s.394 - Application for unfair dismissal remedy

Application for unfair dismissal remedy - Terminated at the initiative of the employer - Extension of time not granted - Application dismissed.

• [1] Ms Russell (Applicant) filed with the Commission an application under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy against her former employer, SIA Dental Burwood Pty Ltd (Respondent). The application relates to a period of employment which both parties agree came to an end on 4 June 2025.

• [2] The application was filed on 6 July 2025. The application was therefore filed 11 days outside of the standard time permitted by s.394(2) of the Act. Accordingly, an extension of time is required in order for the application to proceed. Separately to the requirement for an extension of time, the Respondent contends that the Applicant was not dismissed within the meaning of s.386 of the Act and, if she was, it says the Respondent complied with the Small Business Fair Dismissal Code.

• [3] These three preliminary matters were the subject of a hearing on 21 August 2025. Both parties were unrepresented at the hearing, with the Respondent's CEO Mr Nguyen appearing for the Respondent. Both the Applicant and the Respondent were cross examined at the hearing.

• [4] This decision deals with the disposition of the preliminary matters. For the reasons that follow, the Applicant's application for an unfair dismissal remedy must be dismissed.

• [5] The Applicant contends that she was forced to resign by the Respondent. In the alternative, she contends that her employment was terminated at the initiative of the employer.

• [6] The meaning of dismissed is dealt with in section 386 of the Act and admits of a forced resignation, as follows:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

• [7] Language akin to that underlined in both paragraphs (a) and (b) of the definition above has long been relevant to determining disputes concerning employment relationships that, in a formal sense or at face value were brought to an end by way of resignation. Disputes of this nature have commonly been encountered in proceedings in the unfair dismissal jurisdiction. The unfair dismissal jurisdiction has, since its inception, required that there be a termination of employment "at the initiative of the employer" as one of the essential elements. This is rooted in the historical constitutional underpinnings of Commonwealth laws providing for remedies in respect of unfair dismissal, yet the expression has remained a centrepiece of the scheme notwithstanding the shift to reliance on the corporations power and referral of State powers in recent decades. The expression "at the initiative of the employer" and its derivatives have been found to admit of some circumstances where the final act in bringing the employment to an end was an act of the employee claiming the remedy. In considering whether employment "has been terminated on the employer's initiative", a Full Bench of the Australian Industrial Relations Commission in O'Meara v. Stanley Works[1] held that there must be:

"...some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether "the act of the employer [resulted] directly or consequentially in the termination of the employment." Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution.... In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign."[2]

• [8] Explicit reference to a resignation brought about by employer conduct developed in the unfair dismissal provisions of successive Commonwealth workplace relations legislation over the last two decades. In considering whether a resignation has been "forced" in the manner currently dealt with in paragraph (b) of subsection 386(1), a Full Bench of the Commission in Bupa Aged Care Australia v. Tavassoli[3]('Bupa') said:

"A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably [sic] result of the employer's conduct such that the employee had no effective or real choice but to resign." (emphasis in underline and bold added).

• [9] It should be noted that the immediate predecessor of paragraph (b) of subsection 386 (1), section 642(4) of the Workplace Relations Act 1996, referred to "forced" resignation but continued the legislative tradition of requiring such forced resignations to be characterised as a species of termination at the initiative of the employer in order to be actionable as an unfair dismissal. It relevantly provided as follows:

"For the purposes of this Division, the resignation of an employee is taken to constitute the termination of employment at initiative of the employer if the employee can prove that the employee did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by the employer"

• [10] Section 642(4) of the Workplace Relations Act 1996 was considered by a Full Bench of the Australian Industrial Relations Commission in Australian Hearing v. L Peary[4]('Australian Hearing') in circumstances where it was contended by the Appellant that it was an essential ingredient in satisfying that section that the employee prove that the resignation was an intended consequence of conduct or a course of conduct engaged in by the employer. In rejecting that submission, the Full Bench said:

"We cannot accept this construction of the section. The section specifies the matters that an employee who has resigned must prove in order to displace the legal effect of the resignation. The employee must prove that the employer engaged in conduct or a course of conduct which forced the employee to resign. There is no warrant for requiring the employee to prove an additional matter, that the employer intended to force the employee to resign. The plain words of the section deny such a requirement. Furthermore, the section is not directed at the state of mind of the employer, but at the state of mind of the employee. It is particularly difficult for an employee to prove an employer's intention. In that respect it is relevant to note that where the Act imposes a requirement related to the intention or motive of the employer a reverse onus is usually applied."[5]

• [11] In light of the decision in Bupa, it seems that it is no longer the case that the intention of the employer is necessarily irrelevant to determining whether a resignation is "forced" in the relevant sense, although it is not a requirement to show such intention in every case. In any event, there have been differing views to that expressed in Australian Hearing as to the role or relevance of employer intention even when the legislative scheme did require forced resignations to be characterised as "at the initiative of the employer". For example, in Rheinberger v. Huxley Marketing[6], Moore J approached the issue this way:

"The issue that emerges from these facts is whether the applicant has demonstrated there has been a termination of her employment at the initiative of the Company. The applicant relied on several passages from a recent Judgement of a Full Court in Mohazab v. Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200. Particular reliance was placed on the following passage:

'It accords with the purpose of the Convention to treat the expression 'termination at the initiative of the employer' as a reference to a termination that is brought about by an employer and which is not agreed to by the employee...'

These observations had been preceded by a discussion by the Full Cout of the relationship between the Convention concerning Termination of Employment at the Initiative of the Employer, which is Sch 10 to the Act, and the importation into the Act of the meaning of expressions in it by operation of s. 170CB. The applicant further relied on a later passage in which the Full Court said:

'In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action that it did, the employee would have remained in the employment relationship.'

However, it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that employment will conclude. I am prepared to assume, for present purposes that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employers conduct"[7] (emphasis in underline and bold added).

• [12] To similar effect was the decision in Hastie v. Impress Australia[8], which, like Australian Hearing, considered section 642(4) of the Workplace Relations Act 1996 and in addition the particular significance of the then nascent addition of the adjective "forced", which is also now adopted in s. 386(1)(b):

"The employer's conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.

If this were not the case, then it would be difficult to distinguish between many instances of voluntary resignations which arise from a discretionary judgment of the employee, and resignations which are the result of the conduct of the employer. This is because, for all practical purposes, most decisions by an employee to resign their employment arise from the conduct of the employer, in some manner or form. That is, employer conduct is causally responsible at some level for most resignations.

But not all the species of the conduct of an employer have the probable result of the employee's resignation or make the resignation, on an objective view, a reasonable response to the employer's conduct. It is only a sub set of employer conduct that ought to attract the remedy against a harsh, unjust or unreasonable termination of employment based on a termination at the initiative of the employer.

If this is so, in what manner then has the amended statutory provisions affected this approach to determination whether an employee was terminated at the initiative of the employer or if the employee resigned voluntarily?

Putting aside the onus specified in the Act, the critical issue here is whether the inclusion of the adjective "forced" affects in any way of the above discussion of the authorities as they were before the introduction of the Workchoices legislation.

To describe the conduct of the employer as forcing an outcome suggest that the conduct in some manner or form compelled or mandated or obliged or necessitated the resignation of the employee. These seem to be the common dictionary meanings of "forced".

In a narrow sense, no resignation is ever forced unless there is some observable physical intervention by the employer. Consequently, all resignations are likely to be voluntary, in a narrow sense. Such was commented on by Dowsett J in his minority decision in Pawel v Advanced Precast Pty Ltd:

"As to 'compulsion', it is difficult to contemplate circumstances in which it can be said that an employee has been compelled to resign, but not dismissed, unless one accepts the somewhat bizarre reference in the course of argument to an employer holding a gun to the employee's head."

That said, to describe an employer's conduct as forcing a resignation does not demand a narrow reading such as this. Force may be applied in a physical sense, as Dowsett J describes it, or else it may be applied indirectly, by the conduct or the course of conduct by an employer which makes an outcome. Of course, many such examples of such conduct might be provided, and a person may be forced or compelled to adopt a course of action by a variety of actions taken by their employer.

Generally, the exercise of force may take many forms, and there is little point in exploring these in detail. But common manifestations of 'force' will always exhibit an outcome in which a person acts contrary to their desired intention, and because of the conduct of another person that was directed at or towards them.

I do not think the definition should be limited to cases in which an employee can demonstrate that the employer took positive action of some kind that was motivated to bring about the resignation, though many cases no doubt will fall into that category. The conduct of an employer, wilful or not, may nonetheless generate circumstances in which the resignation of an employee was the probable result.

It would appear to me, then, that on an ordinary or natural reading of the term "forced", an employee may be forced (or compelled) to resign for reason of the employer expressly demands the resignation (perhaps, though not necessarily, in conjunction with a threat of termination), or makes the conditions of work so oppressive or repugnant to the employee (and the employment relationship), and/or else, so bears down on the volition of the employee, that the resignation was a reasonable probable response to the circumstances the employee faced at the time.

In effect, therefore, it appears that the inclusion of the adjective "forced" in s.642(4) of the Act does not require a new or additional test as to whether a resignation was at the initiative of the employer to that which may have been alluded to by the Full Bench in O'Meara v Stanley Works Pty Ltd (under the pre-reform Act). Rather, it simply recasts descriptively and makes express the implied nature of a resignation by an employee that is taken to constitute a termination at the initiative of the employer, and it (s.642(4) of the Act) does so in juxtaposition to a "voluntary" resignation. The Explanatory Memorandum, as quoted above, does not invite a different reading.

Further, I note that in some instances in which members of the Commission have applied the test of "force" to a determination as to whether a resignation was termination at the initiative of the employer for purposes of s.642(4) of the Act, they have drawn on the availability of an "effective choice" in demonstration of that finding." (emphasis in underline and bold added, footnotes omitted)."[9]

• [13] In light of the above, in considering the current matter, I have adopted the following approach:

a) A resignation may be forced in the relevant sense either because it was the intended result of the employer's conduct or because the employer's conduct left the employee with no real or effective choice other than to resign. > > b) The inclusion of the word "forced" does not signify that the employee must be physically overborne or be explicitly issued with an ultimatum. The focus is on the conduct of the employer and its intended and/or probable effects.

• [14] The Applicant's evidentiary case in support of her argument that she was forced to resign was that the resignation occurred "after a period of sustained workplace stress and following the receipt of a formal letter of allegations"[10]. The written notice of resignation, dated 3 June 2025, provided a period of 8 weeks notice and acknowledged that this "exceeds the minimum period in my contract". In that written notice the Applicant also stated that she was "..committed to ensuring a smooth transition" and "happy to assist with any reasonable handover in this period".

• [15] Under questioning from me, the Applicant explained her willingness to work an extended notice period on the basis of economic need, noting that as a non-citizen of Australia she was not entitled to any form of income support while seeking alternative employment.[11] As to the reason for her resignation, the Applicant indicated that she thought she was being set up. This apprehension followed the Applicant receiving, earlier that day, written notification that she was to be stood down with pay while "conduct and performance issues" were investigated. By that notification, seven allegations of failures "to complete duties and comply with reasonable management directions" were particularised as were seven allegations of "unprofessional conduct", and references were provided to particular clauses in what was said to be the Applicant's contract of employment that would be considered to have been breached if the allegations were substantiated.[12] The notification directed the Applicant to attend a meeting the next day to respond to the allegations.

• [16] Importantly, insofar as the Applicant's contention that the allegations and proposed meeting were a sham[13] is concerned, the notification referred to above clearly indicated that no final findings as to the allegations or decision as to a response had been made. For example, it variously stated:

"This is not a disciplinary action but a neutral step while we undertake the next stage of this process"

"If the conduct and performance issued described above can be substantiated on a balance of probabilities, we will consider such actions as serious breaches of your most recent employment agreement"

"We want to assure you that currently we have not made any final decision in relation to these matters"

"The purpose of this process and the upcoming meeting is to give you the opportunity to respond and ensure all information is fairly considered before any outcome is determined" (emphasis in italics added).

• [17] The Respondent, appropriately, referred me to several decisions of the Commission which engage with the issue of forced resignation in circumstances where the former employee grounds their argument in facts associated with a disciplinary matter being raised against them. In Pacific National v. Bell[14], relied on by the Respondent, the employee concerned resigned because he accepted he had engaged in misconduct and apprehended that he likely would be terminated as result. The facts here are distinguishable. A further matter relied on the Respondent was Davidson v. The Commonwealth[15] in which the Full Bench appositely stated:

"...the institution of an investigation and the proposed taking of action to suspend an employee during such investigation would not normally provide a basis for a claim of constructive dismissal. Such processes, provided they are accompanied by appropriate protections for the rights of the employee concerned, allow allegations of concern to an employer to be properly examined and tested."[16]

• [18] The Respondent also relied on Love v. Alcoa[17], in which the former employee was found to have made a voluntary decision to resign on the basis of the allegations against him, choosing not to face the allegations in a meeting but instead resign in the absence of any suggestion that the meeting had a pre-determined outcome. This is closer to the situation in the current matter, but ultimately each matter must turn on its facts.

• [19] It is notorious in the field of industrial relations that there are examples of employers that have "said all the right things" in allegation letters but have nonetheless approached an investigative process with, shall we say, a less open mind than statements such as those reproduced in paragraph [16] above might convey. Indeed, it is not unheard of for an allegations letter, an interview script and a dismissal letter to be prepared as "job lot" in advance of a performative meeting with a pre-determined outcome. But mere knowledge that this practice occurs at times in some places is insufficient to impugn evidence relating to particular events. Mr Nguyen confirmed under questioning from me that no final decision was ever made about the conduct alleged being substantiated, because the Applicant's resignation ove[18]ook events.18 Whilst the Applicant did cross examine Mr Nguyen, the questioning did not address this topic. Her own oral evidence sought to highlight that the nature of the allegations raised against her demonstrated that she was subject to micromanagement for a prolonged period of time and that the allegations themselve[19]were minor.19 I disagree that the allegations letter is proof of micromanagement. Whilst some of the allegations raised in it might have been dealt with more appropriately in a less formal way, there is no doubt that the employer was within its rights to raise them (and the Applicant did not suggest otherwise).

• [20] The Applicant places considerable reliance on the fact that some time after her employment ended, she received an e-mail from a human resources consultant engaged by the Respondent that stated, inter alia, that "...had you not resigned, it was highly probable that SIA dental would have brought your employment to an end"[20]. There are several difficulties with the Applicant relying on this communication as a basis for contending that her resignation was forced. Firstly, it is an after the fact characterisation of, or opinion about, what was "probable", rather than evidence of the employer's conduct at the relevant time. Secondly, because the Applicant did not know of this probability at the time of her resignation, it is not open for her to assert that it was an ingredient in her compulsion to resign in response to employer conduct that was bearing upon her volition to remain in employment at the relevant time. Thirdly, it must in any event be weighed against the direct evidence of the decision maker that no final decision had been made. The Applicant also relies on characterisation of how other matters of a disciplinary nature have been addressed in the employer's business.[21] There was no direct evidence given by any of the people concerned in those other matters and I place no weight on those assertions in evaluating whether the Applicant's resignation was forced. The Applicant was able to obtain a concession from Mr Nguyen in cross examination that her own reports about the misconduct of a previous practice manager (who had issued a written warning to the Applicant in December of 2024) were instrumental in the former practice manager's departure from the business in February of 2025[22], but how this was relevant to the circumstances the Applicant found herself in June of 2025 was not addressed in evidence or submissions and I was not invited to make an inference that the allegations made against the Applicant were retaliatory. The Applicant's submission that there was a "direct admission that termination was the employer's intent all along" and that her resignation was "pre-emptive only in response to clear and imminent termination"[23] are not established.

• [21] The other basis upon which it was contended by the Applicant that her resignation had been forced was that she experienced a period of sustained workplace stress. The evidence on this issue was limited to an assertion contained in her application form,[24] her written response to the allegations[25] (which was provided several hours after the Applicant had given notice of her resignation) and the following sentence in her witness statement: "On 3 June 2025, after a period of sustained workplace stress and following receipt of a formal letter of allegations, I made the decision to resign from my role".[26] Nothing was elicited from Mr Ngyuen to add to this. These materials are an insufficient foundation upon which to make any findings about the conduct of the employer that might have led to the Applicant being left with no real or effective choice other than to resign.

• [22] Accordingly, neither of the bases upon which it was put that there had been a forced resignation are made out. But this does not dispose of the question of whether there had been a dismissal. Whilst I have found that the Applicant resigned and was not forced to do so, her resignation is not what brought her employment to an end.

• [23] As noted at paragraph [14] above, the Applicant gave an extended period of notice with her resignation, as she was entitled to. The employer's response to that is captured in the following extract from the Respondent's correspondence to the Applicant following receipt of that notice:

"We confirm your resignation and acknowledge that you have provided a significant amount of notice in excess of the two-week minimum required under your contract. Whilst we are not prepared to accept this extended notice period, as a gesture of goodwill, we are agreeable to a notice period of 4 weeks.

In the circumstances, we feel that it is in the best interests that rather than you working out the notice period, that we will make a payment in lieu of notice to you. Accordingly, your final day of employment with SIA Dental will be recorded as today - 4 June 2025."[27]

• [24] It is not in dispute that the 4 weeks of notice referred to above was paid. The employer has conducted its case on the assumption that once an employee has given notice of resignation, the employer may unilaterally shorten the notice period without that shortening giving rise to a termination at the employer's initiative. It may well be the that the Respondent misunderstood the reasons of the Federal Circuit Court in McGowan v. Direct Mail and Marketing[28], on which reliance was placed, so as to support the position that the giving of notice or payment in lieu of notice under the National Employment Standards means that doing so is not a termination at the initiative of the employer. This is not correct, although it is an error occasionally made.[29] Had an agreed position been reached on a different notice period, the conclusion would be different. However, on the facts presented it is clear that the Applicant had simply given notice, and having done so was entitled to expect that her employment would continue as normal until the date she had identified as last day of employment. The act that directly and consequentially brought the employment to an end on the date that it ended was an act of the employer.[30] The termination was at the initiative of the employer, and was a dismissal within the meaning of section 386. This limb of the Respondent's jurisdictional challenge therefore fails.

• [25] Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(b) whether the person first became aware 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.

• [26] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)[31] a Full Bench of this Commission considered the similar test for extending time for applications for the Commission to deal with disputes over dismissal involving a contravention of Part 3-1, which appears in s. 366(2) of the Act, and said:

[14] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension. A decision whether to extend time under s.366(2) involves the exercise of a discretion.

Furthermore, the Full Bench in that case described the task of discerning exceptional circumstances in a manner that was not consistent with a mere "tick a box" approach to the enumerated considerations, but rather involved an evaluation taking into account matters of weight and degree.[32]

• [27] The meaning of 'exceptional circumstances' in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) as follows:

'[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.'[33]

• [28] Where paragraph (a) of subsection 394(3) requires the reason for "the delay" to be taken into account, the relevant delay is to be taken to be the period between the expiry of the time limit (in this case 25 June 2025) and the filing of the application (in this case 6 July 2025), and does not include the period from the date the dismissal took effect to the end of the 21 day period. Nonetheless, events and circumstances preceding "the delay" may be considered for the purposes of determining the reason for "the delay" and ultimately whether that reason supports a finding that there are exceptional circumstances.[34] An acceptable explanation of the entirety of the delay is not required to make a finding of exceptional circumstances, however it is relevant to have regard to whether the applicant has provided an explanation for the entirety or any part of the delay.[35] Two explanations were offered in this regard. Firstly, it was said by the Applicant that she didn't understand that the relevant time limit would be counting down while she was still negotiating with the Respondent[36] and believed until 1 July 2024 (five days before she did in fact file the Application) that it might be possible to resolve the matter amicably.[37] Secondly, the Applicant suggested that it was not until receiving an e-mail on 1 July from the Respondent's HR consultants[38] that she received confirmation that she had a viable argument that her resignation had been forced.

• [29] Insofar as a lack of understanding of the time limit is concerned, this is not considered an explanation that - without more - assists the finding of exceptional circumstances in the Applicant's favour.[39] Further, the Respondent disputed that the correspondence between the parties after the termination was "negotiation".[40] However that correspondence might be characterised, what is clear (and conceded by the Applicant[41]) is that the subject matter of that correspondence was a dispute about the appropriate period of notice payable in respect of the termination, rather than the termination itself. The correspondence occurred over the period 16 June 2025 to 1 July 2025. On 16 June 2025, in one of many e-mail messages concerning this issue, the Applicant provided in support of her position a link to a section of the Fair Work Ombudsman's website. Under questioning from me the Applicant accepted that she had read the contents of that section of the website before providing the link, and that once she had done so she understood that a person in the situation she found herself in might be able to bring an unfair dismissal claim.[42] This was 9 days prior to the relevant time limit expiring.

• [30] As to the second explanation, the e-mail referred to is the same e-mail as is dealt with at paragraph [20] above. I can appreciate that the Applicant has seized on this as evidence of a pre-determined outcome, but with respect I do not think it is strong evidence in support of a reason for delay in circumstances where the better argument as to there having been a dismissal (and the successful argument in this case) was known to the Applicant before the relevant time period expired.

• [31] I do not regard the explanations for delay given as being supportive of a finding of exceptional circumstances.

Whether the Applicant first became aware the dismissal after it had taken effect

• [32] It is common ground that the Applicant was told of the circumstances that I have found amount to a dismissal on the day that dismissal took effect. I do not consider this matter as weighing in favour of a finding as to the existence of exceptional circumstances.

Action taken by the Applicant to dispute her dismissal

• [33] As noted at paragraph [21] above, after giving notice of her resignation the Applicant provided a written response to the[43]llegations.43 That response denied some of the allegations, provided context and contrition in respect of others and raised some concerns. The Applicant also engaged in a range of correspondence as referred to in paragraph [29] above, however this was directed to the issue of the appropriate amount of payment in lieu of notice rather than the termination itself.

• [34] I accept that the above weigh somewhat in favour of a finding of exceptional circumstances.

• [35] The Respondent has asserted it would be prejudiced by an extension being granted, but the evidence in support of this proposition was limited to a single sentence in Mr Ngyuen's Statement: "Because of this delay, the business had made many operational changes and reinstatement as a potential remedy would be impractical, both based on the operational changes but also the breakdown in trust and in the workplace relationships".[44] The Respondent has not, with respect, satisfactorily articulated how any prejudice arises. It rather appears that this is a matter that, if required to proceed to hearing, would rely heavily on the documents that have already been produced and evidence from Mr Ngyuen, who conceded he was the relevant decision maker at the material time.[45]

• [36] Self-evidently, the granting of an extension of time disadvantages the Respondent in the sense that it neutralises the strategic advantage that the mere lateness of the filing arms the Respondent with, but that can hardly be said to be exceptional. I regard the issue of prejudice to be neutral in my considerations.

• [37] In determining this extension of time application, the parties have not been required to provide detailed evidence on the merits of the substantive matter. This would not have been an appropriate course. Rather, the instant task insofar as it concerns the merit of the matter is to determine whether the Applicant can establish the matter is not without merit.[46] The Respondent submits that the Application has no merit.

• [38] The difficulty that the Respondent faces in this regard is Mr Nguyen's concession in these proceedings that the action he took on 4 June was taken instead of allowing the fact finding process he had initiated through the allegations letter to run its course.[47] It is that action taken on 4 June that I have found to constitute the dismissal. That said, it may be open to the Respondent to prove the allegations in a further hearing were an extension of time to be granted.

• [39] It is not appropriate in these circumstances to treat the merits of the Application as other than a neutral matter.

Fairness between the person and other persons in a similar position

• [40] The Respondent has submitted that other cases involving similar circumstances affirm that an extension of time should not be granted where an individual is ignorant of the statutory time frame.[48] That may be the course of events in many cases, but each turn on their circumstances and without elaboration this observation does not rise to the level of placing me in a position to make a meaningful comparison between the Applicant and other persons in a similar position. I have taken into account the evidence on the Applicant's knowledge of her rights in considering the reasons for delay. The Applicant made no submissions on this issue. I am not satisfied that this issue is a relevant consideration in the present matter.

• [41] Having taken each of the factors referred to in subsection 394(3), I am not persuaded, on balance, to grant the extension of time sought by the Applicant. In my view, none of the matters raised by the Applicant rises to the level of being out of the ordinary course, unusual, or special, or uncommon, whether considered individually or in combination.

• [42] In light of the conclusion reached regarding the extension of time, it is strictly unnecessary to determine this issue.

• [43] For the record, whilst the Applicant was unwilling to accept that the Respondent was a small business, I accept that it was. Much of the Applicant's cross examination of Mr Ngyuen was directed to this issue, to no avail. It seems that the Applicant did not accept that Mr Ngyuen had aggregated the employees of all of the Respondent's associated entities into the headcount of employees that the Respondent relied on. However, Mr Nguyen gave clear and cogent responses to my questions in relation to this issue[49] to supplement the relevant written material.[50]

• [44] The Applicant's application is dismissed. An order giving effect to this decision is published separately.[51]

[1] [2006] AIRC 496.

[3] [2017] FWCFB 3941. See also City of Sydney RSL & Community Club Limited v. Balgowan [2018] FWCFB 5 at [10]- [13].

[4] [2009] AIRCFB 680.

[6] (1996) 67 IR 154.

[8] [2008] AIRC 102.

[9] Hastie v. Impress Australia [2008] AIRC 102 [48]-[51], [54]-[62].

[10] Applicant's witness statement at paragraph 5.

[12] There was some dispute as to which version of the contract was applicable at the time relevant to the allegations: Hearing book p.63.

[14] [2008] AIRCFB 555.

[15] [2011] FWAFB 6265.

[17] [2012] FWCFB 6754.

[24] Application form, Hearing Book Page 6.

[25] Exhibit A12, Hearing Book, page 64.

[26] Exhibit A1, Hearing Book, page 11.

[28] [2016] FCCA 2227 at [77] - [85].

[29] See for example Passmore v. The Trustee for the CBC Lawyers & Anor [2025] FWC 575, Nohra v. Target [2010] FWA 6587.

[30] See Oliver v. Cox Couriers [1996] IRCA 121.

[31] [2018] FWCFB 901.

[32] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) [2018] FWCFB 901 at [38]- [39].

[33] [2011] FWAFB 975.

[34] Kurtev v. KCB Australia & Anor [2025] FWCFB 13 at [24], Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [17].

[35] Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [18].

[39] Mundell v. Avon Products [2013] FWC 1368 at [21], Nicolas v. Nortask [2014] FWC 5324 [62].

[40] PN 139-140, Exhibit R1 Hearing Book p 109.

[44] Exhibit R1, Hearing Book page 109.

[46] Withers v. Contare [2022] FWC 967 at [33]- [37].

[48] Employer response form, Hearing Book p 70.

[51] PR792462.

Printed by authority of the Commonwealth Government Printer