s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - out of time application - extension of time sought - exceptional circumstances exist - extension of time granted.

• [1] Ms Brokovich (the Applicant) says she was employed by Ms Turner (the Respondent) from 4 April 2024 to 12 August 2024, when her employment was terminated by the Respondent. The Respondent says that the Applicant was employed from 12 April 2024 until she resigned from employment on 9 August 2024. It is not in dispute that the Applicant was engaged to perform duties at the Respondent's café in a regional area.

• [2] The Applicant filed her Form F8 - 'General Protections dismissal' application on 30 September 2025, being 25 days after the statutory time period expired if the Applicant's asserted date of dismissal is correct, or 28 days if she resigned on 9 August 2025. The Applicant has sought an extension of time to file her application.

• [3] A hearing was conducted in respect of the Applicant's application to extend time to file her application, with both the Applicant and the Respondent representing themselves and giving evidence in support of their respective cases.

• [4] For the reasons set out in this decision, I have found that there are exceptional circumstances in this matter and I have determined to exercise my discretion to extend the time for filing of the application.

• [5] The Applicant says that she worked "long hours"[1] after her engagement with the Respondent until she called in sick with food poisoning on 24 May 2024. The Applicant says that after that occurrence, she was immediately taken off the opening shifts and the number of hours she worked dropped significantly. The Applicant says that the Respondent made it known to her that she was unhappy that the Applicant advised of her absence arising from her illness by text message, rather than by telephone call[2] and that her working hours were reduced because she was unreliable.[3] The Respondent confirmed in her evidence that she considered the informality of the language in the text message ("Can't work tomoz") to be unacceptable and said "I deem that not reliable."[4] The Respondent accepted in her evidence that as a result of the Applicant sending the text message to notify of her absence, she removed opening shifts from the Applicant because she no longer wanted the Applicant to have keys to the business, thereby reducing her shifts.[5]

• [6] The Applicant claims that she was bullied by her managers at the Respondent's business and that during her employment she reported the conduct to the Respondent by text message and during an in-person meeting with her. The Applicant says that despite her complaints the bullying conduct directed at her continued. Towards the end of her employment, the Applicant advised her manager that if the conduct continued, she would seek stop bullying orders from the Fair Work Commission (the Commission)[6].

• [7] On 9 August 2024, the Applicant attended for a shift at the café and says that she was subjected to severe bullying and harassment from both managers working with her. After the shift she sent an email to the Respondent asking to meet with her again to report the bullying behaviour[7].

• [8] Instead of receiving a call back from the Respondent, the Applicant says that the Respondent's husband, Mr Paltridge, returned her call instead. The Applicant says that she had not previously had dealings with Mr Paltridge in a work-related context[8]. The Respondent said she was unable to return the Applicant's call because she had recently had a baby and was on parental leave.

• [9] The Applicant informed Mr Paltridge about the bullying conduct. The Applicant says that Mr Paltridge said to her that he thought she had resigned, which she denied. The Applicant's evidence was that Mr Paltridge said that she was "making his life impossible by making these complaints"[9] and he said to the Applicant that she had the option to be paid the remainder of her rostered shifts or be dismissed[10]. The Applicant said that she was going to seek legal advice before responding further.

• [10] The Applicant then called Mr Paltridge on 12 August 2024 and advised him that she did not accept his offer to resign in exchange for a financial payment.

• [11] The Applicant says that it was during that telephone call that Mr Paltridge said he was terminating the Applicant's employment because she had put too much milk in the chia seeds, wore a hoodie to work that was not quite black, against the uniform expectations, and because she had asked other staff to "boob" her at work, which he characterised as sexual harassment.

• [12] The last of the issues relied on by the Respondent appear to arise from circumstances addressed in a witness statement of Ms Chalmers, filed by the Respondent. Ms Chalmers is a manager in the Respondent's business who supervised the Applicant. Ms Chalmers recounted in her statement that her and the Applicant made jokes about the small size of the workplace and the fact that they would accidentally rub up against each other when performing their jobs. The referred to this conduct as "boobing". I understand that Ms Chalmers did not complain about this conduct but says she cautioned the Applicant not to use the term with other staff. Ms Chalmers was not required to give evidence in this matter and her statement was not admitted into evidence.

• [13] The Applicant sent a text message to Mr Paltridge also on 12 August 2024 asking him to confirm that she had been dismissed for the reasons he set out in the telephone conversation.

• [14] Also on 12 August 2024, the Respondent sent an email to the Applicant saying: "We are writing to accept your resignation as given to management on Friday 9th August." The email advised the Applicant that she would be paid for the following six rostered shifts that she was not required to work.

• [15] The Applicant sent a lengthy email to the Respondent on 14 August 2024, two days after the termination of her employment which noted "[Mr Paltridge] fired me" and included: "I will be proceeding to lodge an unfair dismissal application, and/or constructive dismissal, adverse action, breach of workplace rights and fail to provide duty of care."

• [16] The email also set out the Applicant's response to what she understood to be the reasons for dismissal, defending herself against the reasons offered by Mr Paltridge in the telephone call.

• [17] The Applicant also sent an email to the Respondent on 26 August 2024, in which she noted the absence of a written resignation letter from her, asked for details of the allegations on which the Respondent relied to terminate her employment and proposed a resolution to the matters arising from her employment that included the payment of compensation to her and training for management in preventing workplace bullying and harassment. The Applicant's evidence was that this email was the last communication between the parties until this application was filed in the Commission.

• [18] Section 366 of the Fair Work Act (the Act) sets out the statutory time period in which an application under section 365 must be made. The section further sets out that the Commission may allow a further period for the filing of the application if there are exceptional circumstances, taking into account matters set out in section 366(2):

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

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

(e) fairness as between the person and other persons in a like position.

• [19] The Applicant's evidence to the Commission was that she initially understood she could not bring a claim disputing her termination because she had not worked for the Respondent for six months and consequently, she did not turn her mind to any time limit for filing her application. It was not until she mentioned to a lawyer acting for her in another matter that she had been dismissed and the lawyer suggested she call "Fair Work" that she contacted the Commission and became aware she could file a general protections claim arising from dismissal. It was during her contact with the Commission that the Applicant became aware of the 21 day statutory time limit in which to file the application, which was after the 21 days had expired. She was advised about the time limit when she called "Fair Work". The Applicant says that once she became aware she filed the application within days with the assistance of her mother.[11]

• [20] However, the Applicant's evidence was that she was unable to investigate any options she had to dispute her dismissal immediately after her dismissal because of the significantly poor state of her mental health.

• [21] The Applicant gave extensive evidence, supported by documentary material, of a number of very traumatic events that occurred in her life prior to the commencement of her employment with the Respondent. Both the Applicant and the Respondent agreed that at least some of those matters had been disclosed to the Respondent before and during the Applicant's employment.

• [22] It is not necessary to address the past experiences of the Applicant in this decision, other than to note that the evidence was given to provide context and support to the Applicant's evidence about the severity of her mental health after the dismissal.

• [23] The Applicant gave compelling evidence about her significant level of incapacity that followed her dismissal from employment. The Applicant's evidence was that she became entirely socially withdrawn, rarely left her house, was unable to engage in activities of daily living such as shopping, which she says she was unable to do until 12 September 2024[12]. The Applicant said that from mid-August to mid to late September 2024 she wasn't eating at all[13]. The Applicant said that she "suffered a severe relapse into anxiety, depression, experienced PTSD [post-traumatic stress disorder] resulting in an inability to get out of bed or function."[14] The circumstances compromised the Applicant's ability to engage with outside services, such that she did not provide necessary evidence or attend required meetings to obtain regular social security payments.

• [24] Relevantly, I accept that the Applicant was so unwell that she was unable to attend for treatment by a psychologist or obtain medication during the period following the termination of her employment. This was submitted by the Applicant as her reason for being unable to provide any contemporaneous evidence of her incapacity at the time. The Applicant did provide notes from her general practitioner's surgery that evidenced no attendances at that surgery between 3 June and 22 October 2024, in the context of other more regular attendances before and after those dates.

• [25] The notes of her general practitioner on 22 October 2024 refer to the Applicant's requests for medications to treat depression and anxiety. The notes also reflect the Applicant reporting the termination of her employment to her doctor, advising that she had stopped taking medication after her dismissal and that she had been depressed and had difficulty sleeping due to stress.

• [26] The poor state of the Applicant's mental health was supported in a statement provided by her mother, Ms Burne. The Applicant's mother said in her statement that the Applicant reduced telephone contact with her during the period following her dismissal and when they did speak, the Applicant advised her mother that she was unable to undertake shopping, eating and cooking and was unable to leave the house to have dental treatment until November 2024, at which time she had an advanced infection that required significant treatment[15]. The Applicant confirmed that she was only able to ultimately file her claim with assistance from her mother.[16]

• [27] I accept the Applicant's evidence that she was very unwell at the time she sent the Respondent the email on 26 August 2024, but she had previously tried on a number of occasions to send the email and had been unable to.[17]

• [28] In the matter of Blanco v White Bathroom Co Pty Ltd,[18] Deputy President Easton considered an application for an extension of time in an unfair dismissal where the Applicant advanced as a reason for the delay the "debilitating effects of his anxiety disorder."[19] In this matter, the Deputy President considered a number of previous, relevant decisions of the Commission. He noted:

"Sometimes an applicant's medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant's mental illness and in other cases the Commission has not found exceptional circumstances."[20]

"It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that it is very difficult for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit without proper and specific medical evidence."[21]

• [30] However, I find the Applicant's evidence with respect to her illness and incapacity so persuasive that I accept she was incapacitated to such a degree that she could not file her unfair dismissal application until 30 September 2024. As medical evidence is not a "requirement per se"[22] to establish incapacity, the Applicant's evidence, in addition to the other evidence I have referred to, is sufficient in this matter to persuade me that her illness was a credible reason for the delay in filing the claim.

• [31] The reason for the delay given by the Applicant significantly weighs in favour of a granting an extension of time.

Any action taken by the person to dispute the dismissal

• [32] The Applicant communicated with the Respondent in writing after the termination of her employment putting her on notice that she did not agree with the reason and manner in which her employment came to an end.

• [33] Despite the Applicant not putting clearly the cause of action she intended to pursue against the Respondent, the Respondent was on notice that the Applicant intended to commence some action against it to dispute her dismissal. The Respondent could not have been surprised to receive this application.

• [34] This factor weighs in favour of granting an extension of time.

• [35] The Respondent says that she has suffered prejudice from having to respond to the late application, including the costs associated with attending the hearing, with her and her husband being away from work and having to arrange childcare for their children. The Respondent made the point in her evidence that the late filing of the application required her to engage in the hearing addressing the extension of time rather than proceeding to the stage of the process where the substantive matter was addressed[23].

• [36] I accept that this is the situation, and the Respondent did experience this inconvenience. However, in my view, the inconvenience experienced by the Respondent does not rise to the level of prejudice experienced because the application was filed late. That is, whilst causing disruption to the Respondent, the Respondent's ability to engage with both the Applicant's substantive case and the application to extend time was not compromised by the lateness of the application.

• [37] I find the absence of prejudice to the Respondent in this matter to be a neutral factor in my decision.

• [38] It is only necessary that I consider the merits of the application on a preliminary basis and that the Applicant establish that her case is not without merit.[24]

• [39] The Respondent has also alleged that the Applicant resigned from her employment when she left the workplace on what was to be her last shift working for the Respondent. The Respondent filed a witness statement from Ms Chambers, a manager at the café, who reported that the Applicant had informed her on 9 August 2025 that she had "officially quit her position at the business as she felt she had no respect and micromanagement was next level." As the merits of this matter were not required to be explored in evidence, Ms Chambers was not called to give evidence. No other evidence was available at the hearing of this matter that the Applicant otherwise submitted her resignation. The issue of whether the Applicant resigned or was dismissed is a further jurisdictional issue to be determined by the Commission

• [40] Should the Applicant succeed in establishing that she was dismissed from her employment, it appears, on a preliminary basis, that her case is not without merit. There is no dispute between the parties that the Applicant made complaints about bullying at work, initially to the Respondent and then to her husband.

• [41] On a preliminary basis, without the benefit of hearing all of the evidence in this matter, the Applicant's case appears not to be without merit. This factor weighs in favour of granting an extension of time.

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

• [42] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[25]8 considered this criterion and said:

"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 Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.[26]

• [43] This case turns on its own facts. I have considered the factors I am required to consider under the Act. This factor is neutral in my decision.

• [44] Weighing the matters necessary pursuant to section 366 of the Act, I am persuaded that exceptional circumstances exist in this matter. In particular, I am persuaded that the Applicant's poor mental health and her resulting incapacity was a valid reason for the delay in filing her matter, that she took steps to dispute the termination of her employment directly with the Respondent after the end of her employment and her case is not without merit. I have weighed these findings against the other factors which are neutral in my decision.

• [45] As I have found that exceptional circumstances exist in this matter, I then consider it appropriate to exercise my discretion to extend the time for the Applicant to file her general protections claim involving dismissal. An order extending the time will be issued concurrently with this decision.

• [46] As the Respondent has raised a jurisdictional objection, submitting that the Applicant was not dismissed but rather resigned from her employment, the matter will now be listed for directions in respect of that objection.

Turner and Paltridge on behalf of the Respondent.

[4] Audio recording of the hearing at 2:16:55

[5] Audio recording of the hearing at 2:18:04

[6] Audio recording of the hearing at 27:06

[10] Audio recording of hearing at 28:37

[11] Audio recording of the hearing at 47:46 - 48:20

[12] Audio recording of the hearing at 1:02:48

[13] Audio recording of the hearing at 1:02:58

[15] Statement of Ms Burne dated 18 November 2024

[17] Audio recording of the hearing at 1:05:37

[18] [2021] FWC 4694 ('Blanco').

[23] Audio recording of the hearing at 2:31:11

[24] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at [14]; Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34]; Telstra Network Group v Kornicki (1997) 140 IR 1 at [11].

[25] [2016] FWCFB 6963 at [41].

[26] [2016] FWCFB 6963 at [41]

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