s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application out of time - whether exceptional circumstances exist

• [1] On 25 February 2025, Ms. Sarah Hoyle (Applicant) filed an application for a remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act) relating to her alleged unfair dismissal by her former employer, Australian Venue Co. Pty Ltd (Respondent).

• [2] The Respondent raised two objections to the application. The first objection was that the application was made after the 21-day time period prescribed by s.394(2) of the Act had elapsed. The second was that the Applicant was not dismissed by the Respondent but voluntarily resigned her employment on 18 December 2024.

• [3] Although there was a dispute between the parties as to whether the Applicant was dismissed or resigned her employment, it was accepted that the Applicant's employment came to an end on 18 December 2024. The Applicant also accepted that the application for an unfair dismissal remedy was filed outside the 21-day time period referred to in s.394(2) and sought an extension of time under s.394(3) to allow the application to proceed.

• [4] An application for an unfair dismissal remedy that is made outside the 21-day time period is not validly made unless and until an extension of time is granted under s.394(3). It is necessary and appropriate to deal with that objection first.[1] This decision therefore deals with the question of whether or not an extension of time can and should be granted. For the reasons that follow, I have determined that the application for an extension of time should be refused.

• [5] Prior to the termination of the Applicant's employment, the Applicant had, since approximately August 2023, been employed by the Respondent under the terms of the Hospitality Industry (General) Award 2020. The Applicant was employed at the Respondent's Mackay premises at the time the employment relationship came to an end.

• [6] The Applicant's evidence was that on 18 December 2024 she met with two managers from the Respondent to discuss an incident involving an altercation between the Applicant and a patron at the hotel where she worked. That altercation had taken place on 14 December 2024. The incident on that day had also prompted an exchange between the Applicant and one of the Applicant's managers, the result of which was that the Applicant said to the manager on 14 December 2024 that she was resigning. The Applicant said that her statement on that day about resigning was simply "blowing off steam." She said it had occurred because she was exhausted and irritable and had been suffering from the after-effects of concussion caused by a fall at the workplace on 5 December 2024

• [7] In spite of this "resignation" on 14 December, the Applicant said she was later asked if she would be coming back to work and did so on 18 December 2024. That evidence was not challenged and I accept it.

• [8] The discussion the Applicant had with the two managers after her return to work on 18 December 2024 did not go well. There was a further exchange of words. On the Applicant's version, she was told by one of the managers "Well you quit. What the fuck are you doing here? Fuck off out of here now." However, the Respondent said the Applicant resigned on 18 December 2024. The Respondent provided a copy of a text message sent by the Applicant to the venue manager on that day which included the following:

"I don't feel i can continue working at the met with a manager who yelled and berrated me in front of customers and then not be allowed to speak...Anyway i am leaving I have another job already and in all honesty I think that there is no incentive to stay at the met..."

• [9] The Applicant subsequently "unsent" the text message. By that time the Respondent's venue manager had seen the message and sent a reply message asking the Applicant to email her resignation to the venue's email address and return uniforms. The Applicant did not work for the Respondent again.

• [10] In order to determine whether exceptional circumstances exist to justify an extension of time, I am required to take into account the matters listed in s.394(3). Section 394(3) provides as follows:

(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.

• [11] The ultimate conclusion as to exceptional circumstances requires a consideration of all of the matters in s.394(3) and the allocation of appropriate weight to each of them. I deal with each of the matters in s.394(3), in turn, below.

Section 394(3)(a) - Reason for the delay

• [12] The delay is the period after the prescribed 21-day period for lodging an application; it does not include the period from the date the dismissal took effect.[2] However, circumstances arising prior to the delay may be relevant to the reason for the delay.[3] The Applicant submitted that the dismissal took effect on 18 December 2024 and therefore accepted that the time period for making the application expired on 8 January 2025. On that basis, the application was out of time by a period of 48 days.

• [13] An applicant does not need to provide an explanation for the entire period of the delay. The absence of an explanation for any part of the delay will usually count against an applicant. On the other hand, a credible explanation for the entirety of the delay will generally weigh in an applicant's favour.[4]

• [14] The Applicant said that the delay in filing the application was attributable to the effects of a concussion that she suffered as a result of a fall at her workplace on 5 December 2024. The Applicant said the effects persisted from that date until 6 February 2025. She said she was in a constant state of confusion, that she was not clear that she had been dismissed and that it did not become apparent to her that she had been unfairly dismissed until her housemate pointed this out at some time around the beginning of February 2025.

• [15] The Applicant supplied two medical certificates obtained for the purposes of a workers' compensation claim in support of her submission. The first was dated 19 December 2024 and certified the Applicant unfit for work from that date until 6 January 2025. The second certificate had no discernible date but also certified the Applicant as unfit for work from the period 6 January 2025 until 6 February 2025. The Applicant said that the effects of the concussion persisted beyond 6 February 2025 but that she managed to file her application within 21 days from 6 February 2025 even though she had a limited support network.

• [16] The Respondent argued that the Applicant had the cognitive capacity to draft a message of resignation on 18 December 2024 citing workplace conflict, dissatisfaction with her remuneration and the fact that she had obtained alternative employment. Further, the Respondent said that the Applicant was clearly capable of making a WorkCover claim on or about 19 December 2024 and taking the steps necessary to process that claim which was ultimately accepted. Further, the Respondent provided evidence of email correspondence from the Applicant to the Respondent on 14, 18 and 25 December 2024 and 6 January 2025 making inquiries about training courses, timesheets, underpayments and taxation. The Respondent contended that the evidence did not establish that the Applicant was incapacitated or at least incapacitated to the extent that she was unable to file an application within the 21-day time period.

• [17] On the basis of the medical certificates provided I accept that the Applicant experienced after-effects from the concussion event on 5 December 2024 and that this would have adversely affected her capacity to prepare and lodge an application. I also accept that the Applicant's medical condition persisted until at least 6 February 2025, being the last date referred to in the second medical certificate. However, the certificates certify the Applicant as unfit for work but provide no detail as to the Applicant's capacity more generally. The emails from the Applicant to the Respondent demonstrate that the Applicant retained at least some level of capacity to compose and consider correspondence relating to her employment. Further, there is no medical evidence as to the state of the Applicant's health beyond 6 February and I am not satisfied on the evidence that the Applicant's condition beyond 6 February 2025 was so debilitating that it provides a credible explanation for that part of the period of the delay that extends from 7 February to 25 February when the application was filed. In short, I conclude that the Applicant has provided a partial explanation for a part only of the period of the delay.

Section 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

• [18] On the Applicant's own evidence, she was dismissed in plain terms on 18 December 2024. I do not accept that the Applicant was not aware that her employment had come to an end or first became aware of the 'dismissal' after it took effect and am of the view that the Applicant had the benefit of the full 21-day period to file the application. I do not consider that this is a factor that weighs in favour of a conclusion that exceptional circumstances exist.

Section 394(3)(c) - Any action taken by the person to dispute the dismissal

• [19] The Applicant's text message of 18 December 2024 complained about her treatment but did not expressly refer to or take issue with her 'dismissal'. On 20 December 2024 the Applicant was also sent an email from the Respondent's HR department which said:

An end of employment request has been submitted for your employment to our payroll team.

Mistakes do happen, so please reach out to us at AskHR@ausvenueco.com.au if you believe this request is an error and your employment is to remain active.

This end of employment request will be processed in the next available pay run after your last date of work...

• [20] The Applicant did not respond to the 'end-of-employment' email. She did not respond by either disputing that she had been dismissed or retracting her resignation.

• [21] The email exchanges of December 2024 and January 2025 do not show that the Applicant was disputing her dismissal. The Applicant's evidence was that she had contact with the Respondent's payroll office about "finalising her employment". I conclude that the Applicant did not take any action to dispute the dismissal in any of the contact with the Respondent after 18 December 2024 and prior to the filing of the application. The Respondent was therefore not on notice that an application of this kind was going to be made until they received the application. This weighs against a conclusion that there are exceptional circumstances.

Section 394(3)(d) - Prejudice to the employer, (including prejudice caused by the delay)

• [22] There was no evidence of any relevant prejudice to the Respondent if time for the making of the application were to be extended. A mere absence of prejudice is not of itself sufficient to establish exceptional circumstances but neither does it point against such a conclusion. I regard this as a neutral consideration here.

Section 394(3)(e) - Merits of the application

• [23] As is the case with extension of time applications under Part 3-1 of the Act,[5] it is not generally necessary or appropriate for the Commission to resolve all contested issues of fact going to the merits for the purposes of taking account of the merits of the application as required by s.394(3)(e). These are matters that are dealt with at a full hearing in the event the substantive application is dealt with. The evidence as to the circumstances in which the Applicant's employment came to an end was limited. The Applicant claimed that she was summarily dismissed after a verbal altercation with her managers. The Respondent's contention was that no question of unfair dismissal arises because the Applicant resigned her employment and was not dismissed. The Respondent did not give evidence as to the conversation on 18 December 2024 during which the alleged dismissal occurred but relied on the text messages sent by the Applicant on that day indicating that she was leaving her employment. There was no evidence as to what prompted the altercation between the Applicant and the patron on 14 December or why the Applicant's manager berated the Applicant for her conduct on that night. The details of the conversation that occurred between the Applicant and her managers on 18 December were scant and insufficient to allow a proper assessment to be made of the Applicant's prospects. In all the circumstances I am unable to come to a view as to the merits of the matter and I regard the merits of the application as a neutral factor in the assessment.

Section 394(3)(e) - Fairness as between the person and other persons in a similar position

• [24] I was not made aware of other persons in a similar position to the Applicant agitating the same or similar issues as have arisen here. I regard this as a neutral factor.

• [25] Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves 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]

• [26] Having considered the various matters referred to in s.394(3) and weighed them in the balance, I am not satisfied that there are exceptional circumstances in this case. I am therefore unable to extend time for the application to be made.

• [27] The application for an unfair dismissal remedy is dismissed.

By video using Microsoft Teams at 2:00pm AEDT on Thursday, 3 April 2025.

[1] Herc v. Hays Specialist Recruitment (Australia) Pty Ltd [2022] FWCFB 234.

[2] Long v Keolis Downer [2018] FWCFB 4109 at [4].

[3] Shaw v. ANZ Banking Group Ltd [2015] FWCFB 287 at [12].

[4] See Stogiannidis v. Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39] and [40] in relation to similar provisions under Part 3-1. See also Reeves v. Monadelphous Engineering Associates Pty Ltd [2018] FWC 2219 at [20].

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[7] Ibid. See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901.

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