s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - whether exceptional circumstances exist justifying an extension of time - exceptional circumstances exist - discretion to extend time exercised.

• [1] This decision concerns an application by Ms Coralie Leray (Ms Leray or the Applicant) to extend the time for filing her unfair dismissal application pursuant to s.394(3) of the Fair Work Act 2009 (the Act).

• [2] Ms Leray's employment with the South Australian Water Corporation (the Respondent) was terminated on 23 June 2025. Ms Leray's application for an unfair dismissal remedy was lodged with the Fair Work Commission (the Commission) on 18 August 2025.

• [3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as allowed by the Commission considering the matters relevant under section 394(3).

• [4] In this instance, the period of 21 days concluded on 14 July 2025. The application was filed 56 days after the Applicant's dismissal took effect, making the application 35 days out of time. It is, therefore, necessary that the Applicant be granted an extension of time for her application to proceed.

• [5] The Applicant requests the Commission grant an extension of time for her application under s.394(3) of the Act.

• [6] The Applicant's initial representative, Mr Tim Bourne, asserted that he had made efforts to file the application with the Commission on 11 July 2025, within the statutory time period, and had contacted the Commission to confirm that it had received the application. Following an initial directions hearing in this matter, the Commission provided its own records of contact with Mr Bourne to the parties for their consideration.

• [7] The Applicant filed a witness statement in support of her application for an extension of time. The Respondent did not file any materials and confirmed by email that it neither opposed nor consented to the granting of an extension of time.[1]

• [8] By consent of the parties, this matter will be determined on the papers.

• [9] The Applicant commenced employment with the Respondent on 11 April 2016 and at the time of her dismissal, was a Manager of Technology, Government and Assurance.

• [10] On 13 May 2025, the Applicant was advised by the Respondent that she had been suspended from work whilst allegations of serious misconduct against her were investigated.

• [11] The Applicant engaged Mr Bourne as her legal representative on 20 May 2025. Mr Bourne responded to the misconduct allegations on behalf of Ms Leray.

• [12] On 23 June 2025, the Respondent determined that the allegations of serious misconduct were substantiated and terminated the Applicant's employment, effective the same day.

• [13] Ms Leray says she met with Mr Bourne on the day of her dismissal. Ms Leray's evidence is that Mr Bourne drafted a Form F2 application for an unfair dismissal remedy following this meeting.

• [14] In her witness statement, Ms Leray set out the occasions on which she had contact with Mr Bourne about the filing of the application and provided screenshots of calls made to and from Mr Bourne during the time he was her representative.

• [15] On 11 July 2025, Mr Bourne told Ms Leray that he had filed her unfair dismissal application in the Commission and to check that she had received a copy of the application sent by him to her own inbox. Ms Leray confirmed that she had received a copy. It is Ms Leray's evidence that Mr Bourne advised her that the Commission no longer sends an acknowledgement of receipt of filing of an application and that she would "have to wait a couple of weeks to receive anything."[2]

• [16] Ms Leray says that she made efforts to contact Mr Bourne on seven occasions after 11 July 2025, to follow up her unfair dismissal claim because she had not heard from the Commission.

• [17] On 19 August 2025, Ms Leray says Mr Bourne advised her that he had had "email issues with FWC. He'd sent a further email yesterday and asked for a phone call follow-up from FWC. He had not heard back. He will follow up again early tomorrow and sent his apologies."[3]

• [18] The Commission's records show that Mr Bourne attempted to file a document titled "form_f2" on 11 July 2025 to an email address lodge@fwc.com.au, by sharing the document from Microsoft Word. I say this because on Monday, 14 July 2025, the Commission received an email from Mr Bourne, addressed to the correct email address: lodge@fwc.gov.au forwarding the email of 11 July 2025. The email of 11 July 2025 included a shared link with the words "Here's the document that Tim Bourne shared with you." In the email received on 14 July 2025, Mr Bourne says: "Please confirm receipt of Form F2 sent to incorrect address on Friday." However, there is no clear evidence that the Form F2 attempting to be filed on both 11 and 14 July 2025 related to Ms Leray. The file or covering email did not refer to Ms Leray.

• [19] It was not until 25 July 2025 that a Client Services Representative from the Commission sent an email to Mr Bourne advising that the attachment could not be accessed because of a possible range of reasons that included the format of the file. The email from Client Services says: "We cannot action your email because we cannot access the documents you tried to send us. If you have tried to lodge an application or send us documents about an existing case**, we have not received the files**."

• [20] On 18 August 2025 Mr Bourne sent an email to Client Services at the Commission noting: "The below email has just come to my attention." He notes that his correct email address is different to the address from which he had been communicating with the Commission, including in that email exchange, and attached a word document of Ms Leray's application that Mr Bourne says in the email was filed on 11 July 2025. Consequently, the date of filing of Ms Leray's application is 18 August 2025.

• [21] I issued directions on 10 September 2025 that Mr Bourne file an affidavit by 17 September 2025 setting out the steps he took to lodge the application, that the Respondent reply if they elected to do so, and that the matter proceed to a hearing on 25 September 2025.

• [22] Mr Bourne did not file an affidavit as directed. When Mr Bourne did not respond to a request from my Chambers to explain the failure to file an affidavit, the hearing listed for 25 September 2025 proceeded as a non-compliance hearing. Mr Bourne attended the hearing with his client and told the Commission the failure to file the affidavit had been caused by his ill-health. I re-issued directions allowing Mr Bourne to file his affidavit by 9 October 2025 and re-listed the hearing, asking the parties to advise in advance of the hearing date if their preference was for the matter to be determined on the papers.

• [23] On 7 October 2025 my Chambers received an email from a colleague of Mr Bourne's with whom he shared office space, Mr Brendan Connell. Mr Connell confirmed his instructions to act for Ms Leray. Mr Connell advised the Commission that Mr Bourne had become very ill and that "he would not be back at work for some time if at all." Mr Connell filed a statement of Ms Leray setting out the history of her contact with Mr Bourne.

• [24] On 20 October 2025, Ms Leray's now representative, Mr Joseph Wearing filed additional evidence in support of her statement that included screenshots of telephone calls, emails and text messages between Ms Leray and Mr Bourne in the relevant period.

• [25] Section 394(3) of the Act requires that when considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay; and

(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

(e) the merits of the application; and

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

• [26] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether exceptional circumstances exist in the context of this matter.

• [27] For an extension of time to be granted, the Commission must first find that exceptional circumstances exist. The relevant legal test to find whether exceptional circumstances exist is set out in the matter of Nulty v Blue Star Group Pty Ltd[4]:

"To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."[5]

• [28] Considering the evidence provided by the Applicant and the materials on the Commission's file, there appears to be attempts at filing the application within the statutory time period, when Mr Bourne sent emails to the Commission on 11 and 14 July 2025. The file that Mr Bourne attempted to attach to the email was called 'form_f2' and does not identify that Ms Leray is the applicant. However, I accept on the balance of probabilities that the file shared by Mr Bourne on 11 and 14 July 2025 was Ms Leray's application. Ms Leray's evidence is that Mr Bourne called her on 11 July 2025 to advise that he had "submitted the Form F2 to the Fair Work Commission".[6] It follows that the email forwarded on 14 July 2025 also attempted to file the same shared document.

• [29] On the evidence of Ms Leray, and the documents held by the Commission, the reasons for the delay in filing Ms Leray's application are:

(a) The failure of Mr Bourne to file the Form F2 application using the correct lodgement email address on 11 July 2025 and failing to provide the application in a correct format that was able to be accepted by the Commission on 11 July 2025;

(b) The failure of Mr Bourne to file the Form F2 application using a correct format that was able to be accepted by the Commission on 14 July 2025;

(c) The delay in the Commission corresponding with Mr Bourne to advise that his attempts to file the application had failed; and

(d) Mr Bourne's delay in checking his email inbox until 18 August 2025, noting that the application filed with the Commission had included an alternative address to the one he used to communicate with the Commission.

• [30] The reasons for the delay are not reasons attributable to Ms Leray. Her evidence is that she instructed Mr Bourne before her dismissal. Ms Leray then met with Mr Bourne on the day she was dismissed and over the course of the week before the application was due to be filed asked Mr Bourne "on multiple occasions"[7] to discuss the application with her. Ms Leray says she was told by Mr Bourne on 11 July 2025 that he had filed the application. She was entitled to rely on a representation of her experienced lawyer that he had submitted her application. Ms Leray was entitled to assume, as she had also been sent a copy of the application, that it had been correctly filed in the Commission. She also relied on the advice from Mr Bourne that it would take "a couple of weeks"[8] to receive a response from the Commission. When she had not received a response from the Commission, Ms Leray made contact with Mr Bourne who assured her by text message that he had followed up the Commission on a couple of occasions and following a change in the Commission's system (which he says no longer sends a confirmation of receipt), he would follow up again.

• [31] Ms Leray's evidence is that she then followed up with Mr Bourne on 14, 15, 19, 20, 21, 28 and 29 August 2025. Mr Bourne responded to Ms Leray on 19 August advising that he had "email issues with FWC" and that he would follow up again, and 21 August 2025 when he discussed with Ms Leray his "challenges with FWC and emails".[9]

• [32] The approach followed by the Commission in deciding matters involving representative error was set out in Clark v Ringwood Private Hospital.[10] The approach has been adopted and followed in subsequent Full Bench decisions, including McConnell v A & PM Fornataro[11] (McConnell), where the majority held:

"Even if representational error was accepted, we consider that the application of the approach set out in Clark Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarized by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.

(iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted."

• [33] This analysis is relevant to the determination of this matter. In considering whether the representative error is sufficient to find that exceptional circumstances exist, it is necessary to consider whether the Applicant is 'blameless' in causing the delay, or whether the Applicant bears some responsibility for the delay such that the delay cannot be fully apportioned to the representative. Consequently, the conduct of the Applicant in this matter is a central consideration in my decision as to whether exceptional circumstances exist.

• [34] I find that in these circumstances the Applicant does not bear any responsibility for the delay. Ms Leray took an active role in giving instructions and following up the filing of her claim. After she was assured that her claim had been filed by her legal representative, Ms Leray continued to follow up the progression of her claim.

• [35] The reason for delay was caused, principally, by the representative error of Mr Bourne as summarised in paragraph [29] of this decision. The delay was compounded by delays of the Commission in communicating with Mr Bourne about his failure to file the application correctly.

• [36] The representative error in this matter weighs in favour of a finding that exceptional circumstances exist in this case. It is out of the ordinary course, unusual and uncommon for an applicant, such as Ms Leray, to instruct an experienced lawyer and be advised the application had been correctly filed within the relevant time period and for that not to be the case.

When the Applicant first became aware of the dismissal

• [37] There is no dispute in this matter that the Applicant was made aware of her dismissal on 23 June 2025 in a meeting with the Respondent. She had the full statutory period to file her claim.

• [38] As she instructed Mr Bourne on the day of her dismissal to file the application and ultimately his efforts to file within the statutory timeframe were unsuccessful, this consideration is neutral in the circumstances.

Any action taken by the person to dispute the dismissal

• [39] There is no evidence before me that the Applicant took steps to dispute her dismissal other than by filing her unfair dismissal claim. However, there is evidence that the Applicant participated in a show cause process and disputed the allegations against her. Ms Leray appears to have been represented by Mr Bourne throughout the show cause process.

• [40] Considering the above circumstances, this consideration is a neutral factor in my decision.

Prejudice to the employer, including prejudice caused by the delay

• [41] The Applicant's current representative submitted there was no prejudice to the Respondent employer. The Respondent did not make submissions in the matter. I note that the Applicant engaged in a contested show cause process and the Respondent was on notice that she did not agree with the reasons for her dismissal.

• [42] However, in the absence of evidence about any prejudice, this consideration is neutral in my decision.

• [43] The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[12] Further, the primary consideration is whether the Applicant has an arguable case.[13]

• [44] There are competing arguments set out by each party in the application (Form F2) and response (Form F3). The Respondent asserts that an investigation into allegations of misconduct on the part of the Applicant substantiated at least some of the allegations that were serious enough to warrant her dismissal from employment. The Applicant alleges, among other things, that she adequately defended herself against insufficiently particularised allegations and that the findings of the Respondent are not supported by evidence.

• [45] There appears, on the face of it, to be a genuine contest between the parties about the alleged unfairness of Ms Leray's dismissal. Consequently, the Applicant appears to have an arguable case. This factor weighs in favour of a finding of exceptional circumstances.

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

• [46] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[14] 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."[15]

• [47] I have considered the relevant matters I am required to consider under the Act. This matter turns on its own facts and as such, this criteria is neutral in my decision.

• [48] I have considered the relevant matters as required by section 394(3) of the Act. Weighing those factors, I find that the errors of Ms Leray's representative, in the absence of a contribution to the delay by her, and that she has an arguable case on merit, constitute exceptional circumstances. The remaining considerations are neutral in my decision.

• [49] Having found that exceptional circumstances exist, I consider it to be a case where I should exercise my discretion to extend the time for Ms Leray to file her application for unfair dismissal to the date of filing on 18 August 2025. I am persuaded to do so, in particular, by the absence of any contribution to the delay in filing by Ms Leray.

• [50] An order extending the time for the filing of this application will be published concurrently with this decision.[16]

[1] Email from Respondent's representative dated 20 October 2025.

[2] Statement of Applicant, table following paragraph 10.

[4] [2011] FWAFB 975.

[6] Statement of Applicant, table following paragraph 10

[10] (1997) 74 IR 413, summarised in Davidson v Aboriginal and Islander Child Care Agency (1998) 105 IR 1 ('Davidson').

[11] [2011] FWAFB 466 at [35] referencing Davidson.

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

[13] Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34].

[14] [2016] FWCFB 6963.

[15] Ibid at paragraph [41]. See also Higgins v FQM Australia Nickel Pty Ltd [2023] FWC 750.

[16] PR793412.

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