s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - whether to extend time - jurisdictional objection - application dismissed

• [1] After more than 13 years of employment,[1] Ms Waymouth alleges that she was unfairly dismissed from her employment with Metcash Trading Limited (Metcash) on 30 January 2025.

• [2] An application to remedy an unfair dismissal must be made within 21 days of the dismissal taking effect,[2] or within such further period as the Commission allows.[3] For the application to have been made in time it should have been made by 20 February 2025.

• [3] Ms Waymouth attempted to make an application to the Commission to remedy an unfair dismissal on the evening of Friday 21 February 2025, but due to issues with the format of the file submitted, the application could not be accessed by Commission staff. The Commission wrote to Ms Waymouth informing her of this on Monday 24 February 2025. The application was then sent by Ms Waymouth in a format that allowed it to be accepted by the Commission later that day. Accordingly, the application to remedy an unfair dismissal was made by Ms Waymouth on 24 February 2025.

• [4] The application was made outside the 21-day timeframe and therefore can only proceed if an extension of time is granted. In determining whether the Commission ought to allow a further period for the making of the application, the Commission must first be satisfied that exceptional circumstances exist, taking into account the factors set out below.[4]

• [5] Whilst I have some sympathy for Ms Waymouth and the circumstances she experienced around the time of her dismissal, I am not satisfied that exceptional circumstances exist that enliven the discretion to extend the time for the filing of the application and therefore the application has not been validly made.

• [7] Section 394 (3) of the Fair Work Act 2009 (Cth) states,

(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.

• [8] Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon.[5] The circumstances themselves, however, do not need to be unique nor unprecedented, nor even very rare.[6] Exceptional circumstances may 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 can be considered exceptional.[7]

• [9] I now consider these factors in the context of the submissions and evidence advanced by Ms Waymouth and Metcash.

• [10] In giving her evidence during the Hearing, Ms Waymouth acknowledged that at some point between the week after the dismissal and 21 days after her dismissal, she became aware that there was a time limit for making an unfair dismissal application.

• [11] Ms Waymouth provided a number of reasons for the delay in making the application:
  • • That the dismissal itself was traumatising and stressful;[8]
  • • Her car was stolen on the evening of 30 January 2025, causing her time to be taken up by interactions with the police attempting to recover the car and dealing with her insurance company in order to repair the damaged car once it was found;[9]
  • • Fears that the people who stole the car would come back left her unable to sleep;[10]
  • • Attendance at several stressful Court dates; 10 and 17 of February 2025 for an appeal against an Intervention Order being cancelled after 5 years and 11 February 2025 for one of her children;[11] and
  • • Ongoing difficulties with her son.[12]

• [12] During the 21 days after the dismissal, Ms Waymouth had discussions with friends about the dismissal[13] and sought assistance online from Unfair Dismissals Australia in pursuing an unfair dismissal application.[14] Ms Waymouth did not, at this point, file an unfair dismissal application with the Commission.

• [13] Receiving no response to her enquiries for representation, Ms Waymouth's evidence was that she followed up with Unfair Dismissals Australia because she knew she was "running out of time"[15] and if they didn't respond to her the application would not be made in time.

• [14] Accordingly, I find that the reasons for delay advanced by Ms Waymouth do not constitute a valid reason for failing to file her application within the 21-day timeframe.

• [15] It is clear from her evidence that even in those circumstances, she was capable of and did in fact, take steps to pursue an unfair dismissal claim and engage with the process by seeking advice and representation.[16] The other matters that Ms Waymouth was forced to deal with concurrently clearly did not prohibit her ability to participate in the process of pursuing an unfair dismissal application.

• [16] It was stated by Ms Waymouth at the Hearing that she contacted the Fair Work Commission on or before Thursday 20 January 2025 to confirm the date the application was due as she "thought I might have only had until the Thursday night and then when they told me, no, no, I've got til tomorrow to do".[17] Upon my Chambers making enquiries, no record of the call was able to be located by Commission staff. Subsequently, Ms Waymouth confirmed that the call had been made on Friday 21 February 2025 to a Consultant, Unfair Dismissals Australia and not to the Fair Work Commission.[18]

• [17] Regardless of what advice was, or was not given to Ms Waymouth during that phone call with Unfair Dismissals Australia, the application was already out of time at the point that the phone call occurred.

• [18] I do not accept the reason advanced by Ms Waymouth as to why she was not able to make the application on or before Thursday 20 February 2025 in circumstances where she was aware that there was a timeframe in which to do so and she was taking steps to seek assistance with filing an application.

• [19] Accordingly, I find that in this matter the absence of a valid reason for the delay in making the application weighs firmly against a finding that exceptional circumstances exist.

Whether Ms Waymouth first became aware of the dismissal after it had taken effect

• [20] Ms Waymouth was notified of the dismissal on the day it took effect and therefore had the full 21-day period to make the application to remedy an unfair dismissal.[19] This does not support a finding that exceptional circumstances exist.

Any action taken by Ms Waymouth to dispute the dismissal

• [21] While no action was taken to dispute the dismissal with Metcash, Ms Waymouth gave evidence that she did try to get representation to assist in disputing the dismissal.[20] I find this a neutral consideration.

Prejudice to Metcash (including prejudice caused by the delay)

• [22] There is no evidence of any potential prejudice to Metcash and therefore I find this a neutral consideration.

• [23] My preliminary view of the merits is that Ms Waymouth has an arguable case. Noting that limited evidence is before me, it appears on the face of it that Ms Waymouth may not have been afforded procedural fairness[21] and that in light of her extensive service the dismissal may have been harsh. This factor weighs marginally in support of a finding that exceptional circumstances exist.

Fairness as between Ms Waymouth and other persons in a similar position

• [24] No evidence or submissions were put to me for consideration regarding this factor and I find this a neutral consideration.

• [25] The Applicant bears the onus of satisfying the Commission that there are exceptional circumstances, which then enlivens the Commission's discretion to extend the time for making the unfair dismissal application.

• [26] Having considered all of the circumstances and weighing the factors required by s 394 (3) of the Fair Work Act in light of the evidence, I am not satisfied that exceptional circumstances exist.

• [27] The application is dismissed. An order giving effect to this decision will be issued in conjunction with it's publication.[22]

[1] Form F2 Application (21 February 2025) at 1.1.

[2] Fair Work Act 2009 (Cth) s 394 (2)(a) ('Fair Work Act').

[3] Ibid s 394 (2)(b).

[4] Ibid s 394 (3).

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

[8] Audio recording of Hearing at 35:43.

[14] Ibid at 36:28-37:33; Email from the Applicant dated 16 May 2025.

[15] Audio recording of Hearing at 34:24.

[18] Email from the Applicant dated 16 May 2025.

[19] Audio recording of Hearing at 27:43-27:48.

[21] Form F2 Application (21 February 2025) at 3.1-3.2.

[22] PR787565.

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