s.365 - Application to deal with contraventions involving dismissal

Linkforce Work Pty Ltd Atf Linkforce Work Trust

Application to deal with contraventions involving dismissal- application made out of time -extension not granted.

• [1] Linkforce Work Pty Ltd ATF Linkforce Work Trust dismissed Ms Lenna Meriloo on Thursday 19 December 2024. On Sunday 15 March 2025, Ms Meriloo filed an application under s 365 of the Fair Work Act 2009 (Cth) alleging that her dismissal was in contravention of Part 3-1 of the Act.

• [2] Section 366 of the Act provides that a s 365 application must be made within 21 days after the dismissal took effect; or, pursuant to s 366(1)(b), within such further period as the Commission allows under s 366(2). In Ms Meriloo's case, the period of 21 days ended at midnight on Thursday 9 January 2025. Her application is 65 days out of time.

• [3] Ms Meriloo seeks a further period for her application to be made under s 366(2). Linkforce opposes this. The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, I must consider the factors in s 366(2)(a)-(e) of the Act.

• [4] I conducted a determinative conference on Tuesday 29 April 2025. Ms Meriloo gave evidence in support of her case. I granted permission to Mr James Parkinson of Kingston Reid to represent Linkforce and Ms Danielle White (Human Resources Administration Coordinator) gave evidence for Linkforce.

• [5] Having considered the evidence of the parties and the factors in s 366(2) of the Act, I do not find that there are exceptional circumstances that justify an extension of time. Ms Meriloo's application must be dismissed.

• [6] The detailed reasons for my decision follow.

• [7] Linkforce is a labour hire provider in the mining and resources industry. Ms Meriloo commenced employment with Linkforce on 18 June 2021 on a casual basis.

• [8] In October 2024, the Principal Human Resources Advisor for Linkforce, Ms Sheehan, informed the Linkforce Human Resources Department that Linkforce would no longer be engaging employees who are on student visas. This was due to the administrative burden and impracticality, given that student visa holders are restricted in the number of hours they could work. Ms White reports to Ms Sheehan.

• [9] On 4 September 2024, Linkforce sent an email to Ms Meriloo notifying her that her visa was due to expire.

• [10] On Friday 18 October 2024, Mr Marko Koiduste emailed Linkforce. Mr Koduiste is Ms Meriloo's partner and was also employed by Linkforce at the time. Mr Koduiste confirmed that he had been granted a bridging visa until his application for a student visa was approved. Mr Koduiste relayed that his course would begin on 17 February 2025, and he would retain full working rights until that date.

• [11] On Monday 21 October 2024, Linkforce replied to Mr Koduiste, informing him that Linkforce would be unable to continue employing people on student visas due to the associated limitations on work. The email stated, "Once you have commenced your studies or, your new visa has been approved (whichever comes first) you will no longer be allocated further work with Linkforce".

• [12] The same day, Mr Koduiste wrote to Linkforce with the Visa Entitlement Verification Online Visa Details (Visa Details Check) for Ms Meriloo.

• [13] At some point in December, Ms Meriloo noticed that she could no longer access to Linkforce's associated apps and email.

• [14] On Thursday 19 December 2024, the below email was sent to Ms Meriloo on Ms White's instruction:

The business has recently made the difficult decision to no longer engage employees who hold or have applied for student visas.

The strict conditions and working limitations associated with this visa type creates a significant administrative burden on a number of our departments which is no longer manageable and cannot be accommodated moving forward.

As you have informed us you have applied for a student visa, unfortunately we will not be able to offer you any further work with Linkforce and will proceed to make you inactive on our systems.

As per the IMMI website only a Master's degree by research or doctoral degree allows for full working rights. As your partners visa is a Master by coursework unfortunately, we will not be able to continue to offer you work.

Student visa holders cannot work in Australia before the student has started their course of study.

Student visa holders and their family members can work up to 48 hours a fortnight when their course of study or training is in session.

Students who have started a masters degree by research or doctoral degree can work more than 48 hours a fortnight.

Students must ensure they are aware of any changes to visa conditions, including work rights.

We thank you for your service to Linkforce and wish you the best of luck with your future endeavours.

If your visa status changes in the future and you obtain full unrestricted and ongoing working rights, please contact our recruitment team."

• [15] Soon after this this email was sent, Ms Meriloo called Linkforce and spoke to Ms White. Ms White's account of that phone call is that:

(a) Ms Meriloo asserted that Linkforce had made a decision based on incorrect information as her current visa status did not have any restrictions on working.

(b) Ms White told Ms Meriloo that Linkforce had decided not to offer her any further casual work due to the new policy where it would no longer engage employees who are on student visas or have applied for student visas.

(c) Ms White explained that one of the issues with her student visa application was that it could be approved while she is on site, meaning the work restrictions would kick in and they would need to demobilise her from site prematurely.

(d) Ms Meriloo became aggressive and spoke over Ms White.

(e) Ms White repeated her explanation that Linkforce could no longer engage her as she had applied for a student visa. Ms Meriloo and Mr Koduiste both interrupted her.

(f) Ms White informed Ms Meriloo that there was nothing Linkforce could do, but if Ms Meriloo attained full working rights in the future, she could notify Linkforce and Linkforce would consider re-employing her.

• [16] During the determinative conference, Ms Meriloo disagreed that she or Mr Koduiste had been aggressive or interrupted Ms White. Other than this, she agreed with Ms White's account of what was said during this phone call.

• [17] Ms White then forwarded Ms Meriloo's call to Ms Sheehan. Ms White could not hear what Ms Meriloo said on that call, but her evidence of what she heard Ms Sheehan say is as follows:

(a) Ms Sheehan explained that Linkforce had terminated Ms Meriloo's employment due to Linkforce's new policy of not engaging employees who are either on a student visa or who have applied for a student visa.

(b) Ms Sheehan confirmed that Linkforce would be standing by its decision conveyed in the email sent on 19 December 2024.

(c) Ms Sheehan told Ms Meriloo that she would be made inactive in Linkforce's system and Ms Meriloo could notify Linkforce if she attained full working rights in the future if she wished to be considered for re-employment with Linkforce.

• [18] Ms Meriloo did not agree that Ms Sheehan had used the word "terminated" but agreed that Ms Sheehan had said Linkforce would no longer offer work to people on student visas and that Linkforce would be standing by the decision in the 19 December email.

• [19] Ms Meriloo did not recall Ms Sheehan saying that she would be made inactive on Linkforce's system and did not agree that Ms Sheehan used the term "re-employment" or "re-employed". Ms Meriloo's account is that Ms Sheehan said that if she regained full working rights Linkforce would allocate work to her.

• [20] On Monday 23 December 2024, Ms Meriloo forwarded the 19 December email to her former line manager, stating that the information in the email regarding her visa conditions were incorrect. On Sunday 12 January 2025, Ms Meriloo sent a follow up email. These emails were forwarded onto Linkforce's HR department.

• [21] On Wednesday 22 January 2025, Ms White called Ms Meriloo to discuss her emails to her former line manager. Ms White's account is that she told Ms Meriloo that she had been made inactive on Linkforce's systems and that Linkforce stood by its decision not to offer her any further casual engagements. Ms White reiterated that if Ms Meriloo retained full working rights in the future, she was welcome to get back in contact with Linkforce.

• [22] Ms Meriloo did not recall much about this phone call. Her only recollection was that Ms White said to her that she would be allocated work once she obtained full working rights.

• [23] On Wednesday 5 February 2025, a Linkforce employee texted Ms Meriloo to ask her to return the company laptop she had. Ms Meriloo's evidence is that she called this employee to ask why she had to return the laptop and was told that she had to return it.

• [24] On Tuesday 25 February 2025, Ms Meriloo filed an application under s 372 of the Act, which was allocated to Commissioner Schneider. On Monday 10 March 2025, Linkforce filed a Form F8D response which stated that Ms Meriloo's employment had ended on Thursday 19 December 2024. On Thursday 13 March 2025, the Chambers of Commissioner Schneider wrote to the parties and asked Ms Meriloo to confirm if she wished to proceed with her s 372 application. Ms Meriloo confirmed that she did.

• [25] The parties attended a conference before Commissioner Schneider on Friday 14 March 2025. Following that conference, Ms Meriloo filed this application on Sunday 15 March 2025.

• [26] Under s 366(1) and (2) of the Act, the Commission may allow a further period for an application made under s 365 to be made if the Commission is satisfied that there are exceptional circumstances.

• [27] It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique not unprecedented, nor even very rare.[1] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[2]

• [28] In determining whether there are exceptional circumstances, I must take into account the criteria in s 366(2). Each of the matters in s 366(2) must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[3]

• [29] I set out my consideration of each matter below.

• [30] For Ms Meriloo's application to have been made within 21 days after the dismissal took effect, she needed to lodge by midnight on Thursday 9 January 2025. The delay is the period commencing immediately after that time until Sunday 15 March 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]

• [31] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]

• [32] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[6]

• [33] Ms Meriloo submits that the delay was due to Linkforce's failure to clearly communicate her dismissal, and that this constitutes an exceptional circumstance. Further, that Linkforce misrepresented Ms Meriloo's visa status and provided misleading advice that led Ms Meriloo to believe that her employment remained on foot.

• [34] I disagree. I appreciate that Ms Meriloo holds strong views on the accuracy of Linkforce's understanding of her visa status and its significance. However, regardless of whether Linkforce was correct as to Ms Meriloo's visa status, the email sent to her on Thursday 19 December 2024 clearly communicated that her employment had been terminated. The email states that Linkforce would no longer be offering Ms Meriloo any future work and that she would be made inactive on their system. This is unequivocally a dismissal.

• [35] I accept Ms White's evidence of the phone calls that took place with Ms Meriloo. Ms Meriloo also largely agreed with Ms White's accounts of what was discussed.

• [36] I appreciate that Ms Meriloo is not a native English speaker. However, she was able to speak fluently in English during the determinative conference, and from her evidence she understood at the time that Linkforce had decided not to offer her any further work, and that Ms Meriloo would be made inactive on Linkforce's system. Ms Meriloo's grievance was (and is) her view that Linkforce's understanding of her visa status and working conditions is incorrect, and that the dismissal was "unfounded".

• [37] Between Ms Meriloo's evidence that her IT access was cut off in December 2024; the clear language in the email sent on Thursday 19 December 2024; and the phone calls between Ms White, Ms Sheehan and Ms Meriloo on Thursday 19 December 2024, I do not accept Ms Meriloo's submission that Linkforce failed to clearly communicate her dismissal.

• [38] I find that Ms Meriloo has not provided an acceptable reason for the delay in filing her application. This is a factor that goes against a finding of exceptional circumstances.

3.2 Action Ms Meriloo took to dispute the dismissal

• [39] Ms Meriloo submits that she disputed the dismissal by calling Linkforce's HR department and speaking with Ms White; contacting her former direct line manager via email; calling Linkforce to ask why she had to return her laptop; and making her application under s 372 of the Act.

• [40] I accept that Ms Meriloo queried Linkforce's decision through her phone call on Thursday 19 December 2024 and through her emails to her former line manager. However, I find that Ms White clearly told Ms Meriloo on Thursday 19 December 2024 and on Wednesday 22 January 2025 that Linkforce had decided not to offer her any further shifts.

• [41] Applications under s 372 of the Act deal with general protections applications not involving dismissal. I do not find that Ms Merriloo disputed her dismissal by making an application that relates to non-dismissal actions.

• [42] In the circumstances, I find that this is a neutral factor in assessing whether there are exceptional circumstances.

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

• [43] Linkforce submits that it has suffered prejudice in having to engage with Ms Meriloo's applications. This includes the wasted time and costs associated with Ms Meriloo's s 372 application and this application. Ms Meriloo did not make substantive submissions on this point.

• [44] I find that if there has been prejudice to Linkforce, it is marginal. However, the absence of prejudice is not, of itself, conclusive of exceptional circumstances.[7] In these circumstances I treat this consideration neutrally.

• [45] The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[8] Further, the primary consideration is whether Ms Meriloo has an arguable case.[9]

• [46] In cases like this where there is not a full examination of the substantial merits, it is appropriate to assess any limited material through the prism of viewing the applicant's case at its most favourable.[10]

• [47] Ms Meriloo submits that her dismissal breaches the following sections of the Act:

(a) Section 340: Linkforce dismissed her based on an incorrect understanding of visa work restrictions. This impeded her lawful right to work and make inquiries about her employment.

(b) Section 343: Linkforce misled Ms Meriloo regarding her visa status, which discouraged her from asserting her legal rights.

(c) Section 351: the dismissal was based on Ms Meriloo's visa and social origin, constituting discriminatory conduct under the Act.

• [48] During the determinative conference. Ms Meriloo could not point to where her asserted right to work came from in the context of the Act. Ms Meriloo also asserted that another Linkforce employee who is from the United States was in the same visa situation as her but was not dismissed. Ms Meriloo did not provide any evidence in support of this contention.

• [49] However, I note that Ms Meriloo is not a native English speaker and not legally trained or represented. I am mindful that she may not have presented her case at its best.

• [50] Linkforce submits that it terminated Ms Meriloo's employment due to her inability to fulfil the inherent requirements of her position, and that this was a valid and lawful reason for termination.

• [51] In the circumstances, I find that this is a neutral consideration in whether there are exceptional circumstances.

3.5 Fairness as between the Applicant and other persons in a similar position

• [52] Linkforce submits that there are several Commission decisions that have found that uncertainty and ignorance of the jurisdiction are not exceptional circumstances.[11] Ms Meriloo submits that she has been treated differently to other Linkforce employees in a similar position and thus there is unfairness.

• [53] I find that each case generally turns on its own facts. I find that this is a neutral consideration.

• [54] Having considered all the circumstances of this matter and the factors in s 366(2), I am not satisfied that there are exceptional circumstances. I find that Ms Meriloo does not have a satisfactory reason for why her application was filed late. All other criteria under s 366(2) are neutral.

• [55] As I am not satisfied that there are exceptional circumstances, I order that Ms Meriloo's application be dismissed.

[1] Nulty v Blue Star Group Ltd [2011] FWAFB 975 [13].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 [39].

[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287 [12] (Watson VP and Smith DP).

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 [39].

[7] Jovcic v Coopers Brewery Limited [2023] FCA 797.

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

[9] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 [32]-[34].

[10] Ivan Cowen v Renascent Regional Pty Ltd [2021] FWCFB 2606 [42].

[11] Citing Ko v Medical Technology Association of Australia Ltd [2024] FWC 1530 and Webb v Minterra Pty Ltd [2021] FWCFB 6076.

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