s.394 - Application for unfair dismissal remedy

Application for unfair dismissal remedy - whether resignation forced by employer's conduct - extension of time - application dismissed

• [1] This decision determines two questions. One, whether Ms Michelle Disney (the Applicant) was dismissed within the meaning of section 386 of the Fair Work Act 2009 (FW Act). Two, whether Ms Disney should be granted an extension of time pursuant to section 394(3) of the FW Act to make an unfair dismissal application against her former employer, Westpac Banking Corporation (the Respondent).

• [2] The question as to whether Ms Disney was dismissed arises in circumstances where Ms Disney resigned from her employment. Ms Disney contends that she was dismissed within the meaning of section 386(1)(b) of the FW Act. The application for an extension of time was sought in circumstances where Ms Disney filed her unfair dismissal application on 14 April 2025, which was 31 days after the date that Ms Disney asserts that her dismissal took effect. Ms Disney accepts that her unfair dismissal application was filed outside of the 21 day period specified in section 394(2)(a) of the FW Act, and for her unfair dismissal application to proceed that an extension of time is required under section 394(3) of the FW Act.

• [3] On 11 June 2025, both questions were the subject of a hearing before me. Ms Disney appeared for herself. The Respondent was represented by an in-house lawyer, Ms Georgie Richardson. In accordance with section 399 of the FW Act, and after taking into account the views of the parties, the matter proceeded as a hearing because I considered that a hearing was appropriate, and the most effective and efficient way to resolve the matter. Ms Disney gave evidence and was cross-examined. The sole witness for the Respondent was not required for cross-examination. All the evidence and submissions made by the parties has been considered.

• [4] For the reasons explained below, I have determined that Ms Disney was not dismissed within the meaning of section 386 of the FW Act. Notwithstanding that finding, I have considered Ms Disney's application for an extension of time. I have decided not to grant the extension of time. For both of those reasons, I have dismissed Ms Disney's unfair dismissal application.

First question: whether Ms Disney was dismissed within the meaning of section 386 of the FW Act

• [5] Section 386(1) of the FW Act provides that a person has been dismissed if:

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

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

• [6] It was accepted by the parties that Ms Disney was not dismissed within the meaning of section 386(1)(a) of the FW Act. The contest between the parties concerned section 386(1)(b) of the FW Act. In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941, a Full Bench of the Fair Work Commission explained that the test to be applied with respect to section 386(1)(b) of the FW Act is "w_hether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer's conduct such that the employee had no effective or real choice but to resign_".[1] The Full Bench explained that the requisite employer conduct is the essential element.[2]

• [7] Mr Kasey Nairn is employed by the Respondent as the General Manager, Hunter & Mid North Coast. Mr Nairn was the Applicant's 2-Up Manager. Mr Nairn gave a witness statement in this matter. Mr Nairn was not required for cross-examination. I accept Mr Nairn's evidence, and make the following factual findings based upon Mr Nairn's evidence.

• [8] Ms Disney commenced employment with the Respondent on 13 August 2017. Ms Disney was employed in various roles throughout the period of her employment with the Respondent. From 10 August 2020 and up until the cessation of her employment, Ms Disney worked in the Newcastle Branch as a Personal Banking Advisor.

• [9] On 5 February 2025, Mr Nairn was notified by the Respondent's Group Investigation Team that an investigation was being conducted into Ms Disney's conduct. The investigation concerned allegations that Ms Disney had submitted loan applications and conducted identity verification procedures without customers being present, transferred funds from customer accounts for personal benefit, used her personal email to handle customer documents, and submitted loan applications for individuals that Ms Disney had a personal relationship with. Mr Nairn explained that the allegations were serious. Mr Nairn explained that if established, the conduct would amount to serious breaches of the Respondent's policies, including banking procedures, conflicts of interest, and anti-money laundering and counter-terrorism financing obligations.

• [10] Ms Disney was then placed on special paid leave while the allegations were investigated.

• [11] On 18 February 2025, Ms Disney was interviewed by two employees of the Respondent, Kushiani Sitsabesan and David Gillian. In the course of that interview, the allegations were put to Ms Disney. After the interview and by way of email dated 18 February 2025, Ms Sitsabesan set out six allegations in writing. Particulars of each allegation was contained in that email. The email explained that if substantiated, Ms Disney's conduct would breach various identified policies of the Respondent. The email did not require a response from Ms Disney to those allegations. This was because the email explained that Ms Disney had already provided a response to these allegations during the interview.

• [12] On 24 February 2025, Ms Disney sent an email to Yasmine Williams-Tayt and Mr Nairn. Ms Williams-Tayt was Ms Disney's direct manager. The subject of the email was 'Resignation'. The text of the email (hereafter the Resignation Email) is reproduced in full below:

I hope you're doing well. After much more thought I have decided to resign from my position at Westpac effectively immediately today, Monday 24th February 2025. Unfortunately, due to a high level of stress, I will not be able to return to work.

Over the past 12 months I have been considering a change, and recent events have reinforced that now is the right time to move on. My focus has not been where it should have been for a while now. I feel that I am no longer able to perform at the level expected with my sickness. I believe it is in the best interest of all parties for me to step down.

I acknowledge that I have made mistakes in my role, and I have found myself struggling with the pressure of always needing to be right. I've been beating myself up over these mistakes, and it has taken a toll on me. At this point, I believe stepping away is the best for both my well-being and professional growth.

While the ongoing investigation has certainly been stressful, I want to make it clear that my decision to leave is not directly related to it. Rather, it is based on a personal choice to move forward in a new direction, pursuing support work, which aligns with my passion for helping people. (emphasis added).

I want to take a moment to express my sincere gratitude for the opportunities and recognition I have received during my 17 and a half years at Westpac. Being acknowledged with all the awards I have received, they have truly meant alot to me and I deeply appreciate the support and encouragement from you and the team. These experiences have helped me grow both professionally and personally and I will always be grateful for the time I've spent within the Westpac Group.

I have absolutely loved working with you all and will miss you all immensely.

Thank you for all the support and memories - I truly appreciate it.

• [13] On 25 February 2025, Mr Nairn sent an email to Ms Disney. In summary terms, that email confirmed receipt of the Resignation Email. That email continued that Ms Disney's intention to cease employment with immediate effect was inconsistent with her contractual obligation to provide notice. That email continued that the Respondent was not willing to waive the notice period and that Ms Disney would remain employed up to and including 21 March 2025 (which was when Ms Disney's notice period ended). Finally, that email confirmed that the Respondent's investigation into Ms Disney's conduct was ongoing.

• [14] On 26 February 2025, Mr Nairn was advised that the investigation was complete and all six allegations into Ms Disney's conduct was substantiated.

• [15] On 6 March 2025, Ms Disney sent Mr Nairn a medical certificate. The medical certificate stated that Ms Disney was not fit to attend work or to attend anything work related from 6 March 2025 to 13 March 2025.

• [16] On 7 March 2025, Mr Nairn sent a letter to Ms Disney. In summary terms, that letter advised Ms Disney that the six allegations made against her had been substantiated. Particulars of each finding was set out in that letter. That letter advised Ms Disney that the Respondent was considering terminating her employment for serious misconduct, and invited Ms Disney to provide a response before a decision was made. The letter noted Ms Disney had advised the Respondent of her resignation and reiterated that Ms Disney would remain on special paid leave until the expiry of her notice period.

• [17] On 10 March 2025, Ms Disney sent two emails to Mr Nairn. The first email included Ms Disney saying "I take full responsibility for my actions and understand the impact they have had. I sincerely regret all of this deeply. However, I want to make it clear that my choices were never made with any intention of personal gain. They were mistakes - poor decisions that I now fully acknowledge and deeply regret". The first email also included Ms Disney saying "I would be extremely grateful if you were to allow me to exit with a record of resignation. I am losing my job and I am aware that due to ABA CDC Protocols my employability within the banking industry will be difficult if not impossible. A resignation would allow me to seek work outside the finance industry". The second email included Ms Disney saying that she has made "so many mistakes, is why it's time to get out".

• [18] On 14 March 2025, Mr Nairn sent a letter to Ms Disney. In summary terms, that letter confirmed that Ms Disney's emails sent on 10 March 2025 had been considered and that her employment would cease by way of resignation in accordance with the Resignation Email. That letter confirmed that Ms Disney's resignation would be accepted with immediate effect and that her remaining entitlements would be processed through the payroll system on the next available pay day. That letter confirmed that had it not been for Ms Disney's resignation that her conduct would have warranted dismissal. In effect, through this letter, the Respondent waived the remainder of Ms Disney's notice period and her employment ended by reason of resignation on this day.

• [19] On 21 March 2025, Ms Disney sent an email to Mr Nairn. The subject of that email was "Thank You !!!". That email included Ms Disney saying "Firstly thank you so much for every you have done for me. I really appreciate it immensely".

• [20] At no time did Ms Disney seek to withdraw her resignation, nor express any intention to continue her employment with the Respondent following the sending of the Resignation Email.

• [21] I am not satisfied that the Respondent engaged in conduct with the intention of bringing Ms Disney's employment to an end. The facts clearly demonstrate that the Respondent raised serious allegations of misconduct with Ms Disney. The Respondent proceeded to place Ms Disney on special paid leave and investigate those allegations. In conducting the investigation, the Respondent put the allegations to Ms Disney and gave her an opportunity to respond. At that point, Ms Disney sent the Resignation Email. That is, Ms Disney sent the Resignation Email before the Respondent had determined whether the allegations were substantiated or not. Furthermore, Ms Disney sent the Resignation Email before the Respondent had decided what disciplinary sanction, if any, was to be imposed on her.

• [22] The Respondent's conduct is what could reasonably be expected from an employer when dealing with similar allegations of misconduct. I am satisfied that that the Respondent's intentions were to investigate the allegations and, if substantiated, impose a disciplinary sanction on Ms Disney. I reject any argument that the Respondent had already decided to terminate Ms Disney's employment prior to Ms Disney sending the Resignation Email. Based upon the material before me, I am not satisfied that the Respondent's conduct was done with the intent of bringing Ms Disney's employment to an end.

• [23] I am not satisfied that termination of Ms Disney's employment was the probable result of the Respondent's conduct such that she had no effective or real choice but to resign. As explained, I have found that the Respondent's conduct was focused on investigating the allegations made against Ms Disney and, if substantiated, imposing a disciplinary sanction. I am not satisfied that such conduct left Ms Disney with no effective or real choice other than to resign. As explained, the Resignation Email was sent by Ms Disney prior to the Respondent determining whether the allegations were substantiated or not. The Resignation Email was also sent by Ms Disney prior to the Respondent deciding what disciplinary sanction, if any, was to be imposed on her. Ms Disney could have elected to await the Respondent's determination as to whether the allegations were substantiated or not. Ms Disney could have elected to await the Respondent's decision as to any disciplinary sanction. Ms Disney did not await either decision. Rather, when confronted with very serious allegations of misconduct - which Ms Disney accepts a level of culpability - Ms Disney resigned from her employment. The resignation was not forced. Importantly, Ms Disney's resignation was not forced because of the Respondent's conduct or course of conduct.

• [24] For those reasons, I find that Ms Disney was not dismissed within the meaning of section 386(1)(b) of the FW Act. That finding has been made based upon my assessment of the Respondent's conduct. I note that Ms Disney's conduct reinforces my finding that she was not dismissed within the meaning of section 386(1)(b) of the FW Act. In particular, as emphasised at paragraph 10 of this decision, in the Resignation Email, Ms Disney clearly stated that her resignation was not directly related to the investigation into the allegations of misconduct. Rather, as Ms Disney clearly explained, her resignation was "a personal choice to move forward in another direction". Ms Disney's resignation cannot be both "a personal choice to move forward in another direction" and forced by the Respondent's conduct or course of conduct. Moreover, after the Respondent relented and waived the remainder of the notice period, Ms Disney sent the email to Mr Nairn (on 21 March 2025) which thanked him and expressed her appreciation. Such conduct is similarly consistent with a finding that Ms Disney voluntarily resigned her employment. That is, Ms Disney was not 'forced' to resign.

• [25] As explained above, on receipt of the Resignation Email, the Respondent's initial position was not to waive Ms Disney's notice period. The Respondent later relented and waived the remainder of the notice period (on 14 March 2025). The effect being that Ms Disney's employment ended on that day. I have considered whether these events support a finding that Ms Disney was dismissed within the meaning of section 386(1)(a) of the FW Act. Section 386(1)(a) of the FW Act is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[3] It is evident that Ms Disney voluntarily left her employment with the Respondent. It was her actions, and not the actions of the Respondent, that resulted in the cessation of her employment. The Respondent relenting and agreeing to waive the remainder of Ms Disney's notice period - which appeared to be the result of Ms Disney's two emails sent on 10 March 2025 where she pressed her resignation to assist with future job prospects - does not amount to a dismissal within the meaning of section 386(1)(a) of the FW Act.

• [26] For the reasons explained above, I find that Ms Disney was not dismissed within the meaning of section 386(1)(a) or (b) of the FW Act. Consequently, the Fair Work Commission has no power to determine whether Ms Disney has been unfairly dismissed, and Ms Disney's unfair dismissal application must be dismissed.

Second question: whether an extension of time under section 394(3) of the FW Act should be granted

• [27] As I have found that Ms Disney was not dismissed within the meaning of section 386(1) of the FW Act, it is not strictly necessary for me to determine whether to grant an extension of time. However, because this second question was argued before me, I have set out my reasons for refusing to grant an extension of time to Ms Disney.

• [28] Section 394(2) of the FW Act provides that an unfair dismissal application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Fair Work Commission allows under subsection (3).

• [29] Section 394(3) provides that the Fair Work Commission may allow a further period for an unfair dismissal application to be made if the Fair Work Commission is satisfied that there are exceptional circumstances, taking into account:

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

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

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

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

• [30] The requirement to take into account the matters set out at section 394(3)(a) - (f) of the FW Act means that each of those matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process.[4]

• [31] In an appeal arising from a general protections application involving dismissal that was made after the period specified in section 366(1)(a) of the FW Act (which necessitated consideration of an application for an extension of time to be determined by the matters set out in section 366(2) of the FW Act), a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) held:

[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

• [32] The ultimate conclusion as to the existence of exceptional circumstances will turn on consideration of the matters set in section 394(3)(a) - (f) of the FW Act and the assignment of appropriate weight to each of those matters.[5]

• [33] Ms Disney submitted that the reason for the delay was that she has miscalculated the 21 day time period. Ms Disney explained that she had understood that the days in that 21 day period was a reference to weekdays only rather than calendar days. Ms Disney explained at the hearing that miscalculation was the sole reason for the delay.

• [34] There is nothing exceptional about the reason for the delay. As explained in Nulty, there is nothing exceptional about a dismissed employee making an unfair dismissal 'out of time' because they are unaware of the time limit to make the application. Such circumstances are not out of the ordinary course, or unusual, or special. I consider that to be equally as applicable as how the 21 days is to be calculated.

• [35] Taking into account the reason for the delay, I am not satisfied that the reason amounts to exceptional circumstances. This weighs against a finding that there are exceptional circumstances to warrant the grant of an extension of time.

Whether aware of the dismissal after it had taken effect

• [36] Ms Disney explained that she was first aware that her employment had ended on 14 March 2025. As such, Ms Disney had the full period of 21 days to make the unfair dismissal application. This weighs against a finding that there are exceptional circumstances to warrant the grant of an extension of time.

• [37] Ms Disney explained that she did not take any action to dispute her asserted dismissal. To the contrary, in the days following the cessation of her employment, Ms Disney thanked Mr Nairn, by way of the email dated 21 March 2025. That email is at odds with the conduct of an aggrieved employee seeking to challenge their dismissal. The absence of any action taken by Ms Disney to dispute her asserted dismissal weighs against a finding that there are exceptional circumstances to warrant the grant of an extension of time.

• [38] I am unable to identify any prejudice to the employer that would result if the extension of time were granted or any prejudice caused by the delay. An absence of prejudice does not necessarily weigh in favour of an extension of time being granted.[6] An absence of prejudice is unsurprising where the delay is short.[7] That the Respondent did not sustain any prejudice arising from Mr Disney's unfair dismissal application being filed 10 days late does not support a finding that there are exceptional circumstances. In the circumstances of this application, I regard the absence of prejudice as a neutral factor.

• [39] When considering the merits of a matter in the context of an application for an extension of time, the member at first instance should not embark upon a detailed consideration of the substantive case.[8]

• [40] I have set out the allegations that gave rise to the asserted dismissal above. The allegations are serious. Ms Disney appears to accept that she breached at least some of the Respondent's procedures that were identified during the investigation. Ms Disney disavows that her conduct involved personal benefit. Rather, Ms Disney suggested that she engaged in such conduct to help people. Even if that was accepted, my preliminary assessment is that Ms Disney is likely to have very limited prospects of persuading the Fair Work Commission that her asserted dismissal was unfair by reference to the criteria in section 387 of the FW Act. That assessment is not a full or firm assessment. It is based only upon the material that was put before me for deciding the two questions that are considered in this decision. However, there is enough such material - most notably, Ms Disney's own admissions about the conduct - to support my preliminary assessment. In the circumstances of this application, I consider the merits of the application as a factor that weighs against a finding that there are exceptional circumstances to warrant the grant of an extension of time.

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

• [41] Ms Disney did not make any submissions with respect to this factor. The Respondent pointed to a decision issued by the Fair Work Commission in 2024 whereby a former employee of the Respondent sought an extension of time. In that case, the Fair Work Commission refused to grant the extension of time. I have had regard to that decision. However, I consider that this application for an extension if time is best determined on its own facts. In the circumstances of this application, I regard this matter as a neutral factor.

• [42] Having considered and weighed each of the matters in section 394(3) of the FW Act both individually and collectively, I am not satisfied that there are exceptional circumstances to warrant an extension of time. Consequently, I am required to decline Mr Disney's application for an extension of time under section 394(3) of the FW Act and dismiss Mr Disney's application for an unfair dismissal remedy.

• [43] For the reasons explained above, Ms Disney was not dismissed within the meaning of section 386(1) of the FW Act. Even if I would have found that Ms Disney had been dismissed, her unfair dismissal application was filed outside the time period in section 394(2)(a) of the FW Act. Ms Disney's application for an extension of time under section 394(3) of the FW Act is declined. On both grounds, I am required to dismiss Ms Disney's application for an unfair dismissal remedy. An order to that effect will be issued separately to this decision.

[3] Saeid Khayam v Navitas English Pty Ltd t/as Navitas English [2017] FWCFB 5162 at [75].

[4] Woolworths Limited v Ms Yu Duo (Lynda) Lin [2018] FWCFB 1643 at [68].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39].

[6] Gail Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [21].

[8] Thomas Cosgrove v Clarity Interiors [2020] FWCFB 5464 at [32].

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