Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - dismissal - pursuit of internal grievance - whether exceptional circumstances - extension refused - application dismissed

• [1] On 18 February 2025, Lucy Calvert (Ms Calvert or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy. The application relates to a dismissal by the Westpac Banking Corporation (Westpac, the respondent or the employer) which took effect on 24 January 2025.

• [2] The application is four days outside the statutory 21-day period for making unfair dismissal claims. Ms Calvert seeks an extension of time. Westpac oppose an extension.

• [3] This decision determines whether an extension should be granted. It does not deal with other grounds on which Westpac oppose the application (that the dismissal was a genuine redundancy) or general issues of merit.

• [5] I heard the extension of time issue (by video) on 19 March 2025.

• [6] Ms Calvert was self-represented. Westpac was represented by an internal legal practitioner. I refused Westpac permission to be externally represented.

• [7] I heard evidence from Ms Calvert and from an officer of Westpac; Ms Christine Pols (Portfolio PMO Director, BT Transformation Office BT Financial Group).

• [8] Facts relevant to the extension of time issue are largely not in dispute.

• [9] There are some apparent factual disputes concerning the nature and extent of discussions between Westpac and Ms Calvert prior to dismissal. These concern redundancy and redeployment, and complaints raised by Ms Calvert about alleged harassment or conduct by other employees. As these generally concern merit and not the extension issue, I need not make findings on those matters.

• [11] Westpac is a nationally operating business in the banking sector which owns and operates the BT Financial Group.

• [12] At the time of dismissal, Ms Calvert had been employed for approximately seven and a half years. She held the position of Project Coordinator in the BT Transformation Team.

• [13] On 3 September 2024, Ms Calvert and other employees were advised of a restructure of the BT Transformation Team and that her position may be made redundant. Ms Calvert was assigned a career transition consultant to assist her search for alternate roles.

• [14] On 5 September 2024, Ms Calvert commenced a period of personal leave in part due to the stress and anxiety of the proposed redundancy and in part due to concerns at alleged harassment and conduct by other employees including that her selection for redundancy had involved unfair targeting.

• [15] Prior to going on personal leave, Ms Calvert raised these concerns in general terms to her manager (including her view that the redundancy was unfair) but did not put her concerns in writing or lodge a formal grievance under Westpac's grievance policy and procedure.

• [16] On 16 September 2024, Westpac confirmed that Ms Calvert's position was in fact one of the positions that was to be made redundant.

• [17] Ms Calvert was advised that upon returning from personal leave a period of redeployment would commence during which Ms Calvert would not be required to perform her usual duties but would have time and opportunity to seek out alternate roles in the organisation, assisted by the career transition consultant.

• [18] Ms Calvert's period of personal leave, supported as it was by medical certificates, became extended. During this period Ms Calvert lost a degree of trust and confidence in Westpac such that she did not feel particularly inclined to take up other internal positions, twice declined the suggestion that she might return to her former job, and developed a preference to look for work externally when she was well enough to do so.

• [19] Ms Calvert returned to work on 16 December 2024, and from then the period of redeployment commenced.

• [20] In a discussion with a Westpac officer; Ms Ludgate, on 16 December 2024, Ms Calvert was informed that the redeployment period would be for approximately two months before the redundancy would take effect. During this discussion Ms Calvert repeated her view that she had been subject to unfair treatment, including by alleged harassment and in being selected for redundancy. Ms Calvert was informed that a grievance complaint could be made formally under Westpac policy.

• [21] During the redeployment period Ms Calvert did not apply for internal positions.

• [22] On 21 January 2025, Ms Pols discussed the impending redundancy with Ms Calvert. Ms Pols advised that the redundancy would take effect from 24 January 2025. Ms Pols followed this up with an email of the same date which attached a letter of redundancy and a statement of service, both of which confirmed that 24 January 2025 would be the last day of employment.

• [23] Although Ms Pols had not previously dealt with Ms Calvert (as Ms Pols was relatively new in her role), Ms Pols had a general understanding that Ms Calvert had previously expressed concern about the redundancy and other workplace matters. For her part, Ms Calvert did not speak to Ms Pols on 21 January 2025 in detail about her concerns, though she let it be known in general terms that the redundancy was a continuing source of concern.

• [24] Ms Calvert's employment ended on 24 January 2025.

• [25] Ms Calvert considered her dismissal unfair prior to and at the time of dismissal, and following.

• [26] In the two weeks following, Ms Calvert felt too unwell and upset to take the matter further.

• [27] On 10 February 2025, Ms Calvert commenced taking action by twice searching the fairwork.gov.au website. Those searches confirmed her prior understanding that a right existed to make an unfair dismissal claim. She called up an unfair dismissal application form and looked briefly at it.

• [28] In relation to time limits, Ms Calvert's evidence was that she knew or learned from these searches that a time limit of some sort applied to making claims, but that she did not carefully read the website or the unfair dismissal application form (which she says she opened) thoroughly enough to learn that the time limit for lodgement was 21 days from dismissal.

• [29] In searching the website Ms Calvert also read information about dispute resolution procedures under awards or agreements. Ms Calvert read a separate website page which stated that generally dispute resolution procedures provide that "the employee and their manager must first try to resolve the dispute through discussion and...if unsuccessful with senior management" before seeking resolution by the Commission.[1]

• [30] Ms Calvert decided that this is what she wanted to do, and would do. She chose to formally raise her grievances (including concerning the dismissal) with Westpac and await their response before deciding whether to take the matter to the Commission.

• [31] Three days later, on the early morning of 13 February 2025, Ms Calvert wrote to Westpac by email raising her grievances. These included a concern about having been unfairly selected for redundancy (other grievances were raised alleging past employee harassment towards her). She sought a response by close of business the following day. The covering email read:[2]

Please find below detailing multiple levels to the grievance, including background information and numbering for your benefit of reply.

All communication moving forward is to occur via email to this email address. If a phone call is thrust upon me post the receipt of this email it will be audio recorded for my records.

Reasonable expectation for response: By close of business Friday the 14th of February 2025. Allowing 2 full business days from receipt to response.

Westpac did not protect me from the following, and did not provide appropriate investigation or support once I reported: [table of alleged mistreatment follows].

Please note that the above are just some of the notable events that occurred, outlined for your benefit of investigation.

To the bare minimum, my expectation from one human being to another is the acknowledgement of poor treatment of the above situations and the mental health distress that has ensued following. My mental health is still significantly affected post end of employment steaming (sic) from the events outlined above, and impacting my opportunities of find future employment.

• [32] The following day, 14 February 2025, Westpac sent two holding responses to Ms Calvert.[3]

• [33] By the morning of 18 February 2025, Ms Calvert had not received a considered response from Westpac. At 8.01am she sent an email in the following terms:[4]

"Please provide a reasonable expected response time?"

• [34] At 6.30pm that day (18 February 2025) Westpac responded by email. The response read:[5]

Thank you for providing me with your concerns and I'm sorry that you feel you did not have a good experience while working with us and this is continuing to impact you. Please be assured that your concerns will be reviewed and addressed, where appropriate and where are able to do so (noting a number of employees you have raised concerns about are no longer employed by Westpac). However, as you are no longer a Westpac employee, we will not be engaging with you any further on this matter.

We would like to take this opportunity to remind you that ACCESS is available on 1800 [No. redacted] and can provide you with independent and confidential, professional support, coaching and counselling if you think this would be of benefit for you. This service will remain available to you for 3 months post your separation from Westpac.

Your career transition consultant is also available for any post retrenchment support and I encourage you to remain in contact with them.

• [35] Ms Calvert was dissatisfied with the response. That same day, 18 February 2025, she decided to take the matter to the Commission via an unfair dismissal claim.

• [36] Ms Calvert went onto the Commission website later that evening, called up the unfair dismissal application form and populated it. As she was reading and populating the form Ms Calvert came to the question asking whether the application "was lodged within the 21 days limit?". Ms Calvert's evidence to the Commission was that this was when she first became aware that the time limit was 21 days and that she was late in filing. Ms Calvert's evidence was also that she did not believe that a time frame would be so strictly applied. She provided the following explanation in her application for the late filing:[6]

"I detailed all my grievances (as per the attachment) in writing for Westpac to respond (noting that all I included in writing had been raised with a minimum of 2 Westpac leaders previously verbally) and Westpac requested additional time to respond to me.

They have now responded with what I believe is a completely inappropriate response."

• [37] At about 8.30pm that evening Ms Calvert lodged the application electronically.

• [38] The application was then served by the Commission on Westpac.

• [39] Ms Calvert submits that the reason for the delay was an accumulation of three factors:

• a desire to have her complaint about the dismissal investigated internally before deciding whether action in the Commission was needed;

• that she was stressed and anxious immediately following the dismissal, and prior; and

• unwitting mistakes on her part being that she did not carefully or thoroughly read the fairwork.gov.au website or unfair dismissal application form to identify that the time limit was 21 days; that she wrongly thought a time limit would not be so strictly applied; and that she wrongly thought that information on the website about dispute resolution procedures applied to a complaint about an unfair dismissal.

• [40] Ms Calvert submits that she acted promptly to lodge an application once she was informed of Westpac's response to her request for an internal investigation.

• [41] Westpac submit that the circumstances for the late lodgement are not exceptional, individually or collectively.

• [42] Westpac submit that Ms Calvert had more than four months from the time of being notified of redundancy until the redundancy took effect to lodge an internal grievance and, despite being informed of the grievance procedure, did not formally do so. Waiting until a month after being dismissed to submit an internal grievance in writing and request an investigation was a choice made by Ms Calvert. In any event the internal grievance procedure does not apply to persons no longer employed, meaning that Westpac's response on 18 February 2025 was appropriate.

• [43] Westpac further submit that the errors and mistakes were the product of carelessness and indifference by Ms Calvert to her legal rights; they were not caused by others. Ignorance of the law is no excuse and Ms Calvert, believing that a time limit existed, offered no explanation for not finding out what that time limit was.

• [44] Ms Calvert has not provided any medical evidence to support the assertion that post-dismissal she was unable to make an in-time application. Her conduct from at least 10 February 2025 onwards indicates that she was capable of doing so, but chose an alternate route. She could have sought out a professional opinion on what to do, but did not do so.

• [45] Unfair dismissal applications are required to be filed within twenty-one days of a dismissal taking effect. However, s 394(3) of the FW Act provides:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the person and other persons in a similar position."

• [46] Ms Calvert's application can only proceed if she can establish that "exceptional circumstances" exist within the meaning of s 394(3).

• [47] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[7]

• [48] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant.[8] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[9]

• [49] I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:

"[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."[10]

• [50] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[11]

• [51] It is not in dispute that Ms Calvert's application is four days out of time.

• [52] I now consider each of the factors in s 394(3).

• [53] The reason for delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation.[12] The absence of an explanation for any part of the delay will usually weigh against an applicant. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, though it is ultimately a question of degree and insight.[13]

• [54] However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[14]

• [55] The period of delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for delay is acceptable or credible.[15]

• [56] In this matter, the delay period was between 15 February 2025 and 18 February 2025 inclusive.

• [57] I now deal with the reasons for delay advanced by Ms Calvert.

• [58] The desire by Ms Calvert to have her complaint (about allegedly being unfairly selected for redundancy) internally investigated by Westpac is the primary reason for the delay. This desire was a preference of Ms Calvert; her evidence was that she preferred this course and to not involve the Commission unless necessary. This preference was in part influenced by Ms Calvert reading on the fairwork.gov.au website that dispute resolution clauses in awards or agreements operate to require disputes to be first dealt with at the workplace level before being referred to the Commission.

• [59] This explanation is not acceptable for two reasons.

• [60] Firstly, the unfair dismissal system and its time frame is not conditioned by an employee's preference to have their dismissal dispute dealt with internally. Even if it were, this is not a matter where an internal investigation was underway at the time of dismissal and the delay is attributable to the employee being misled by the employer about its internal processes or the employee simply awaiting its outcome. Rather, it was only after dismissal and when no longer an employee that Ms Calvert formally requested an internal investigation. If this was her preference, she had many months prior to dismissal (and after notification of redundancy) to make a formal grievance or complaint.

• [61] Secondly, to the extent Ms Calvert was influenced in giving effect to this preference by what the website stated about dispute resolution clauses in awards or agreements, Ms Calvert made an error. At the time she sent her email to Westpac on 13 February 2025, Ms Calvert's unfair dismissal complaint was an action initiated by a former employee about their dismissal and its reasons and selection. This was not a dispute under an award or agreement and not presented to Westpac as such.

• [62] In considering whether this is a reasonable explanation for the delay, it matters not whether Ms Calvert's self-declared time frame for a response by Westpac (the day following) was unreasonably short or whether Westpac's response five days later was unnecessarily dismissive. These are largely irrelevant considerations because it was the decision to seek an internal investigation which caused the delay, not the substance of what was raised by Ms Calvert or how the issues were responded to.

• [63] Of relevance however is the fact that Ms Calvert promptly lodged an application within hours of receiving Westpac's response. This weighs in Ms Calvert's favour because she no longer delayed once a response was received. That consideration however has to be weighed against the fact that the delay had by then been occasioned.

• [64] It is readily apparent from the evidence that Ms Calvert made compounding mistakes which caused and contributed to the delay. These included that she did not carefully or thoroughly read the fairwork.gov.au website or unfair dismissal application form to identify that the time limit was 21 days, despite having an understanding that a time limit of some sort existed; and that she didn't expect it to be strictly applied.

• [65] This carelessness and thoughtlessness bordered on indifference to the fact that a time limit existed. That a time limit exists and that it is 21 days is obvious on the face of the website pages about unfair dismissal rights and is clearly stated in the application form. Moreover, it is well established that mere ignorance of the statutory time limit is no reasonable excuse for a delay in filing.

• [66] A further mistake made by Ms Calvert was that she wrongly believed that information on the fairwork.gov.au website about dispute resolution procedures applied to a complaint about an unfair dismissal. Whilst that information is separately located on the website from information about unfair dismissals, I take into account that Ms Calvert was a lay person and that information including about rights under awards or agreements can be confusing. However, the unfair dismissal material on the website is written in plain English, the unfair dismissal application form Ms Calvert opened on 10 February 2025 had nothing to say about the need for prior workplace investigations, and Ms Calvert could have but did not seek to contact the Commission, the Fair Work Ombudsman or an independent professional specialist to seek advice or clarify any confusion on her part.

• [67] Aside from being a lay person (which is not of itself unusual), there are no relevant mitigating factors which explain the mistakes made or point in the direction of exceptional circumstances.

• [68] Ms Calvert's evidence was that for the first two weeks following dismissal she was suffering stress and anxiety from being dismissed and re-living the mental health impacts on her when first notified in September 2024 of the redundancy.

• [69] In general terms, I accept Ms Calvert's evidence in this regard. However, stress, anxiety or adverse mental health impacts from being dismissed or notified of dismissal are not of themselves unusual or exceptional.

• [70] More specifically, there are two reasons why this consideration does not take Ms Calvert's case for an extension of time any further. Firstly, Ms Calvert's own evidence was that from at least 10 February 2025 she was well enough to action her concerns by searching out information and, three days later, deciding to lodge a complaint with Westpac. In other words, during the third week after dismissal and before the 21 day period expired, her stress, anxiety or mental health no longer precluded formal action being taken. Secondly, Ms Calvert led no evidence from a health professional that her mental health was such that she was unable to make an application in-time or until when she did. It is well established by prior decisions of the Commission that evidence in support of a health condition said to have impeded the making of an in-time application is generally required if that consideration is to weigh in favour of a finding of exceptional circumstances.[16]

• [71] Considered overall, whilst I accept that Ms Calvert acted in good faith to try and have her concerns first dealt with by her former employer, made mistakes because she was a lay person and was stressed and upset following the dismissal, these explanations for the delay do not weigh materially in favour of granting an extension of time, either individually or collectively.

Awareness of the dismissal taking effect (s 394(3)(b))

• [72] Ms Calvert was aware four months prior that her position was to be made redundant and at least three days prior to dismissal that it was to take effect on 24 January 2025. She was also aware of the reason.

• [74] Westpac was aware during the four months prior to dismissal that Ms Calvert was unhappy with having been selected for redundancy and that she disputed the fairness of that decision, amongst other grievances. Whilst this concern was not pursued in that period by way of formal internal grievance, it was known to supervisors, managers and Westpac's human resources department. Ms Pols evidence was clear on this point.

• [75] Further, at the time of making the claim, Westpac had received formal written notice of Ms Calvert's continued (post-dismissal) views on the matter, by her email of 13 February 2025.

• [76] Given this, Westpac could not reasonably be said to have been surprised by the unfair dismissal claim given that Ms Calvert had by then taken action to dispute the dismissal.

• [77] This factor weighs in favour of a finding of exceptional circumstances.

• [78] Westpac would incur time and effort in responding to an unfair dismissal claim. It is not a small business employer. The prejudice has no unique element.

• [79] However, the absence of prejudice would not of itself be a reason to grant an extension.[17]

• [80] In the circumstances, this is a neutral consideration.

• [81] A hearing on merit will concern whether the dismissal was a genuine redundancy within the meaning of the FW Act, and if not, broader questions about fairness including the selection process and the allegations by Ms Calvert that her selection was tainted by her right to make complaints of harassment. Issues of procedural fairness may also arise.

• [82] Given the likely factual contest on some of these issues (including in relation to redeployment) it is not possible to express even a provisional view on the merits.

Fairness between persons in similar positions (s 394(f))

• [84] This issue does not arise in this matter.

• [85] The four day period of delay is not lengthy but, in the context of a twenty-one day statutory time limit, not immaterial. In any event, extending time for even a short period of delay requires a finding of exceptional circumstances and the exercise of a discretion to do so.

• [86] The reasons for the delay do not materially weigh in favour of a finding of exceptional circumstances.

• [87] That Westpac knew that Ms Calvert disputed the fairness of the redundancy is one of two factors that weigh in her favour. The other is that Ms Calvert moved promptly to lodge an application once the response to her internal investigation request was received.

• [88] However, these considerations are not sufficient to conclude that exceptional circumstances exist. The delay was primarily caused by Ms Calvert choosing, almost three weeks after being dismissed, to seek an internal investigation of her dismissal and at a time when she was no longer an employee. Ms Calvert did so knowing that unfair dismissal rights existed under the FW Act and that a time limit of some type applied. In making this decision Ms Calvert did not check or further investigate what the specific time limit for making claims was; nor did she seek to contact the Commission or the Fair Work Ombudsman to check if the course she was taking was correct or appropriate despite contact details for these agencies being on the fairwork.gov.au website; nor she did not seek out independent guidance from an industrial relations specialist or practitioner about her rights.

• [89] I do not find the circumstances for the late filing to be exceptional.

• [90] There being no exceptional circumstances, the time for lodgement of application U2025/1837 cannot be extended.

• [91] Being out of time, the unfair dismissal application must be dismissed. An order[18] giving effect to this decision is issued in conjunction with its publication.

A. Rickett, of and on behalf of, Westpac Banking Corporation

[7] Smith v Canning Division of General Practice [2009] AIRC 959

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

[9] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316

[10] [2011] FWAFB 975, [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers [2010] FWAFB 7251, [5]

[11] John Mamur v Coles Group Supply Chain Pty Ltd [2020] FWCFB 4954, [7] and [19]; Dennis Obel v Central Desert Regional Council [2021] FWCFB 167, [6]

[12] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988, [30] and [36]

[13] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2019] FWCFB 3288, [35] - [45]

[14] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288

[15] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287, [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] - [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149

[16] Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group [2021] FWC 3903, [24]

[17] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

[18] PR785641

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