s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - request for an extension of time - application dismissed.

• [1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]

• [2] This decision concerns whether I should exercise my discretion to allow Ms Emily Frances McIntosh a further period for her unfair dismissal application (Application) to be made against The Song Room.

• [3] Ms McIntosh has lodged an application pursuant to s.394 of the Act in relation to the termination of her employment with The Song Room which her form F2 unfair dismissal application advised took effect on 16 December 2024.

• [4] The application was lodged on 7 January 2025 and is 1 day out of time.

• [5] On 14 January 2025, I issued directions and advised that the extension of time issue would be considered at a video hearing on 3 February 2025. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties.

• [6] On 17 January 2025, the Respondent lodged a form F3 Employer Response which indicated that the dismissal occurred on 16 December 2024 and raised a jurisdictional objection on the basis that the application was lodged out of time and that the dismissal was a genuine redundancy. This decision only concerns the extension of time request.

• [7] A hearing was conducted by way of video conference on 3 February 2025. A video file record of the hearing was kept.

• [8] The Applicant represented herself. The Respondent was represented by Ms Alice Gerlach (CEO) and Ms Mary Brown (Director of Business Performance).

• [9] A digital court book was compiled from the material that was filed by both parties, and was distributed to the parties prior to the hearing. The entirety of the digital court book was received into evidence, with appropriate weight being given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).

• [10] Ms McIntosh gave evidence at the hearing. Ms McIntosh's mother also gave evidence and assisted Ms McIntosh with her submissions. Her position is summarised as follows:

• Ms McIntosh was exposed to stress, a poor work practice and culture, bullying, understaffing and a lack of support in the period leading up to October 2024.

• On 31 October 204, Ms McIntosh was called into meeting and was told her position was being made redundant and that she would be finishing up in her role on Wednesday, 6 November 2024.

• She was also told there would be a consultation meeting in relation to her position's redundancy on Monday, 4 November 2024 with a further meeting scheduled for 6 November 2024 and received a 'consultation letter' to this effect.

• On 1 November 2024, Ms McIntosh visited her doctor and was diagnosed with acute stress disorder. She was declared unfit for work from 1 November 2024 to after 15 November 2024. On the same basis, she was subsequently declared unfit for work and to return to work until 17 February 2025. As part of a workplace injury claim, an independent medical examiner confirmed her diagnosis with an adjustment disorder, with mixed depression and anxiety.

• On 4 November 2024, Ms McIntosh advised The Song Room she was unfit for work and lodged a worker's injury claim form with WorkSafe. Following this, she was locked out of her email, work access and unable to contact her schools or colleagues.

• Despite her health condition, on 11 November 2024 her employer advised her they were continuing with the proposed redundancy consultation process and invited her to a meeting on 18 November 2024 or otherwise participate in writing should she be unable to attend.

• On the same day, she wrote to a letter of demand to her employer seeking confirmation of correct payments and potential misclassification seeking backpay, if verified, and records in support of the company's position.

• Ms McIntosh engaged in the consultation process and provided a number of suggestions as an alternative to her position being made redundant. She was not provided any redeployment opportunities.

• She maintains the redundancy process was not genuine, that funding remained for her position, that the consultation process was not genuine, and she was always going to be dismissed.

• Because of her employer's actions, her position is she has suffered significant injury to her mental and physical health, as verified by her doctors. That this injury has impacted her capacity and ability to function and her ability to file her application on time.

• Also, that her caring responsibility for her 3 dependent high-needs children and inexperience dealing with multiple legals maters; seeking to address her pay dispute, workplace injury and dismissal have compounded her incapacity and ability to file within time.

• [11] The Respondent relied on its submissions and Ms Gerlach (CEO) and Ms Brown provided additional submissions as summarised below:

• Ms McIntosh has not presented reliable evidence of the medical condition and its impact on her capacity that can be relied upon.

• Ms McIntosh was able to actively engage in the consultation process from 31 October 2024 to 16 December 2024 and dispute her redundancy and pay rates for the period of her employment during this period.

• Ms McIntosh's claims that she has suffered a workplace injury because of the conduct of her employer has not been accepted.

• Ms McIntosh did not present any claims of bullying, poor culture or stress to the attention of the Respondent prior to the filing of this application.

• Ms McIntosh's dismissal was a genuine redundancy. Her application has been filed out of time and should be dismissed.

• [12] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are "exceptional circumstances", taking into account the following six criteria:

(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."

• [13] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant.[3]

• [14] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] which stated:

"[10] It is convenient to deal first with the meaning of the expression "exceptional circumstances" in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression "exceptional circumstances" in s.394(3) and held:

"[5] The word "exceptional" is relevantly defined in The Macquarie Dictionary as "forming an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act."

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. 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."

• [15] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[5] A dismissal can be communicated orally.[6]

• [16] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[7] In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,[8] the Full Bench explained the correct approach by reference to the following example:

"[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter."

• [17] An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[9]

"[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[44] As mentioned earlier, the 'reasons for the delay' is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances."

• [18] Ms McIntosh's position is the reason for the delay is that she was unable to complete and file the application in time because of her reduced mental and functional capacity. And further, that her reduced capacity was a consequence of the decision of her employer to advise her that she could lose her job. She says her condition and circumstance was exacerbated due to her caring and financial commitments to her 3 children, inexperience with multiple legal processes and the fact funding remained for her position as it was not a case of genuine redundancy.

• [19] In supporting this position, Ms McIntosh has presented medical evidence attesting she was unfit for work and had reduced capacity from 1 November 2024 - 17 February 2025. Variously, this evidence affirms Ms McIntosh was suffering from acute stress disorder. Critically, the reason given for this diagnosis in this evidence included her workplace injury certificate of capacity form. which records as follows:

"Description of injury/disease: Stress which is work related as she felt shocked adter(sic) they told her that Wednesday will be her last day in work and it s(sic) associated financial impact on her and herr(sic) family

• [20] While I have considered the Respondent's concerns in relation to this evidence, I accept that it clearly demonstrates that Ms McIntosh was suffering from Acute Stress Disorder.

• [21] This is not to say that I accept Ms McIntosh's injury was caused by the conduct of her employer. I am not required to make a finding in relation to this assertion by Ms McIntosh and do not do so.

• [22] What I am required to consider is if Ms McIntosh's condition provides a valid reason for the delay. Considering all the evidence in this case, I do not accept this is the case.

• [23] In reaching this conclusion, I have had regard to the uncontested evidence that the condition that was impacting Ms McIntosh's capacity to file her application on time was caused by being told her position was being considered for redundancy.

• [24] It is regular, routine and not uncommon for employees who have been dismissed or told that they may be dismissed or that their position is being considered for redundancy to suffer stress or illness. It is also not uncommon, or exceptional, for employees in similar situations to be required to deal with concurrent matters whilst seeking to exercise their legal entitlements.

• [25] I have accepted Ms McIntosh's evidence of the challenges she has faced. However, as the Full Bench in Shaw v Australia and New Zealand Banking Group Ltd (Shaw) identified; stress, shock and confusion because of the loss of employment are not of themselves exceptional. While the loss of employment is a serious event in a person's life, the effects of such are unfortunately not unusual. [11]

• [26] I have also considered the evidence that during the period Ms McIntosh's capacity was impacted, she was able to engage in the consultation process and raise a dispute with her employer about being incorrectly classified. While I accept Ms McIntosh's evidence her mother provided her assistance in these processes, the evidence is plainly that she had the capacity to engage and instruct her mother in this regard. This does not support a conclusion that she was not able to give a similar instruction to file her application within the required timeframe. I do not accept this is the case.

• [27] It is well established that it is not exceptional for person losing, or facing the loss of their job, to be confronted with difficulties. 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. Each circumstance of the ending of a job and its impact will be different and need to be considered on its own merits. The factors confronted by Ms McIntosh are not "unique" or "unprecedented", and I am not satisfied that they satisfy the criteria of being "out of the ordinary course", "unusual" or "uncommon".

• [28] Furthermore, Ms McIntosh has not presented any independent evidence to support a conclusion she did not have the mental or physical capacity to commence and complete filing her application within the required timeframe. Her ability to engage with her employer, mother, and WorkSafe, amongst others, during the period she was unfit for work supports this conclusion.

• [29] I have also had regard to the length of the delay - 1 day. It could not be much shorter. On its own, however, this does not take the matter further, there must be an acceptable reason for the delay.[12]

• [30] In her submissions, Mrs McIntosh (the Applicant's mother) conceded her daughter genuinely thought her application was due to be filed on 7 January 2025 and did not become aware her application was out of time until advised by the Commission. I accept this evidence. While I accept this to be a genuine mistake, it is well established a mistake or ignorance of the filing requirements does not present a valid reason for the delay.[13]

• [31] Considering the above, it is my view, Ms McIntosh has not provided a credible reason for the delay in filing the application. This factor weighs against the granting an extension of time.

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

• [32] Ms McIntosh was aware of the dismissal on the date it occurred on 16 December 2024 and had been made aware of the potential for this to be the case from 31 October 2024.

• [33] This factor weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

• [34] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[14]

• [35] The undisputed evidence in this case is that Ms McIntosh engaged in the redundancy consultation process and strenuously sought to dispute the basis and validity of the proposed redundancy throughout this process.

• [36] This factor is a consideration in favour of granting of an extension of time.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

• [37] Prejudice to the employer will weigh against granting an extension of time.[15] However, the "mere absence of prejudice to the employer is an insufficient basis to grant an extension of time".[16]

• [38] A long delay gives rise "to a general presumption of prejudice".[17]

• [39] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.[18]

• [40] I am satisfied that there would be no greater prejudice to The Song Room caused by the Application being dealt with now than there would have been had it been made within the required time. Accordingly, prejudice is a neutral consideration.

Paragraph 394(3)(e) - merits of the application

• [41] In have considered the merits of Ms McIntosh's application, she maintains her termination by way of redundancy is unfair and it is not a case of a genuine redundancy, pointing to the ongoing program funding support her position. The Respondent maintains its decision to make Ms McIntosh's position redundant is genuine. While I have considered these submissions, in the circumstances of this case I have insufficient evidence before me to make a finding and, accordingly, I have regarded the merits as a neutral factor.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

• [42] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[19] considered this criterion and said:

"[41] 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."

• [43] I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. While the Respondent submits one other member of staff has also been made redundant, the circumstances surrounding this decision have not been presented. In these circumstances, I determine this factor a neutral consideration in determining whether to grant an extension of time.

• [44] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant.

• [45] An Order[20] reflecting this decision will be issued.

Ms A. Gerlach and Ms M. Brown on behalf of the Respondent.

[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6 - where a period of time 'is expressed to begin after a specified day' the period 'does not include that day').

[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[4] [2011] FWAFB 975.

[5] Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49].

[6] Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

[7] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

[8] [2016] FWCFB 349.

[9] [2018] FWCFB 3288 at [35]- [45].

[10] 4. 01 November 2024 Certificate of Capacity, Court Book page 22.

[11] [2015] FWCFB 287 at [15].

[12] See Gostencnik DP in Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479.

[13] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

[14] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[17] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556.

[18] Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16].

[19] [2016] FWCFB 6963.

[20] PR784299.

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