Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for unfair dismissal remedy - extension of time - application granted

[1] This decision determines an application made by Ms Robyn Faulkner (the Applicant) for an extension of time pursuant to section 394(3) of the Fair Work Act 2009 (Cth) (FW Act) to make an unfair dismissal application against her former employer, Bravehearts Foundation Limited (the Respondent).

[2] The application for an extension of time was sought in circumstances where Ms Faulkner filed her unfair dismissal application on 6 June 2025,[1] which was 74 days after the date that Ms Faulkner's dismissal took effect. Ms Faulkner accepts that her unfair dismissal application was filed outside of the 21 day period specified in section 394(2)(a) of the FW Act,[2] and for her unfair dismissal application to proceed that an extension of time is required under section 394(3) of the FW Act.

[3] For the reasons explained below, I have decided to grant the extension of time.

[4] 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).

[5] Section 394(3) provides that the Fair Work Commission (Commission) may allow a further period for an unfair dismissal application to be made if the 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.

[6] 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.[3]

[7] 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

[8] 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.[4]

[9] On 12 September 2022, Ms Faulkner commenced employment with the Respondent.[5] Throughout her period of employment with the Respondent, Ms Faulkner was employed as the Education Team Leader (Nowra). Ms Faulkner's position description was admitted into evidence at the hearing.[6] The position description records the position purpose in the terms reproduced below:

As part of a small team of (1-3 team members) the Team Leader supported by their team members (Education Facilitators) are responsible for delivering Ditto's Keep Safe Adventure scripted incursions for childcare/kinder and primary school children. The Team Leader ensures administration tasks (booking shows, reminders, booking competitors, reporting, delivery of Ditto packs and maintaining the branch office) are completed in accordance with the Ditto's Keep Safe Adventure procedure manual.

The Team Leader works directly with the Education Operations Manager and supports the team members to meet the requirements of their role.

[10] The position description identifies the primary duties and responsibilities of the job held by Ms Faulkner, and the qualifications/experience, personal qualities and skills and abilities that were required for the job held by Ms Faulkner.

[11] Ms Faulkner was responsible for leading a small team that worked from the Respondent's office in Nowra on the South Coast region in New South Wales. The team that Ms Faulkner led was responsible for delivery of the Respondent's Ditto's Keep Safe Adventure scripted incursions to childcare, kindergarten and primary school children in the South Coast region of New South Wales.[7] Both Ms Faulkner and the other team members delivered the incursions in that region. In addition, as the team leader, Ms Faulkner managed administrative tasks and provided support to team members.[8]

[12] On 19 March 2025, Ms Faulkner attended a meeting with Ms Kate McGill (Education Manager) and Ms Danielle Barry (Director of People & Culture).[9] The purpose of the meeting was to commence a consultation process regarding proposed organisational change and the potential impact on Ms Faulkner's job.[10]

[13] On 20 March 2025, Ms Faulkner received a letter from Ms McGill.[11] In summary, the letter advised Ms Faulkner that the Respondent had conducted a review of its Nowra operations. It was said that operational changes may be required to enhance the Nowra operation, which may include making the Education Team Leader (Nowra) job held by Ms Faulkner as redundant. The letter said "_w_e have assessed all available redeployment opportunities within the organisation. At this stage, we have determined that there are no suitable alternative roles available that match your skills and experience". A list of "all available redeployment opportunities" was set out in the letter. Those jobs were all located in Queensland, and were quite different to the Education Team Leader job performed by Ms Faulkner.

[14] On 24 March 2025, Ms Faulkner received a letter from Ms Barry.[12] In summary, the letter confirmed that arising from the review that "in the short term, the Nowra operations will cease its operations". The letter further said that Ms Faulkner's job as Education Team Leader (Nowra) was no longer needed and her employment with the Respondent would be terminated by reason of redundancy.

[15] Ms Faulkner's dismissal took effect on 24 March 2025.[13] Ms Faulkner was paid redundancy pay, in addition to other entitlements.

[16] On approximately 4 June 2025, Ms Faulkner saw two job advertisements placed by the Respondent on seek.com.au. The jobs were advertised as Children's Safety Presenter, Nowra. The job advertisements were admitted into evidence at the hearing.[14] The job advertisements record that there are 2 important parts to the role. This is reproduced below:

The first is to deliver our education program either in the mascot lion cub suit (non-speaking part) or as the facilitator who guides and leads the show and the flow. The other component is the administrative tasks - booking in and following up shows, daily use of our client relationship manager Hubspot, maintaining equipment and stock levels.

[17] The job advertisement for the two jobs as Children's Safety Presenter, Nowra provide detail about the Respondent, the team and the prospective candidate.

[18] On 6 June 2025, Ms Faulkner filed the unfair dismissal application with the Commission.

[19] On approximately 23 June 20205, the Respondent filed a Response[15] to Ms Faulkner's unfair dismissal application. In the Response, the Respondent objected to the application on the grounds that it was, one, lodged more than 21 days after the dismissal took effect and, two, a genuine redundancy within the meaning of section 389 of the FW Act. In addition to those two objections, the Respondent objected to the merits of the application.

[20] On 6 July 2025, the Chambers of Deputy President Easton sent an email to Ms Faulkner. In very summary terms, the email advised it appeared that Ms Faulkner's unfair dismissal application was filed outside of the 21 day period specified in section 394(2)(a) of the FW Act. The email explained Ms Faulkner could apply for an extension of time pursuant to section 394(3) of the FW Act. The email concluded with a request for Ms Faulkner to either discontinue her unfair dismissal application or, by reply email, explain the basis upon which there are said to be exceptional circumstances.[16]

[21] By way of reply email,[17] Ms Faulkner requested an extension of time pursuant to section 394(2)(3) of the FW Act. In the email, Ms Faulkner explained the circumstances surrounding her dismissal and the late filing of her unfair dismissal application. Parts of Ms Faulkner's explanation are reproduced below:

At the time of my dismissal, I accepted Bravehearts Foundation's explanation - that the decision was due to funding shortages and not related to my performance - as genuine. It was only after learning that the organisation had re-advertised my position shortly after my departure that I began to question the legitimacy of the dismissal...

The newly advertised roles reflect the same duties, responsibilities, and region that I covered, with only minor name changes and no significant structural differences...

[22] On 30 July 2025, Ms Faulkner's application for an extension of time was the subject of a hearing before me. Ms Faulkner appeared for herself. Ms Barry appeared for the Respondent. Both parties filed written material in advance of the hearing (in accordance with my directions). There was no cross-examination of any witnesses. All of the written material and oral submissions made at the hearing has been considered.

[23] Ms Faulkner explained the reason for the delay as being that up until she saw the Children's Safety Presenter, Nowra jobs being advertised on 4 June 2025 that she did not question the legitimacy or fairness of her dismissal.[18] Ms Faulkner submitted that the Children's Safety Presenter, Nowra jobs was the 'same job' as the Education Team Leader (Nowra) job that she was made redundant from approximately two months prior to seeing the advertisement for the Children's Safety Presenter, Nowra jobs. Ms Faulkner said that the Children's Safety Presenter, Nowra jobs reflect the "same duties, responsibilities, and region that she covered, with only minor name changes and no significant structural differences" as the Education Team Leader (Nowra) job.[19]

[24] The Respondent opposed the extension of time. In opposing the extension of time, the Respondent submitted that the events that occurred more than 21 days after the dismissal took effect could not be considered by the Commission and that the reason for the delay was linked to that 21 day period.[20] I reject that submission. The delay required to be considered under section 394(3)(a) is the period after the prescribed 21 day period for filing an unfair dismissal application.[21] However, the circumstances from the date that the dismissal took effect must be considered in taking into account the reason for the delay.

[25] In its written material filed in advance of the hearing (consistent with my directions), the Respondent said that the Children's Safety Presenter, Nowra jobs were "materially different" from the Education Team Leader (Nowra) job held by Ms Faulkner.[22] At the hearing, I asked Ms Barry some questions about the differences between the Children's Safety Presenter, Nowra jobs from the Education Team Leader (Nowra) job. Ms Barry's answers to my questions were more equivocal than the position put by the Respondent in its written material filed in advance of the hearing. In summary, Ms Barry explained that the jobs "were similar with differences". Ms Barry was unable to comprehensively explain what the differences were between the Children's Safety Presenter, Nowra jobs from the Education Team Leader (Nowra) job.

[26] It is evident that there are differences between the Children's Safety Presenter, Nowra jobs and the Education Team Leader (Nowra) job. The main difference appears to be that the team leader function previously performed by Ms Faulkner has been reallocated to the newly created NSW Education Team Leader job, which is to be worked out of the Liverpool office. In determining whether there are exceptional circumstances, I am required to take into account the reasons for the delay. In taking into account Ms Faulkner's reason for the delay, I am satisfied that the Children's Safety Presenter, Nowra jobs are not the 'same' job as the Education Team Leader (Nowra) job. However, I find that the Children's Safety Presenter, Nowra jobs are similar enough to the Education Team Leader (Nowra) job to have given Ms Faulkner a reasonable basis to question the legitimacy or fairness of her dismissal. The Children's Safety Presenter, Nowra jobs were advertised a little over two months after the Respondent conducted a review of its Nowra operations. That review resulted in Ms Faulkner being made redundant and the Nowra operations ceasing to operate in the short term. That same review process resulted in the decision to create the Children's Safety Presenter, Nowra jobs.

[27] In finding that these events gave Ms Faulkner a reasonable basis to question the legitimacy or fairness of her dismissal, I am concerned only with the reason for the delay. I am not making a finding or prejudging the genuine redundancy objection or merits. I have found that Ms Faulkner had a reasonable basis on seeing the job advertisements for the Children's Safety Presenter, Nowra job to question the legitimacy or fairness of her dismissal. It is my finding that Ms Faulker had such a reasonable basis to question the legitimacy or fairness of her dismissal that leads me to find that there are exceptional circumstances. It is the fact that there was a reasonable basis to question the dismissal by reason of redundancy after the 21 day period that can be properly described as out of the ordinary course, unusual, special, or uncommon. If I had found that Ms Faulkner did not have a reasonable basis to question the legitimacy or fairness of her dismissal, I would not have been satisfied that there are exceptional circumstances.

[28] Taking into account the reason for the delay, I am satisfied that reason in all the circumstances amounts to exceptional circumstances. This weighs in favour of 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

[29] Ms Faulkner was aware of her dismissal on the date it took effect. Given the reason for the delay, I consider this a neutral matter in reaching my overall conclusion.

[30] Ms Faulkner did not take any action to dispute her dismissal up until filing the unfair dismissal application. Given the reason for the delay, I consider this a neutral matter in reaching my overall conclusion. I add that on seeing the job advertisement, which caused Ms Faulkner to question the legitimacy or fairness of her dismissal, that Ms Faulkner acted promptly and within approximately two days in filing the unfair dismissal application.

[31] The Respondent did not make particularly persuasive submissions as to prejudice.[23] I cannot identify any prejudice to the Respondent. An absence of prejudice does not necessarily weigh in favour of an extension of time being granted.7 In the circumstances of this application, I regard the absence of prejudice as a neutral factor.

[32] 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.9

[33] The determination of the genuine redundancy objection and merits is likely to involve contested facts. I am unable to make a full or firm assessment of the merits of the application. However, I am prepared to express a preliminary view that Ms Faulkner appears to have an arguable case that it may have been reasonable in all the circumstances for Ms Faulkner to have been redeployed into the one of the Children's Safety Presenter, Nowra jobs rather than be dismissed by reason of redundancy. Whether that is the conclusion reached in determining the genuine redundancy objection remains to be seen. It will then be necessary to consider whether the dismissal was unfair. Albeit with those caveats, I consider the merits weigh in favour of a conclusion 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

[34] The parties did not make persuasive submissions with respect to this matter. I was not taken to any person that was or had been in similar position to Ms Faulkner - whether that by a decision of the Fair Work Commission or another employee or former employee of the Respondent. In the circumstances of this application, I regard this matter as a neutral factor.

[35] Having considered and weighed each of the matters in section 394(3) of the FW Act both individually and collectively, I am satisfied that there are exceptional circumstances to warrant an extension of time. Consequently, I extend the time for making the unfair dismissal application under section 394(3) of the FW Act. The parties will shortly receive a notice of listing, which lists the matter for a case management conference.

[1] Digitial Hearing Book (DHB), page 1.

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

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

[21] Shaw v Australian and New Zealand Banking Group Corporation Limited [2015] FWCFB 287 at [12], Keith Long v Keolis Downer t/a Yarra Trams [2018] FWCFB 4109 at [40].

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