Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

• [1] Ms. Deleila Roberts (Applicant) was previously employed by the Thunggutti Local Aboriginal Land Council (Respondent). The Applicant's employment with the Respondent came to an end on or about 27 February 2012.

• [2] On 23 April 2025 the Applicant filed an application alleging that she had been dismissed by the Respondent on 27 February 2012 in contravention of the general protections provisions contained in Part 3-1 of the Fair Work Act 2009 (Cth) (Act). Applications of this kind must be made within 21 days of the date the dismissal took effect or within such further period as the Fair Work Commission (Commission) allows.[1] The application is out of time and the Applicant now asks the Commission to extend time to allow the application to proceed.

• [3] Section 366(2) provides that the Commission may extend time if satisfied that there are exceptional circumstances taking into account the following matters:

1. The reason for the delay: and
2. Any action taken by the person 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 the person and other persons in a like position.

• [4] The Applicant submitted that she had lodged paperwork with a firm of solicitors over 6 years ago and the firm still has the file and has not addressed the Applicant's claim. In her oral evidence the Applicant said she first instructed a law firm in approximately 2016 or 2017, but the claim did not progress and she then instructed a second firm. The Applicant did not explain why it took such an extended period to instruct solicitors to act on her behalf in relation to the matter or what if any steps she had taken in the period since the instructions were given to progress the matter. I am not satisfied that the delay can be attributed to representative error or that the Applicant does not bear some responsibility for the delay. No other reason was proffered to explain the delay. This factor weighs against a conclusion that exceptional circumstances exist.

• [5] The Applicant provided a copy of a terms of settlement document (Terms) signed by herself and dated 13 April 2012. The Terms relate to an unfair dismissal proceeding commenced by the Applicant against the Respondent in what was then Fair Work Australia. The Terms indicate that the alleged dismissal was disputed by the Applicant at some point after it occurred and the dismissal was the subject of earlier proceedings. The Applicant accepted that the unfair dismissal proceeding related to the same dismissal which was at issue in this matter.

• [6] The Applicant maintained that the Respondent did not ever sign the Terms document and did not comply with the non-disparagement clause in the Terms. The Terms provided that upon the Respondent complying with certain terms, including the payment of the settlement sum and the provision of a statement of service, the Applicant would release the Respondent from further claims or proceedings arising out of the Applicant's employment, including the cessation of employment. The Applicant accepted that the Respondent complied with other substantive provisions of the terms including the payment of a settlement sum and the provision of a statement of service to the Applicant.

• [7] While the Applicant did take steps to dispute the dismissal at the time, I think that the Respondent could reasonably have regarded the matter as resolved in 2012 and that the present application is an attempt to relitigate the circumstances surrounding the ending of the Applicant's employment. In the overall exercise of my discretion, the circumstances relating to the previous unfair dismissal proceedings and the settlement of that matter would weigh against an extension of time.

Prejudice to the employer (including prejudice caused by the delay)

• [8] The Respondent indicated in the Form F8A Response that neither the Chief Executive Officer of the Respondent nor any of the current board members were engaged by the Respondent at the time the alleged dismissal occurred. Given the extended period of the delay, I am of the view that the Respondent would be prejudiced in its attempts to properly respond to the application if the application were allowed to proceed. This would include difficulties in locating witnesses and obtaining evidence from them as to events that occurred over 13 years ago. Providing relevant documentary evidence may also be difficult. This weighs against a conclusion that there are exceptional circumstances favouring an extension of time.

• [9] I am unable to make an assessment of the merits on the material before me. The Applicant's evidence as to the exact circumstances in which her employment came to an end was limited. There was some medical evidence provided as to the state of the Applicant's health at or about the time the relationship ended, and the Applicant asserted that her termination was substantially connected to her medical condition. There was insufficient material from which a connection could be drawn between the medical condition and the operative or immediate reason or reasons for the alleged termination, even on a prima facie basis. There was also some documentary evidence indicating that the Applicant had raised concerns within the Respondent organisation regarding alleged misappropriation of funds. Again however, there is insufficient material upon which any meaningful conclusions can be drawn from this evidence. I regard the merits as neutral in the overall assessment.

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

• [10] There was no evidence in relation to this consideration. It is a neutral factor in the assessment.

Exceptional circumstances - conclusion and disposition

• [11] In circumstances such as these, the Applicant must satisfy the Commission that there are exceptional circumstances which warrant the Commission exercising its discretion in favour of granting an extension of time.

• [12] Briefly, 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. 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.[2]

• [13] Having taken into account the matters set out above, I am not satisfied that there are exceptional circumstances in this case. Accordingly, there is no basis for an extension of time. Even if the circumstances were considered exceptional, I would not exercise my discretion to grant an extension of time in this case.

[1] Section 366.

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

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