Act.
• [2] Mrs Hurst argues that I should be satisfied exceptional circumstances exist warranting a further period be allowed for the application to be made. On 27 March 2025, I conducted a hearing to determine that issue. At my direction, prior to the hearing each of the parties filed an Outline of Submissions and Statements of Evidence.
• [3] At the hearing Mrs Hurst appeared for herself assisted by an interpreter. Ms Jasmine France, in-house Counsel, appeared for Newcrest and Ms Baker.
• [4] Mrs Hurst gave evidence at the hearing. Ms Baker, the Head of Organisational Development and Governance, and Mr Vaughan, Superintendent of Corporate IT Operations gave evidence for Newcrest. Prior to the hearing, Newcrest asked Mrs Hurst if she wished to cross-examine these witnesses. She said she did not. I thought it prudent to check this with Mrs Hurst and on 26 March 2025 my chambers asked her to confirm she did not wish to cross examine these witnesses, because if she did not, their attendance at the hearing would not be necessary and their evidence would be accepted in the form of the Statements they had filed. Mrs Hurst replied confirming that she did not wish to cross-examine the witnesses. In the end, Ms Baker did attend the hearing and attest to the veracity of her Statement under oath, and thus Mrs Hurst was afforded a further opportunity to cross examine Ms Baker, which she declined. Accordingly, Statements filed by Ms Baker and Mr Vaughan were accepted uncontested and constituted the evidence of those witnesses in this matter
• [5] Mrs Hurst had prior to the hearing filed a Witness Statement and 33 documents. As Mrs Hurst was self-represented, and to ensure I had an opportunity to have proper regard to all the material she wished me to consider, I took care to mark each of those documents individually at the commencement of her evidence.
• [6] Even if not directly referred to in this decision, I have given consideration to all of the material filed by the parties in relation to this matter, and all of the supplementary information provided at the hearing by way of further evidence and submission.

• [7] Mrs Hurst conceded in her evidence she was employed on the basis of a "maximum term contract" set to expire on 31 August 2024. Her evidence showed she was busy seeking alternative roles in the lead up to this date, apparently hoping to stay working for Newcrest.
• [8] Mrs Hurst was absent from work on sick leave from 3 to 7 of June 2024. Mrs Hurst said the reason for her leave was medical issues of a mental health nature.
• [9] At around this time, Mrs Hurst usually worked from home. However, on or about 10 June 2024 she was asked by Ms Sarah Simon, Group HR Manager to attend the office on 12 June 2024. Ms Simon was Mrs Hurst's manager, team lead and direct report. Mrs Hurst attended the office on 12 June 2024 and spoke to Ms Simon. Mrs Hurst's account of that conversation lacked precision. Mrs Hurst said in her evidence Ms Simon mentioned that Mrs Hurst should cease her employment. Mrs Hurst said that Ms Simon said she would be given four weeks' notice. Mrs Hurst confirmed in her evidence that from this conversation she understood she would not be working beyond 12 July 2024. A document tendered in evidence appears to indicate it was recorded in the Newcrest's internal system that Mrs Hurst was given notice of termination of employment on 12 June 2024 and her last day of work would be 12 July 2024.
• [10] Whilst not unequivocal, Mrs Hurst's evidence was that she had some notion on or around 12 June 2024 she would be on "gardening leave" until the end of her contract - 31 August 2024 and thus perhaps some uncertainty about whether her end of employment would be effective 12 July 2024 or on the end date of her "maximum term" contract - 31 August 2024.
• [11] Mrs Hurst gave evidence that at this time she was still suffering from mental health issues and these, and the vagaries of what Ms Simon said contributed to her sense of confusion about what was happening. This perhaps provides further explanation as to the indistinctness of her evidence about her dismissal.
• [12] Having said this, what ultimately transpired was consistent with the notion that on 12 June 2024 Mrs Hurst was told that her employment with Newcrest was ending, and she was given four weeks' notice, such that her last day of work would be 12 July 2024. For example, on 20 June 2024 an email exchange occurred with Ms Jennifer Cmil, Newcrest's Chief People Officer who said, "please do keep in touch and all the best for your next steps ...". In relation to this email, Mrs Hurst said in her evidence that at the time she received this email she knew she would be not working by mid July 2024.
• [13] Further, Mrs Hurst did indeed cease working on 12 July 2024 and has not worked since.
• [14] Mrs Hurst received her final payslip on 16 July 2024. This payslip indicated she was only paid up until 12 July 2024.
• [15] Evidence was provided as to Mrs Hurst's efforts to contest the nature of her final payment in respect to her employee entitlements. For example, on 16 July 2024, Mrs Hurst sent an email to "payroll communications" in which she said, among other things, "I also don't see a payment for my salary for the remainder of my contract, until 31 August 2024, did I miss it".
• [16] In her oral submissions, Mrs Hurst conceded that if her effective date of termination of employment was not 12 July 2024, it was 31 August 2024 at the latest.
• [17] There are several good reasons as to why the evidence before me as to precisely when Mrs Hurst was dismissed, and how it occurred, and when the dismissal was effective is less than satisfactory. In particular, Ms Simon was not available to give evidence in this matter - she no longer works for Newcrest. Some time has elapsed. At the time, Mrs Hurst was suffering from medical challenges to some degree, and Ms Simon may have been less than clear.
• [18] However, what seems clear is that, rightly or wrongly, any ambiguity about whether Mrs Hurst was still employed by Newcrest was removed on 16 July 2024 when she received her payslip. On that day, she was no longer working for Newcrest, having finished on 12 July 2024, and the pay slip made clear she was mistaken about being on "gardening leave" until 31 August 2024. While Newcrest contend, not without foundation, that the date the dismissal took effect was 12 July 2024, I consider the dismissal took effect on 16 July 2024, when it became clear Mrs Hurst was not on gardening leave. I note that not a great deal turns on whether I am wrong about that, and the effective date of dismissal was 12 July 2024, instead of 16 July 2024.

• [19] Section 366 of the FW Act requires that an application in relation to a dismissal dispute must be made within 21 days after the dismissal took effect. A further period of time may be allowed, but only if the Commission is satisfied that there are "exceptional circumstances".
• [20] Mrs Hurst's application was filed on 6 February 2025. If the date the dismissal of her employee took effect was 16 July 2024, the application should have been filed before midnight, 6 August 2024. Having been filed on 7 February 2025, it was filed 184 days late.
• [21] To determine whether "exceptional circumstances" exist warranting a further period for the application to be made (an "extension of time") the FW Act requires that I must give several factors consideration, evaluating and giving each of them due weight[1]. The factors are:
  1. the reason for the delay; and
  2. any action taken by Mrs Hurst to dispute the dismissal; and
  3. prejudice to the employer (including prejudice caused by the delay); and
  4. the merits of the application; and
  5. fairness as between Mrs Hurst and other persons in a similar position.
• [22] While the Commission is required to give consideration to each of these factors, the term "exceptional circumstances" has its ordinary meaning, requiring consideration of all of the circumstances[2]. Circumstances may be exceptional because of one exceptional matter, or a combination of exceptional matters, or a combination of ordinary matters which when taken together are exceptional[3].
• [23] Mrs Hurst originates from France, where she is legally qualified. It may be that in other jurisdictions, in some matters there is broad scope for the extension of time limits for the making of applications in Courts or Tribunals. This is not the case in relation to s 366 of the Act: as has often been stated, the test of exceptional circumstances in relation to extensions of time to lodge applications relating to dismissal establishes a "high hurdle" for an application for an extension[4].

• [24] "The delay" is the period commencing immediately after the date upon which the application should have been filed, continuing until the date it was. In this matter, the delay is the 184 day period between 6 August 2024 and 7 February 2025.
• [25] This is the period of focus, although circumstances arising prior to that delay may often warrant consideration in assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.
• [26] Mrs Hurst does not need to provide a reason for the entire period of the delay, but the Commission will usually focus its enquiry on whether the reason for the delay is "adequate", or "credible" or "acceptable", and the absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances[5]. The reason for the delay need not necessarily be one that "justifies" the delay, but the allowance of further time is discretionary, taking into account whether exceptional circumstances exist, and it is in this context that the assessment is made[6].
• [27] Mrs Hurst said the reasons for the delay was:
  1. The absence of a termination letter having been provided;
  2. Ambiguity about the end date of Mrs Hurst's contract;
  3. Medical conditions and pregnancy.
• [28] While not referred to in her Submissions (either written or verbal) in her Form F8 Application Mrs Hurst also said she was not able to obtain legal advice until the week she made her application. Given this point was not pressed in Submissions, and taking into account it is well established that ignorance of the Commission's processes is not an exceptional circumstance[7], I do not consider any difficulty Mrs Hurst faced obtaining legal advice, to the extent it said to be a reason for delay, weighs in favour of a finding of exceptional circumstances in this matter.

• [29] Earlier, I discussed the circumstances surrounding the end of Mrs Hurst's employment. It did not appear to me to be contested that Mrs Hurst was not given a written document which said her employment was finished, or terminated, or that she was dismissed, or words to that effect. However, Mrs Hurst conceded she was under no misapprehension she was finishing work with Newcrest on 12 July 2024, and, as I have mentioned, the end of her employment was put beyond doubt on 16 July 2024 when she received her final payslip.
• [30] Mrs Hurst did not appear to put this submission so high as to suggest that, in the absence of a letter, she did not know her employment had ended in July 2024. This being the case, I fail to see the relevance of the submission. I consider she knew or ought to have known her employment had ended at least by 16 July 2024 - that this was clear whether she had received a letter confirming such or not. The absence of a letter is therefore not a credible or acceptable reason for the delay in Mrs Hurst filing her application.

• [31] Mrs Hurst submitted that "the ambiguity around the end date of my contract has created uncertainty around the start date of the 21 day period". I do not accept this submission. There was no ambiguity around the end date of Mrs Hurst's contract - it was 31 August 2024 - and in her evidence, she appeared very clear about this. I do accept some uncertainty around whether, post-12 July 2024 Mrs Hurst may have been on "gardening leave" or not created some uncertainty - but this uncertainty was resolved on 16 July 2024 when she received her pay slip.
• [32] Even if ambiguity was created in relation to a hitherto unambiguous end date of 31 August 202, as a result of the termination of Mrs Hurst's employment early, this does not explain her failure to file her application until over five months later.

• [33] Mrs Hurst said in her submissions that:

"At the time of my termination, I was experiencing severe burnout and work-related depression. I have attached a stress leave note as well as a copy of my scripts for anxiety, antidepressant and sleeping aid medication to substantiate my condition. A mental health care plan ws also put in place and is still in place to this day.

Additionally, I was and still am pregnant and was dealing with significant pregnancy symptoms, including extreme fatigue and nausea, which further impeded my ability to act promptly, all while trying to secure another job in vain. I have provided evidence of my pregnancy."

• [34] It is well established that an applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay[8]. While a period of incapacity, such as hospitalisation, may in some circumstances explain some of the delay, the period of the impact of the medical condition should be considered and weighed within the context of the total period of the delay, and the absence of any other acceptable reason for the delay[9].
• [35] Pregnancy is not a medical condition, but Mrs Hurst said she was experiencing medical challenges whether related to her pregnancy or not.
• [36] Mrs Hurst's evidence about the degree to which medical issues was a reason for the delay was not extensive. She tendered a Medical Certificate, which said simply she was unfit for work/study from 3 June 2024 to 7 June 2024. She provided a screen shot of what were apparently medical appointments with her GP during 2024. She also provided copies of electronic prescriptions, which were said to be evidence she had been prescribed and had obtained anti-depressants. A pathology report was also provided, said to be simply evidence that Mrs Hurst was indeed pregnant (an assertion about which I was in no doubt).
• [37] Newcrest in this matter took me to the recent decision of Lake DP, in Wilson v Brisbane Crane Trucks[10], in which the Applicant's pregnancy was considered to have provided a "credible explanation for delay which covers the whole period of the delay ..."[11]. It argued the decision is distinguishable from the case before me, because, firstly, the Applicant in that case had provided "compelling testimony in relation to the physical and mental effects of her pregnancy" and that the effects of the Applicant's pregnancy were considered in conjunction with a number of other issues. I agree that this decision is not of any great assistance to Mrs Hurst. I note in particular that his honour found the reasons provided by the Applicant to explain the delay, which was of 16 days duration, did, when considered together, demonstrate a situation which was "uncommon and exceptional", and a credible explanation for the "whole period" [12].
• [38] I accept Mrs Hurst's assertion that she has and continues to suffer from challenges including in relation to mental health, but the nature of the evidence did not convince me these were of a nature such that she could not have filed her application until February 2025, and thus were a reason for the whole period delay. I also did not consider the evidence as to how her pregnancy has, up until now, operated as a reason delaying her application to be "compelling", nor did it provide an explanation as to the totality of what, in the end, has been a significant period of delay.

Action taken by Mrs Hurst to dispute the dismissal

• [39] In deciding whether to grant an extension of time in this matter I am required by the statute to take into account what if any action was taken to dispute the termination of employment.
• [40] Mrs Hurst submitted that after receiving her final payslip on 16 July 2024, she has been engaged in "ongoing discussions" with Newcrest. Evidence was provided about some of these discussions.
• [41] To a large extent, the communications which took place between Mrs Hurst and Newcrest since the cessation of her employment were about employee entitlements. The email she sent on 16 July 2024, which is the first of these, did not "dispute the dismissal" but rather raised a range of issues with the salary rate, the annual leave payment and other amounts, and whether there should have been a payment up until 31 August 2024 (discussed above). Emails sent in June and July 2024 by Mrs Hurst argued she should have been paid a severance payment. Another email, sent by Mrs Hurst to Ms Pham on 24 October 2024 took sharper issue with the nature of the termination of her employment, but continued to focus on there being a review of entitlements and remuneration. Eventually, on 27 November 2024 (after not receiving favourable responses to her earlier communications), Mrs Hurst raised "unlawful termination" in an email sent to Ms Pham in relation to an apparent claim for "damages". Further follow up emails were sent later in November 2024 and again in January 2025.
• [42] Two observations may be made about Mrs Hurst's correspondence with Newcrest following her dismissal. On the one hand, it is not necessarily "exceptional" for an employee to engage with their former employer following the end of their employment to query matters relating to their employment entitlements, such as the accuracy of a final payment, or whether additional entitlements should have been paid. If such communication occurs, it will often not be so exceptional as to render the employee incapable of making a dismissal application. On the other hand, the period of time over which Mrs Hurst continued these communications displays a somewhat unusual level of persistence. Why these her efforts thwarted her ability to lodge her application earlier is not clear to me. It was however in neither party's interests that some better form of communication did not occur between them to attempt to resolve the issues causing Mrs Hurst's lengthy "ongoing" communications and the expenditure of her time on them, and that of the people she was conversing with.
• [43] The assessment I am required to make occurs in the context of whether discretion should be exercised to allow a further period within which Mrs Hurst's application may be made. With this in mind, I do not consider that the actions taken by Mrs Hurst to dispute her dismissal - whilst they were insistent - weigh in favour of a finding that exceptional circumstances exist.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [44] Newcrest submits prejudice would be caused to it if an extension of time was granted, including because over the significant time that has elapsed since the end of Mrs Hurst's employment, key personnel who would otherwise be involved in the response to the application no longer work for it. I consider this carries some weight against the granting of an extension of time in this matter. It is a moderate weight, given Newcrest appears to me to be capable of defending the proceedings even though some of its relevant personnel have left. But the delay does occasion some level of prejudice.

• [45] A number of factual assertions have been made by both parties and several of these are hotly contested. I am not required to make a detailed analysis of the substantive merits of the application[13] and I do not consider I have heard sufficient evidence to do so. I do not consider this factor weighs in favour or against a finding of exceptional circumstances in this matter.

Fairness as between Mrs Hurst and other persons in a similar position

• [46] Neither party made submissions on the matter raised by s 366(2)(e) and, on the basis of the material before me, I do not consider this factor weighs in favour or against a finding of exceptional circumstances in this matter.

Is the Commission satisfied that there are exceptional circumstances, taking into account matters including those above?

• [47] In an overall sense, the delay in Mrs Hursts application was prolonged and would require a significant exercise of discretion to overcome. Having considered each of the factors set out in s 366(2) of the Act and the overall circumstances of this matter, I consider there is little telling in favour of a finding of exceptional circumstances.
• [48] This application was made outside the prescribed time limit, and, having evaluated each the matters identified in s 366(2) of the FW Act, I am not satisfied that there are exceptional circumstances justifying the allowance of an extension to the statutory time limit to be made in this matter.

• [49] I decline to grant an extension of time for the filing of the application.
• [50] The application is dismissed, and an order[14] will be issued in conjunction.

[1] Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 (Stogiannidis); Kuncho Kurtev v KCB Australia Pty Ltd, Toni Telfer [2025] FWCFB 13 [22] - [23] (Kurtev)

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

[4] Kurtev [19]; Abu Murad v Command51 Services Pty Limited [2024] FWCFB 307 [26]; Stogiannidis [14]

[7] Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 [13], [14]

[8] Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285 [22]

[9] Woolworths Limited v Ms Yu Duo (Lynda) Lin [2018] FWCFB 1643 [67]

[10] [2025] FWC 387

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