Fair Work Commission|2025-04-03

Ms Katrina Romeo v Services Australia [2025] FWC 945 (3 April 2025)

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time to lodge application - credible reason for delay - consideration of other factors under section 394(3) of the Act weighed - no exceptional circumstances - application to be dismissed.

[1] Ms Katrina Romeo (the Applicant) was dismissed from her employment with Services Australia (the Respondent) on 30 August 2024. Her employment was terminated under section 29(1) of the Public Service Act 1990 (Cth) on "the grounds of inability to perform duties because of physical or mental incapacity."[1] Ms Romeo had not performed work for the Respondent since August 2023, after which she had been absent from work on account of mental illness.

[2] Ms Romeo filed an application for unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act) on 8 October 2024.

[3] The termination of Ms Romeo's employment followed a process that took place over a number of months (the determination period). During the determination period, Ms Romeo was afforded interim payments from the Commonwealth Superannuation Corporation (CSC) whilst her eligibility for termination on the grounds of incapacity was determined.

[4] Ms Romeo's application for unfair dismissal was filed 39 days after her termination, or 18 days after the statutory time period of 21 days[2] to file the claim had expired. If it were filed on time, it ought to have been filed by 20 September 2024. She has sought an extension of time to file her claim.

[5] Ms Romeo asserts that her mental incapacity and the illness, hospitalisation and subsequent passing of her father, which resulted in her suffering a temporary psychiatric condition, provide a valid reason for the delay and constitute the exceptional circumstances required by the Act[3] before discretion can be exercised to extend the time to file an unfair dismissal application.

[6] The Respondent asserts that on the material available to the Commission, the Commission can conclude that Ms Romeo's substantive application has no merit. The lack of merit was asserted by the Respondent as the most compelling factor that ought to weigh against a finding of exceptional circumstances. The Respondent argued that Ms Romeo had in fact requested the termination of her employment, including nominating the actual date of termination, as part of applying for an insurance benefit from her superannuation scheme payable on invalidity retirement.

[7] The Respondent says that Ms Romeo engaged with them during the determination period with respect to her claim and knew, or ought to have known, that the process she engaged in was leading to the termination of her employment on the grounds of medical incapacity.

[8] The Respondent also argued that Ms Romeo did not dispute the termination after she received written notification, until she lodged this application. They argue this factor should also weigh against a finding that exceptional circumstances exist and consequently, the Commission's discretion to extend the time cannot be exercised.

[9] I set out my findings and reasons below. In summary, I find that Ms Romeo has a valid reason for the delay in filing her claim, in particular, the illness and ultimate passing of her father at the critical time that her claim was due to be filed. However, I have balanced that finding against findings that Ms Romeo's case is not an arguable one and that once her termination was confirmed in writing, on the date she nominated for her employment to come to an end, she did not take steps to dispute the termination before filing this application. In weighing those factors, I conclude that no exceptional circumstances exist in this matter and the Commission's discretion to extend time cannot be exercised.

[10] The Applicant commenced employment on 27 November 2000 with Services Australia (as it is now known) and at the time of her termination was a Senior Service Officer.[4]

[11] Ms Romeo was given the opportunity to act in a higher classification as an Authorised Review Officer on a temporary basis, however, in February 2023, the appointment was not continued and she returned to her substantive role. Ms Romeo described this as being "demoted back".[5] Ms Romeo said that following the 'demotion' she "felt upset, confused and was physically unable to function or concentrate at work".[6] On 1 March 2023, when her attendance at a training course for people at the level of her acting role was queried by a colleague, she reported having a "severe panic attack".[7]

[12] In the days following Ms Romeo worked "periodically from home as [she] felt too humiliated to attend work in person"[8] and after attempting to return to work on 9 March 2023, and having a further panic attack, Ms Romeo did not return to work again.

[13] Ms Romeo made a workers compensation claim under the Commonwealth Comcare scheme which was rejected on 8 May 2023. She subsequently commenced proceedings to dispute the rejection in the Administrative Appeals Tribunal[9] (AAT) on 19 September 2023.[10] Ms Romeo has been represented by the law firm that represented her in these proceedings for the entirety of the AAT proceedings.[11]

[14] On 11 August 2023, Ms Romeo emailed human resources at Services Australia, saying: "I have been on LWOP [leave without pay] since about March/April 2023 due to a medical condition, I would like to find out what my options are as I am not well enough to return to work and I don't think I can. I look forward to your response."[12]

[15] The Acting Assistant Director of the People Support Team (PST), National Early Intervention Team, responded on 14 August 2023 saying: "I can see that you're in PSS [Public Sector Superannuation] which means we are able to test your eligibility for invalidity retirement. If that is something you wish to consider I can provide you with a questionnaire for your GP [general practitioner]."[13]

[16] The Applicant responded on the same day: "My doctor doesn't think I will be able to return to work at all. I don't know much about invalidity retirement but will need to test my eligibility, if you can send me any information about it and any forms I might need completed please."[14]

[17] A member of the PST responded on 16 August 2023 suggesting a telephone discussion about the next steps. Ms Romeo responded: "Please advise next steps via email."[15]

[18] On 17 August 2023, the PST confirmed by email that in order to test eligibility for invalidity retirement, the Commonwealth Superannuation Company (CSC) and the particular superannuation stream PSS, would require medical evidence from the Applicant's general practitioner and an independent medical examiner, which they would arrange. The PST set out that the medical evidence would then be sent with an application for an Invalidity Retirement Certificate to the CSC who would determine eligibility for an invalidity retirement certificate.[16]

[19] The correspondence also set out that while the process takes place and a decision is made whether to issue a certificate, Ms Romeo would likely be offered 'Pre-Assessment Payments'. The PST advised that the payments would not be deducted from any invalidity benefit which might become payable on medical retirement and do not have to be repaid if the application for a certificate is unsuccessful.

[20] In evidence before me was some medical evidence about the Applicant's diagnosed mental health conditions and the history of those conditions. The medical practitioners who provided the reports were not called to give evidence, but regardless, I have no reason to doubt the medical history or diagnoses addressed in the reports of Doctor Wong, General Practitioner, and Associate Professor Khalid, Psychiatrist.

[21] In a medical report dated 20 October 2023,[17] Dr Wong, the Applicant's General Practitioner, confirmed the Applicant's diagnoses of a Major Depressive Disorder, Anxiety and Post Traumatic Stress Disorder dating from March 2023. Dr Wong describes Ms Romeo as being "harassed by her own colleagues and management team at work"[18] which precipitated the onset of her mental health conditions.

[22] In his medical report, Dr Wong opined: "based on the severity of Ms Romeo's conditions and lack of improvement from March until now, I do not think a full recovery will be made."[19] Dr Wong diagnoses Ms Romeo with a Major Depressive Disorder, Anxiety and Post Traumatic Stress Disorder. He says:

"Ms Romeo does not have the mental capacity to work with these conditions or symptoms. Due to the combined symptoms of these conditions being levels of concentration affected, memory affected, forgetfulness, agitation, inability to function day today, insomnia, withdrawn, fearful of people approaching, random irrational snippets of thoughts and trouble interacting with people etc."[20]

[23] In response to the question raised by the Respondent in requesting the report "Is the individual totally and permanently incapacitated?" Dr Wong answered: "in my opinion, yes."[21]

[24] As the next step in assessing Ms Romeo's eligibility for medical retirement, Services Australia arranged for her to consult with Associate Professor Khalid on 9 October 2023. His report of 17 October 2023 noted that "It is possible that Ms Romeo may not be able to work again in a job in which she is reasonably qualified by education, training or experience or could be so qualified after retraining".[22] The Associate Professor took note that Ms Romeo had not received treatment from a psychiatrist and reached a view that it was, therefore, too early to determine if she was permanently incapacitated for work.[23] The Associate Professor did note that Ms Romeo did not want to return to work with Services Australia.

[25] On 30 October 2023, Services Australia made an application to the CSC for pre-assessment payments on behalf of Ms Romeo.[24] The application for payments was approved in a decision of the CSC dated 18 December 2023. The pre-assessment payments were back dated with effect from 13 April 2023.[25]

[26] The decision of the CSC noted that pre-assessment payments can cease in circumstances that include when a decision to approve invalidity retirement is made, there is a return to work, the cessation of membership of the superannuation stream or if the relevant person was required to undergo rehabilitation or medical examination and refused to comply. The decision also noted Ms Romeo's option to appeal the decision or otherwise reconsider it if she was unhappy with the outcome.

[27] It appears that Ms Romeo continued to receive pre-assessment payments for some time before her incapacity for work was re-assessed in mid-2024.

[28] Associate Professor Khalid again consulted with Ms Romeo on 1 July 2024 and wrote a further report dated 11 July 2024.[26] In this updated report he opined that:

(a) Ms Romeo's psychiatric conditions had become chronic;

(b) That Ms Romeo did not have capacity to participate in a recovery at work/return-to-work program;

(c) Ms Romeo is "unlikely ever to work again in a job for which she is reasonably qualified by education, training or experience or could be so qualified after retraining";[27] and
(d) That she "may be considered to be permanently and totally incapacitated at this time;"[28]

(e) It is unlikely that Ms Romeo's condition will improve in the future.

[29] On 30 July 2024, Ms Romeo was advised in a letter sent by the Respondent that the report of Associate Professor Khalid had been provided to Dr Wong and that a copy of the report was to be sent to the CSC "for consideration of Invalidity Retirement" unless the Applicant contacted Ms Sacco, her case manager at Services Australia, by 13 August 2024.[29]

[30] On 22 August 2024, Ms Sacco sent a copy of Associate Professor Khalid's report to the CSC, noting that Ms Romeo had not contacted her to voice any views or concerns about the report. On the same day, Ms Sacco sent an email to Ms Romeo which said: "I have now sent Dr Khalid's report on to CSC for consideration of Invalidity Retirement."[30]

[31] On 27 August 2024, the CSC sent correspondence to Ms Romeo with the subject: "Your Invalidity Retirement Certificate is Approved". The letter says: "After consideration of the reports of medical practitioners and any other matters considered relevant, the Delegate of CSC has decided your medical condition/s cause you to be totally and permanently incapacitated and we have approved your retirement on invalidity grounds and wish to advise that you are entitled to receive invalidity benefits."[31]

[32] Ms Romeo then sent an email to Ms Sacco on 28 August 2024 saying: "Can you forward a notice of termination and departmental report effective from 29/08/2024 so pension payments can commence."[32]

[33] Ms Sacco responded on 29 August 2024: "Please nominate your retirement date in writing to allow the termination process to commence."[33]

[34] Ms Romeo responded: "My retirement date is 29/08/2024. Please advise the expected timeframe for this to be finalised?"[34]

[35] Also on 29 August 2024, Services Australia wrote to Ms Romeo regarding the proposed termination of her employment. The correspondence said: "As a result of CSC's decision, I propose to terminate your employment on the grounds of inability to perform duties because of physical or mental incapacity."[35] The letter also noted that given the Applicant's request for a notice of termination and a departmental report effective from 29 August 2024 to be sent to the CSC in order for payment of pension payments to commence, the Applicant was consequently waiving her right to provide further comment about her retirement date of 29 August 2024.

[36] On 30 August 2024, the Respondent sent correspondence to Ms Romeo terminating her employment. The letter conveyed that Ms Oliver, Director of the Human Resources Support Team was "satisfied that your employment should be terminated in accordance with subsection 29(3)(d) of the Public Service Act 1999, on the grounds of inability to perform duties because of physical or mental incapacity."[36] Attached to the correspondence was a formal notice of termination under section 29(1) of the Public Service Act 1999 (Cth) (the PS Act).

[37] This correspondence notably advised: "if you believe that termination of your employment may be unfair, or in breach of the Fair Work Act 2009, you should contact the Fair Work Commission."[37]

[38] Section 29 of the PS Act prescribes:

(1) An Agency Head may at any time, by notice in writing, terminate the employment of an APS employee in the Agency.

Note 1: The Fair Work Act 2009 has rules and entitlements that apply to termination of employment.

Note 2: Commissioner's Directions issued under subsection 11A(1) may set out procedures to be followed in terminating the employment of an APS employee.

(2) For an ongoing APS employee, the notice must specify the ground or grounds that are relied on for the termination.

(3) For an ongoing APS employee, the following are the only grounds for termination:

(a) the employee is excess to the requirements of the Agency;

(b) the employee lacks, or has lost, an essential qualification for performing his or her duties;

(d) inability to perform duties because of physical or mental incapacity;

(e) failure to satisfactorily complete an entry‑level training course;

(f) failure to meet a condition imposed under subsection 22(6);

(h) any other ground prescribed by the regulations.

[39] Ms Romeo gave evidence that her father was admitted to hospital via the Emergency Department at the Royal Adelaide Hospital on 11 September 2024, some 12 days after her termination, and subsequently diagnosed with pneumonia. On 14 September 2024, Ms Romeo was advised that the pneumonia had spread to her father's other lung, and her father's condition continued to worsen. On 21 September 2024, he passed away.

[40] Ms Romeo says that she started drafting her application for unfair dismissal on 29 September 2024, some 9 days after the claim was due to be filed in accordance with the statutory requirements, with the help of her mother. She said in her evidence: "My mother and I could not complete the application as we lost concentration with how we were feeling"[38] and ultimately completed and filed the application on 8 October 2024.

[41] 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 factors:

(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.

[42] 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.

[43] It is well established that the matters relied upon as 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."[39]

[44] The Applicant asserts that the reasons for the delay in filing her application was primarily the distraction and grief caused by her father's illness and subsequent passing,[40] her pre-existing mental health conditions and the temporary psychiatric condition arising from her father's death diagnosed by Dr Wong.

[45] I accept the evidence of the Applicant that her father was admitted to hospital approximately 12 days after her dismissal. This was within the statutory time period. It seems that her father's health further deteriorated and he passed away another 10 days after his hospital admission. Ms Romeo gave evidence that in the period of time in which her father was hospitalised she was "an absolute mess ... all I could think about was my Dad in that period. I couldn't focus or do anything else or think what needed to be done."[41]

[46] In the letter from Dr Wong of 29 October 2024, referred to above, he also referred to Ms Romeo "suffering significant grief from the death of her father ... on 21st September 2024, that culminated in a temporary psychiatric condition, post-traumatic stress disorder (PTSD) for at least 4 weeks period following his passing. I would assume that this was the significant reason why [Ms Romeo] was unable to deal with any legal issue during this difficult time."[42]

[47] Ms Romeo described, and I accept, that she had a very close relationship with her father and that after his passing she felt "helpless and devastated".[43]

[48] The statutory time period concluded 21 days after Ms Romeo's dismissal on 30 August 2024, being 20 September 2024. Ms Romeo's father passed away the following day.

[49] The Applicant provided some evidence, including the letter from Dr Wong, that her profound grief led to a diagnosis of temporary post-traumatic stress disorder (PTSD) for a period of 4 weeks following her father's death. The period of Ms Romeo's PTSD covers the period of the 18-day delay in the filing of her unfair dismissal application.

[50] As the Respondent noted in their submissions,[44] Deputy President Easton summarised the relevant principles derived from cases decided by the Commission when considering poor mental health as a reason for delay in the matter of Blanco v White Bathroom Co. Pty Ltd:[45]

"[51] In summary the following principles apply:

(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves;

(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the Applicant's capacity to lodge the application within the statutory time limit;

(iii) the evidence should positively demonstrate that the Applicant's depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame; and

(iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient."[46]

[51] I accept that Ms Romeo was significantly incapacitated by grief and PTSD in the period in which she delayed in filing her claim. This is not a case where the Applicant is asserting that shock and stress from the dismissal was the reason for delay.[47] The Applicant says that: "[t]he exceptional circumstances are clearly the psychological issues that affected my ability to concentrate, or act."[48] Ms Romeo suffered a diagnosed psychiatric injury as a result of her father's death that occurred relatively soon after the termination of her employment. Further, considering the other medical evidence submitted in this matter that was obtained in the course of assessing the Applicant's eligibility for invalidity retirement, it is clear that the Applicant has a significant psychological condition.

[52] The Respondent says that the reasons advanced by the Applicant for the late filing are not acceptable or reasonable explanations for the delay.[49] The Respondent submitted that simply because the Applicant is totally incapacitated for work does not mean she was incapacitated to an extent that would render her unable to lodge this application.[50] The Respondent points to the Applicant's correspondence with them up to two days prior to her termination as evidence of her capacity to file the application and notes what it says is the less than onerous task to file a claim in the Commission.[51]

[53] I do not accept the submissions of the Respondent in this regard. I accept that the Applicant was significantly incapacitated by her mental illness prior to her termination and even more so after her father's death. The illness had a material impact on Ms Romeo's capacity to lodge the application. This view is supported by medical evidence and does not rely on the Applicant's own self-assessment of her mental health and incapacity.

[54] I also take the view that the serious illness and hospitalisation of the Applicant's father during the statutory time period and his death the day after the expiration of the statutory time period is an exceptional circumstance in that it is out of the ordinary course and uncommon. In addition to that uncommon circumstance is the Applicant's subsequent diagnosis with PTSD for a short period following her father's passing which makes the situation even more out of the ordinary course.

[55] I have considered the Respondent's submission that the Applicant could have instructed her solicitors to file the application on her behalf to ensure it was filed within time.[52] The Applicant's submissions noted that her solicitors in this matter have represented Ms Romeo since at least the commencement of a dispute regarding a claim for workers compensation entitlements in the Administrative Review Tribunal in September 2023.[53]

[56] I accept that the Applicant had an existing relationship with her solicitors in this proceeding at the time of her dismissal and did not seek their advice following her dismissal when that was an option available to her. I have weighed this against the finding I have made that Ms Romeo's mental health materially affected her ability to file the claim. The events regarding Ms Romeo's father overtook the situation part-way into the statutory time period and likely impacted her ability to give attention to filing the unfair dismissal claim.

[57] Ms Romeo's focus on her father's illness and deteriorated mental health at the time of her father's illness and death provides an acceptable and reasonable explanation for the delay.

[58] This factor weighs in favour of a finding of exceptional circumstances exist in this case.

When the Applicant first became aware of the dismissal

[59] The Applicant says that she received the Respondent's correspondence regarding the intent to terminate her employment on 29 August 2024 but did not receive the letter of termination on 30 August 2024 when it was sent. Ms Romeo says that she more likely opened the email with the letter of termination attached on 1 or 2 September 2024.[54] Ms Romeo accepts, however, that her application was filed outside of the statutory time period even if she read the letter of termination on 1 or 2 September 2024.[55]

[60] The Applicant had the majority of the statutory time period in which to lodge her claim. This is not a factor that weighs for, or against, any finding I have to make in this matter.

Prejudice to the employer, including prejudice caused by the delay

[61] The Respondent submits that it would be prejudiced if the extension of time were granted by incurring legal fees to defend the substantive application. This kind of prejudice could be asserted by all Respondents to claims made by Applicants in this jurisdiction.

[62] There is otherwise no identified prejudice to the Respondent in extending the time for Ms Romeo to file her application. It is, however, well established that the mere absence of prejudice to the Respondent is not a factor that ought to weigh in favour of a granting of an extension[56] of time to file an application.

[63] This consideration is neutral in my decision.

[64] The Respondent submitted that "[r]ather unusually, ... materials establishing all critical facts going to the merits of the case are conveniently set out in the documentary material"[57] filed as the Respondent's evidence. The Respondent argued that "all critical facts going to the merits of the case can be conclusively and incontrovertibly established "on the papers" ... and none of the critical facts going to the merits of the case are genuinely in dispute".[58] The Respondent further asserted that "on the evidence before the FWC it should conclude it is clear that the Applicant's application is absent of merit. A such, this factor weighs heavily against the Applicant being granted an extension of time."[59]

[65] However, the Applicant's representative argued that no findings can be made in regard to merit in this hearing and the Applicant:

"[D]oes intend to lead evidence in support of the merits of her case in a forum where findings can be made as to what the Applicant believed she was agreeing to, what she understood was going to occur in those days in August and whether or not that renders a finding of harsh, unjust or unreasonable for her termination. But we would say that beyond that, the reason for the delay, what we are saying should be granted, should not prevent her from being able to address that in a substantive merits hearing."[60]

[66] The assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[61] Further, the primary consideration is whether the Applicant has an arguable case.[62]

[67] The Respondent placed into evidence a number of written correspondences about what transpired in the period of time that led to the Applicant's dismissal. The exchanges are primarily in writing because Ms Romeo made clear to the Respondent that she could only communicate in writing regarding work matters.[63] The Applicant also provided a witness statement and gave oral evidence addressing the aspects of the events leading to her termination.

[68] The Respondent argues that it had a clear, valid reason for termination, being the Applicant's total and permanent incapacity for work as supported by medical evidence and her resulting inability to perform the inherent requirements of her role. The Respondent also asserts that the decision to dismiss Ms Romeo was "arrived at following a fair process"[64] that included the Applicant making a request to be assessed for incapacity related retirement, the obtaining of medical evidence supportive of a finding of permanent incapacity, inviting the Applicant's comment on the medical evidence, the Applicant's willingness to participate in the process and the Respondent acting in accordance with the Applicant's request to terminate her employment on a particular date.

[69] The Applicant disagreed with the position put by the Respondent and maintained in the hearing that she was incapacitated at the time of her dismissal but that she would likely regain capacity in the future.[65] This assertion of the Applicant was not supported by the medical evidence, her presentation as someone significantly affected by mental illness and her absence from work since 9 March 2023. Ms Romeo, in cross examination, also agreed that she did not inform the Respondent of her view that she would likely regain capacity in the future[66] during the process that led to her retirement on the grounds of invalidity.

[70] Importantly, the Applicant approached the Respondent about options with respect to her employment because she did not feel that she could return to work on account of her medical conditions.[67] The Respondent offered Ms Romeo the option of being retired on the grounds of invalidity, which would then enable the Applicant to access an insurance benefit through the CSC. Whilst the Applicant's eligibility for invalidity retirement was being assessed, she was entitled to, and received, interim benefits of weekly income payments. When medical opinions were collated from the Applicant's treating General Practitioner and an independent psychiatrist, they made clear that the Applicant was currently totally incapacitated for work and would remain totally incapacitated into the future.

[71] With respect to the Respondent's assertion that the termination of Ms Romeo from her employment was affected after a fair process,[68] the evidence shows that the Respondent assisted the Applicant through a multi-step process to ascertain whether she was totally and permanently incapacitated for work and therefore eligible for termination on the basis of invalidity. The Applicant was given an opportunity to discuss her views about the opinions reached by the independent psychiatrist with her own treating doctor. Her treating doctor's views were also ascertained by the Respondent and the CSC. The Applicant did not voice any objections about the contents of the report of the independent psychiatrist, nor assert that she expected to regain capacity for work.

[72] In response to an enquiry about the process from the Applicant, the Respondent set out the relevant steps in writing to the Applicant on 17 August 2023, including advising her that: "Once both medical reports have been received, an application for an Invalidity Retirement Certificate (IRC) will be lodged to CSC. CSC will determine your eligibility for an invalidity retirement certificate."[69]

[73] Ms Romeo did not expressly assert that she did not give her consent to the process of invalidity retirement being commenced, but that she did not know, or did not intend, that the invalidity retirement process would result in the termination of her employment.[70] The Applicant said in her evidence:

"[I]t was not my intention [to be retired]. My intention was never to be retired. It was a way I needed money while I was on leave without pay until I could get better to return myself to work. I haven't had an opportunity to get better to even have an option to return back to work."[71]

[74] Ms Romeo insisted that she was not asking the Respondent to apply for an invalidity retirement certificate on her behalf that would result in the conclusion of her employment, but rather she was seeking "to receive pre-assessment payments, which would have given me time while I was on leave without pay to try and keep a roof over my children's head and find a way to get better".[72]

[75] Ms Romeo became upset and defensive in her evidence when questioned about her understanding that her employment would end if she met the criteria for invalidity retirement, emphasising that she expected to receive weekly insurance payments for an interim period until she could return to work. Ms Romeo was emphatic that she did not know her employment would be terminated as a result of the process of seeking invalidity retirement.

[76] Counsel for the Respondent asked Ms Romeo in cross examination: "Now retirement is something that happens when your employment ends, isn't it?" Ms Romeo responded: "It would usually be after you have finished employment."[73] With Ms Romeo conveying her general understanding that retirement occurs after the end of a person's employment, it is unclear how Ms Romeo formed a view in her case that an application for invalidity retirement would not end in the cessation of her employment.

[77] When questioned about why she ultimately asked the Respondent for a notice of termination and provided a retirement date, the Applicant explained her understanding:

"[I]t was how I had to respond with these dates, so the pension payments I was receiving while I was off work without pay would continue past that date because I understood they were going to stop my payments from the 28th of August and if I didn't get back to them with this information then I wouldn't have been receiving any money and I would have defaulted on my mortgage payments because we wouldn't have had that extra income."[74]

[78] Ms Romeo also said that she felt she had to confirm her retirement date when her employer asked her to nominate one and when asked by her representative in oral evidence "did you understand that this would mean the end of your employment?" she answered "no" and said that she did not understand her employment would be terminated until she received the termination letter.[75]

[79] The Respondent submits that the Commission should find Ms Romeo's application is without merit, and consequently that this factor ought to weigh heavily against the granting of an extension of time.[76]

[80] With respect to the issue of merit, the Applicant says that she ought to be afforded a full opportunity to argue the merits at a hearing, she has an ability to undertake the inherent requirements of her job or other meaningful work for which she is fit, but otherwise accepts she is currently totally incapacitated.

[81] Significant documentary evidence is before me in this matter that is relevant to a determination on the merits of this case. However, it is only necessary for me to consider whether the Applicant has an arguable case, or as the Respondent describes it, whether the Applicant's case is without merit.

[82] On the material before me, Ms Romeo does not have an arguable case. The evidence makes clear that the Respondent had a valid reason for termination because Ms Romeo is unfit to perform her role, or any other role for the Respondent, on a permanent basis. Any assertion by the Applicant that she will regain capacity for work with the Respondent in the future is not supported by the medical evidence available. The medical evidence directly addressed Ms Romeo's total and permanent incapacity for work for which she is reasonably trained and qualified into the future.

[83] Further, Ms Romeo approached the Respondent about her options when she formed a view in August 2023 that she was unlikely to be able to return to work. An option presented to her was to access interim weekly payments whilst her eligibility for invalidity retirement and ongoing weekly insurance payments was assessed. Ms Romeo voluntarily participated in the process to evaluate her incapacity and accepted the weekly payments that were paid while that process occurred. When she was deemed eligible for insurance benefits because of her total and permanent incapacity for work, Ms Romeo expressly accepted her retirement to access ongoing payments when she asked for a notice of termination and nominated her termination date.

[84] I cannot accept Ms Romeo's evidence that after she willingly participated in a process to assess eligibility for incapacity related retirement and nominated her termination date that she did not understand that her employment may be terminated. Ms Romeo engaged in communication with the Respondent, at least at the end of the process, that made clear she understood her employment was to be terminated when she sought a notice of termination and provided a retirement date. I cannot see any basis in Ms Romeo's evidence for her assertion that she did not understand her employment may come to an end on account of incapacity related retirement. Ms Romeo, in participating in the process, represented to the Respondent that she was seeking an insurance benefit only available if she met the criteria for retirement on the basis of invalidity.

[85] I agree with the Respondent's submission that there is no basis in the medical evidence for Ms Romeo's assertion that she has any capacity for work or will regain capacity for work for which she is reasonably trained and qualified. Ms Romeo appears to make such a suggestion now to support her unfair dismissal claim. Ms Romeo had the opportunity to express any contrary views about the opinions of Associate Professor Khalid after consulting with her treating doctor about the Associate Professor's report. Ms Romeo did not proffer any objection to Associate Professor Khalid's findings and in fact his findings regarding Ms Romeo's future incapacity align with the opinion of her treating doctor.

[86] There is also sufficient evidence before me to form a preliminary view that Ms Romeo's termination came about after a lengthy process in which Ms Romeo was offered opportunities to be heard about her views regarding proposed invalidity retirement and even invited to nominate her retirement date.

[87] After giving the merits of the case preliminary consideration, and for the reasons set out, it is my view that Ms Romeo does not have an arguable case.

[88] Somewhat unusually, there was significant evidence before me that revealed a valid reason for the Applicant's termination and that Ms Romeo had been given opportunities to respond to, and engage with, the reason for her dismissal as it related to her capacity.

[89] As Ms Romeo herself required all exchanges between her and the Respondent to be undertaken in writing, I accept the Respondent's submission that the available evidence of correspondence between the parties was before me. Furthermore, the Applicant was taken to each of the correspondences and events leading to her termination in cross examination such that I cannot see how further relevant evidence could be adduced by the Applicant in a hearing about the merits of her claim. Whilst Ms Romeo's representative asserted that a full hearing of the merits was sought by the Applicant, and that she intended to lead evidence about what she believed she was agreeing to and what she understood was going to occur in the period of time leading to her termination,[77] that evidence was adduced from the Applicant in oral evidence during the hearing of this matter. This gives me greater confidence in my preliminary consideration and resultant finding that Ms Romeo does not have an arguable case.

[90] The finding that Ms Romeo does not have an arguable case weighs heavily against a decision to extend the time for Ms Romeo to file her application.

Any action taken by the applicant to dispute the dismissal

[91] The Applicant noted she was "in shock by [her] employer's action"[78] when she opened the correspondence from the Respondent notifying of their intention to terminate her employment on 29 August 2024.

[92] Despite her purported shock, there is no evidence that Ms Romeo took any action to contact her solicitor to ask about her options to dispute the termination within a reasonable time following the termination[79] or that she approached Ms Sacco to enquire about why her employment had been terminated. I note the termination occurred before Ms Romeo's father was admitted to hospital. There is no evidence that Ms Romeo took any action to dispute the dismissal until she filed her unfair dismissal claim.

[93] Ms Romeo's claim that she was shocked when her employer notified her of the proposed termination appears contradictory to the earlier communications in writing with the Respondent where Ms Romeo asked for a notice of termination to be sent to the CSC so her ongoing payments could commence, and when asked to nominate a retirement date to allow the termination process to commence, Ms Romeo responded in less than an hour to nominate her retirement date as that day and ask when the matter would be finalised.

[94] If Ms Romeo genuinely held the view that her termination was unexpected then it would be likely that she would at least make efforts to contact Ms Sacco, a person with whom she had had some contact in the invalidity retirement process, to question the decision or express her dismay. That did not occur. When asked by the Respondent's Counsel in the hearing: "If it is your evidence that this [the termination] was all a big misunderstanding and not your intention at all why didn't you just email Ms Sacco and ask for clarification or ask for the decision to be reversed?" Ms Romeo responded: "I guess based on what happened to me at work I didn't trust anybody at Services Australia or anything they were going to tell me."[80]

[95] The Respondent was not on notice that Ms Romeo took any issue with the termination of her employment until she filed this application.

[96] This factor also weighs against a decision to extend the time in this matter.

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

[97] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[81] 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."[82]

[98] The Respondent's Counsel described this matter as an "unusual case".[83] I concur with this view. It turns on its own, somewhat unusual, facts. I have, however, considered Ms Romeo's application in light of the matters to which I have to have regard under section 394(3) of the Act.

[99] Consequently, this consideration is neutral in my decision.

[100] I have found that Ms Romeo has a credible reason for the delay in filing her claim which weighs in favour of a finding that exceptional circumstances exist in this case and an extension of time should be granted. However, when weighed against the findings that Ms Romeo does not have an arguable claim for unfair dismissal and she failed to dispute the termination when she says she was surprised and shocked by it, the latter considerations outweigh the existence of a credible reason for the delay in respect of whether an extension of time should be granted.

[101] I therefore find that there are no exceptional circumstances in this matter which would allow me to consider exercising my discretion to extend the time for Ms Romeo to file her unfair dismissal claim. The application will be dismissed in an order that accompanies this decision.[84]

H Pocock of WK Lawyers with permission, on behalf of the Applicant, K Romeo.

S Cheligoy instructed by Norton Rose Fulbright Australia with permission, with S Granger on behalf of Services Australia.

[1] Notice of Termination of Employment letter, dated 30 August 2024.

[4] Statement of Applicant for proceedings in Administrative Appeals Tribunal dated 5 April 2024 at paragraph 11.

[10] Submissions of the Applicant dated 30 October 2024 at paragraph 17.

[12] Exhibit ES 5 to the Statement of Ms Sacco.

[17] Exhibit ES 4 to the Statement of Ms Sacco.

[22] Exhibit ES 3 to the Statement of Ms Sacco at 13.

[24] Statement of Ms Sacco at paragraph 15b.

[25] Exhibit ES 7 to the Statement of Ms Sacco.

[26] Exhibit ES 10 to the Statement of Ms Sacco.

[29] Exhibit ES 10 to the Statement of Ms Sacco - letter dated 30 July 2024.

[30] Exhibit ES 19 to the Statement of Ms Sacco.

[31] Exhibit ES 17 to the Statement of Ms Sacco.

[32] Exhibit ES 18 to the Statement of Ms Sacco.

[35] Exhibit ES 21 to the Statement of Ms Sacco.

[36] Exhibit ES 22 to the Statement of Ms Sacco.

[38] Statement of Applicant at paragraph 41.

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

[40] Submissions of the Applicant at paragraph 13.

[41] Audio recording of hearing - Day 1 Part 2 at 21:26.

[42] Exhibit A5 to the Submissions of the Applicant.

[43] Statement of Applicant at paragraph 38.

[44] Submissions of the Respondent at paragraph 26.

[47] However, the Applicant does note that she was shocked by the employer's action to dismiss after receiving the letter - see Statement of Ms Romeo at paragraph 20.

[48] Statement of the Applicant at paragraph 47.

[49] Submissions of the Respondent at paragraph 28.

[53] Submissions of the Applicant at paragraph 17.

[56] Musa v Fresh Fields Management (NSW) Pty Ltd [2024] FWC 2996 at [59]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [38].

[57] Submissions of the Respondent at paragraph 40.

[60] Audio recording of hearing - Day 2 at 11:33 - 12:16.

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

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

[63] See email from Applicant to Respondent of 16 August 2023, Exhibit ES 5 to Statement of Ms Sacco. Also email of 29 August 2024, Exhibit ES 19 to Statement of Ms Sacco.

[64] Submissions of the Respondent at paragraph 42 c.

[65] Audio recording of hearing - Day 1 Part 2 at 27:36 and Statement of the Applicant at paragraph 8.

[66] Audio recording of hearing - Day 1 Part 2 at 27:38.

[67] Email from Applicant to Respondent dated 11 August 2023, Exhibit ES5 to the Statement of Ms Sacco.

[68] Submissions of the Respondent at paragraph 42 c.

[69] Email from Respondent to the Applicant dated 17 August 2023, Exhibit ES5 to the Statement of Ms Sacco.

[70] Audio recording of hearing - Day 1 Part 2 at 35:16.

[76] Submissions of the Respondent at paragraph 44.

[77] Audio recording of hearing - Day 2 at 11:33 - 12:16.

[78] Statement of the Applicant at paragraph 20.

[79] See Audio recording of hearing - Day 1 Part 2 at 1:15:54.58

[82] Ibid at paragraph [14]. See also Higgins v FQM Australia Nickel Pty Ltd [2023] 750.

[83] Audio recording of hearing - Day 2 at 25:37.

Printed by authority of the Commonwealth Government Printer

Ms Katrina Romeo v Services Australia [2025] FWC 945

At a glance

Court

Decision date

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Judgment (188 paragraphs)

Ms Katrina Romeo v Services Australia [2025] FWC 945 (3 April 2025)

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Legislation Cited (3)