s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances - application dismissed

• [1] An application has been made by Ms Sofia Blanco pursuant to s 365 of the Fair Work Act 2009 (Cth) (the Act) alleging she was dismissed from her employment by Richemont Australia Pty Limited (Richemont) in a manner that contravened Part 3-1 of the Act. Richemont objects to the application on the basis it was filed outside the time period specified in s 366 of the Act.
• [2] Ms Blanco's dismissal took effect on 3 July 2025, but her application was filed in the Commission on 8 August 2025. Ms Blanco argues that I should be satisfied exceptional circumstances exist warranting a further period be allowed for the application to be made. On 20 October 2025, I conducted a hearing to determine that issue.
• [3] At my direction, prior to the hearing, each of the parties filed an Outline of Submissions and Statements of Evidence. Ms Blanco appeared for herself at the hearing and Ms Shields from Norton Rose Fulbright appeared for Richemont after I granted it permission to be represented by a lawyer pursuant to s 596 of the Act.
• [4] Ms Blanco gave evidence at the hearing and was subject to brief cross examination. A witness statement was tendered by Richemont from Ms Cong Guo, an area manager. I explained to Ms Blanco that she was entitled, if she wished, to ask Ms Guo questions about her evidence but Ms Blanco said she did not wish to do so, and Ms Guo was not required for cross examination.
• [5] Even if not directly referred to in this decision I have given consideration to all of the material filed by the parties in relation to this matter, and all of the supplementary information provided at the hearing by way of further evidence and submission.

• [6] Richemont Group administers various high end luxury good brands. Ms Blanco performed work for Richemont in relation to a brand called Van Cleef and Arpels prior to the employment that is concerned with this application. The employment the subject of this application commenced on 3 June 2025 when Ms Blanco commenced work for Richemont as a casual Sales Associate working for a brand called IWC Schaffhausen.
• [7] A month later, on 3 July 2025, Ms Guo told Ms Blanco she was dismissed. This occurred after verbal exchange in which Ms Guo considered Ms Blanco spoke to her in a "defensive and impolite manner". On Ms Blanco's account, Ms Guo said to her, among other things, that the decision to terminate her employment was a "final decision". Richemont say the reason for the dismissal was Ms Blanco's work performance and conduct.
• [8] Ms Blanco argues that her dismissal occurred for reasons which include her having exercised workplace rights by requesting "reasonable adjustments" in relation to her Attention Deficit Hyperactivity Disorder (ADHD) and making inquiries relating to that condition. She also claims that her ADHD condition - a "disability" within the meaning of s 351 of the Act - and it's characteristics, were a reason her employment was terminated.
• [9] Ms Blanco says that on 4 July 2025 - the day after her termination of employment - she "initiated email correspondence with HR documenting the events of 3 July and Gloria's alleged "immediate termination". She says that on 10 July 2025 she had an MS Teams meeting with Ms Estelle Bohensky who she described as "Head of HR" for "IWC". Ms Blanco said during the conversation, Ms Bohensky "committed to sharing my experience and feedback with management", and "committed to contacting VCA HR regarding the matter for follow up action". She said Ms Bohensky said that "Alex", "HR for VCA", was on leave at the time. She said Ms Bohensky said that "a follow up would be made after Alex's return". "VCA" refers to another of the brands administered by Richemont - Van Cleef and Arpels (for whom Ms Blanco had previously worked).
• [10] Ms Blanco said that based on this conversation she believed that "HR was actively reviewing the matter", and "a response was forthcoming", that "the matter had not been finalised" and "my dismissal was under review".
• [11] Ms Blanco said she received no communication whatsoever from following this conversation, from either IWC Schaffhausen or Van Cleef and Arpels human resources managers. She said she contacted both Ms Bohensky and "Alex" after "waiting what I was told deemed a sufficient and reasonable period for HR to conduct their internal review and consultation process" but she did not receive a reply.

• [12] Section 366 of the Act requires that an application in relation to a dismissal dispute must be made within 21 days after the dismissal took effect. A further period of time may be allowed, but only if the Commission is satisfied that there are "exceptional circumstances".
• [13] Ms Blanco's application was filed on 8 August 2025. As the date the dismissal of her employment took effect on 3 July 2025, the application should have been filed before midnight, 24 July 2025. It was filed 15 days late.
• [14] To determine whether "exceptional circumstances" exist warranting a further period for the application to be made (an "extension of time") the Act requires that I must give several factors consideration, evaluating and giving each of them due weight[1]. The factors are:

1. the reason for the delay; and 2. any action taken by Ms Blanco to dispute the dismissal; and

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

1. the merits of the application; and 2. fairness as between Ms Blanco and other persons in a like position.

• [15] While the Commission is required to give consideration to each of these factors, the term "exceptional circumstances" has its ordinary meaning, requiring consideration of all of the circumstances[2]. Circumstances may be exceptional because of one exceptional matter, or a combination of exceptional matters, or a combination of ordinary matters which when taken together are exceptional[3]. The test of exceptional circumstances in relation to extensions of time to lodge applications relating to dismissal establishes a "high hurdle" for an application for an extension[4].

• [16] "The delay" is the period commencing immediately after the date upon which the application should have been filed, continuing until the date it was. However, events or circumstances occurring within the 21 days after the dismissal, or before the dismissal may have an effect that continues into the period of the delay and may be considered in this regard[5]. In this matter, the delay is the 15 day period between 24 July 2025 and 8 August 2025.
• [17] Ms Blanco does not need to provide a reason for the entire period of the delay, but the Commission will usually focus its enquiry on whether the reason for the delay is "adequate", or "credible" or "acceptable", and the absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances[6]. The reason for the delay need not necessarily be one that "justifies" the delay, but the allowance of further time is discretionary, taking into account whether exceptional circumstances exist, and it is in this context that the assessment is made[7].
• [18] Ms Blanco said the reasons for the delay was:
  1. Medical incapacity relating in particular to ADHD and the absence of ADHD medication
  2. Acute distress and psychological impact relating to the trauma of her dismissal
  3. A lack of clarity about employment status
  4. "Incorrect" advice from the Fair Work Ombudsman and Job Watch

Ms Blanco's assertions and evidence in relation to medical incapacity and Richemont's submissions

• [19] Ms Blanco tendered two documents relating to her medical health. The first was a letter from a Dr Bachireddy of 8 September 2025 which said Ms Blanco had been diagnosed with ADHD in 2020 and has been under treatment since. It said that she had recently been running out of prescribed medication which "impacted the continuity of her treatment". Ms Blanco tendered a second letter from Dr Bachireddy of 16 October 2025 with more detailed information. It says that in recent months Ms Blanco has experienced a lapse in medication which "has led to a worsening of her ADHD symptoms, which include difficulty concentrating, procrastination, impaired executive functioning, delayed processing and challenges with task completion". It also says that Ms Blanco had suffered a psychological impact as a result of her termination of employment, which was "significant, triggering heightened anxiety, insomnia, panic symptoms and self-doubt. It says that in the Doctor's clinical opinion, the "the stress associated with the termination has exacerbated her underlying ADHD and mental health vulnerabilities". The letter records the Doctor's view that, having been told by Ms Blanco that she was not thinking clearly, "Sofia's recent difficulties with functioning and completing administrative requirements are a direct result of the combined effects of her unrelated ADHD and the psychological distress caused by the manner of her dismissal".
• [20] Ms Blanco submitted that the ADHD condition is not well understood and that it can be extremely debilitating and that I should have careful regard to what her Doctor's letters said. I accept this submission and have considered those letters.
• [21] Ms Blanco said that at the time of her dismissal, she "abruptly lost access to [her] prescribed ADHD medication". Ms Blanco confirmed in her oral evidence that this may have been a week or two before the dismissal of her employment and she has not yet regained access to her medication. I therefore take it that for the entirety of the period since the dismissal of Ms Blanco's employment, continuing through the period of delay, to the point at which she filed her application, and since, and during the conduct of this proceeding, including the hearing, that Ms Blanco has not had access to her ADHD medication.
• [22] Ms Blanco asserts that she gradually regained functional capacity after obtaining appropriate support from her GP. She said that she also received support from friends and family that helped her regain "motivation".

Ms Blanco's assertions in relation to the trauma of the dismissal

• [23] As referenced in her Doctor's letter, Ms Blanco said that the nature of her dismissal, which occurred "suddenly and in the presence of others", combined with her already "vulnerable state due to unmedicated ADHD" triggered "acute panic attacks, physical manifestations of stress, severe insomnia and mental exhaustion". She said she was struggling to manage basic self-care and daily tasks, let alone "navigate the Fair Work Commission's processes, understand my rights, or prepare a comprehensive application within 21 days".
• [24] Ms Blanco tendered in evidence a transcript of part of the conversation she said she had on 3 July 2025 with Ms Gao, based on a recording she said she made of it. Ms Gao said in her evidence that she did not know or consent to the conversation being recorded, and Richemont objects to reliance being placed on the recording. It did not object to the transcript being tendered, but only on the basis that it is evidence of Ms Blanco's recollection of the conversation.
• [25] Based on this document being Ms Blanco's recollection of the conversation occurring as part of the process by which her employment was terminated, I note that the conversation between her and Ms Gao is somewhat acrimonious. Ms Blanco quite directly challenged Ms Gao as being difficult to work with. Ms Gao gave little ground and firmly insisted on Ms Blanco returning her phone and the decision about her employment being final. It was a somewhat heated exchange, and Ms Blanco said in her oral evidence she was crying during the conversation.

Consideration as to Ms Blanco's assertions as to her medical state and the trauma associated with the dismissal

• [26] It is well established that an applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay[8]. While a period of incapacity, such as hospitalisation, may in some circumstances explain some of the delay, the period of the impact of the medical condition should be considered and weighed within the context of the total period of the delay, and the absence of any other acceptable reason for the delay[9].
• [27] Richemont submitted that in relation to the evidence Ms Blanco did produce, there is no assertion as to incapacity during the period of delay (the 15 days after 24 July 2025, before the application was filed). It also points out there is little evidence of incapacity the time of dismissal or afterwards. It observes that despite her assertions and her Doctor's letters regarding her lack of medication and its effects, Ms Blanco was able to attend work on 3 July 2025, communicate with its human resources team (on 4 July 2025, 10 July 2025 and thereafter) and seek advice from the Fair Work Ombudsman (FWO) and Job Watch on or around 1 August 2025.
• [28] Further, Richemont observed in its submissions that Ms Blanco still does not have access to medication - a circumstance she said had a significant impact on her ability to function - but has, despite this, been entirely competent to represent herself in this proceeding, including by preparing, filing and serving written submissions and participating in the hearing.
• [29] There is merit in these submissions. I accept that on the basis of Ms Blanco's evidence, and the letters tendered from her Doctor, she has an ADHD diagnosis, did not have access to her medication at the time of her dismissal and thereafter, and still does not. I accept that as a result her cognitive capacity was less than what it might ordinarily be for some part of that period of time, before her capacity improved with the assistance of her GP, friends and family. However, the evidence, in relation to which she bears the onus, lacks precision, particularly in terms of the period of the delay. I do not understand Ms Blanco to have been entirely incapacitated. At its highest, her case might allow an inference to be drawn from the evidence that in the period immediately following dismissal, things were particularly difficult for her, because of her condition, lack of access to medication and the distressing impact of losing her job. However, during the same period she was able to, for example, participate in an MS Teams meeting with Ms Bohensky. By 1 August 2025 she was, as is described below, able to persistently seek advice from FWO and Job Watch.
• [30] I consider this evidence demonstrates to some extent a level of capacity on the part of Ms Blanco. In those circumstances, evidence of incapacity must be clear and precise. I have two letters from Ms Blanco's Doctor but little more of any substance.
• [31] There is no doubt that being terminated from employment can be an extremely distressing experience. I accept this was so for Ms Blanco. The conversation with Ms Gao was acrimonious and I accept the experience was for Ms Blanco humiliating and upsetting. However, it is well established that stress, shock, confusion and other similar conditions which can often arise from dismissal are ordinarily in and of themselves not exceptional circumstances[10]. While there may be circumstances in which the nature of a person's dismissal might be so extreme as to be exceptional, being dismissed in a verbal conversation which is somewhat heated is not out of the ordinary.
• [32] Ms Blanco asked me to have regard to the decision of Deegan C in Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group[11]. In that decision the Commissioner said:

"The applicant's case is particularly unusual. The respondent does not deny that the applicant was required to take annual leave, apparently as some type of disciplinary action. Sick leave he applied for during his annual leave was refused by his employer. He was due to return from annual leave in early November 2009 but supplied his employer a sick leave certificate exempting him from work until 3 December 2009. The employer sought authority to access the applicant's medical records and advised that it would make arrangements for the applicant to be assessed by an independent medical practitioner. The employer, despite being provided with medical certificates covering the applicant until 8 January 2010, suspended any payment for sick leave "pending the determination of this matter".

After advising the applicant that separate correspondence would be sent to him about the independent medical assessment it required him to undertake the respondent appears not to have made arrangements for any such assessment, but on 10 December wrote to the applicant accusing him of abandoning his employment. The applicant's solicitors responded by letter of 15 December denying any such abandonment but the applicant's employment was, nevertheless, terminated on the ground of abandonment on 23 December 2009.

So far as the reason for the delay in filing is concerned, I am satisfied by the medical evidence supplied that the applicant was in no fit condition to deal with the matter until late January 2010. I am also satisfied that the manner in which the termination occurred, and the fact that the letter was supplied 2 days before the Christmas holiday break, exacerbated the situation. Clearly the employer was aware, upon receipt of the letter of 15 December, that the applicant contested the claim of abandonment of employment. There is no prejudice to the employer caused by the delay in filing"[12].

• [33] As is evident from this passage from the Commissioner's decision, there are several differences between the circumstances of that case, and this one, and, to some extent, the decision in Ovenden is instructive as to some of what is lacking in Ms Blanco's explanation as to the reason for the delay in her making her application, on medical grounds and based on the trauma of the dismissal. First, the context of the matter described by the Commissioner as "unusual" does not exist in Ms Blanco's case. She was not subjected to a weird disciplinary process involving forced leave and the denial of sick leave. Her's is not a case in which there was a dispute about abandonment of employment. Secondly, and most importantly, there was apparently evidence before the Commission in Ovenden which explained that the applicant was "in no fit condition to deal with the matter until late January 2010". That is not the case on the evidence before me - Ms Blanco was fit to deal with the matter, so some extent, between 4 and 10 July 2025 when she corresponded and met with human resources, and again later, when she contacted them again, and to seek advice from various sources on 1 August 2025.
• [34] This is not a case in which I consider it appropriate to dismiss entirely the explanation Ms Blanco has proffered for the delay in making her application relating to her medical challenges at the time of and after her dismissal. I accept that for some of the period she was facing health challenges of a kind she was ordinarily better able to manage, when she had access to her usual medical treatment program. But the test of exceptional circumstances imposes a high hurdle. Ms Blanco's state during the critical period - the period after 24 July 2025 - is not the subject of a clear explanation as to delay. I do not accept the evidence establishes she was incapacitated during this time. This aspect of Ms Blanco's explanation for delay does not rise to the level that provides an "acceptable" explanation for her not filing her application within the time period prescribed by the Act.

Uncertainty or confusion about the termination of her employment

• [35] Ms Blanco submitted that a further explanation as to the delay in her filing her application was that she did not receive any formal written communication of her termination, and she reasonably relied on statements she said were made to her by "HR" that her employment status was under review and had not been definitively determined. She said she could not identify whether her employment had formally ended, the effective date of termination and whether internal review processes were still underway.
• [36] Richemont submits that the termination of Ms Blanco's employment on 3 July 2025 was unequivocal.
• [37] While not always entirely consistent, to a large extent Ms Blanco appeared to accept in her materials that her employment was dismissed on 3 July 2025. Her application asserts the effective date of termination is 3 July 2025. Her own evidence as to the conversation she had with Ms Gao on 3 July 2025 confirms her understanding of having been told the decision was "final".
• [38] Thus, even if Ms Blanco was entitled to think or hope that her conversation with Ms Bohensky might lead to some change of circumstance, she had been dismissed.
• [39] I do not accept that the hope that the circumstances might change provides an acceptable reason for delaying making an application. And in any event, any hope Ms Blanco may have had of a change in circumstances seems to lack basis after 10 July 2025 and most certainly by later in July 2025, when she continued to receive no response from human resources. Uncertainty or lack of clarity seems not have any justifiable basis during the "critical period" - the period after 24 July 2025 when the application should have been filed, and when it was. I do not accept this as constituting an acceptable reason for the delay in this application being filed in time.

• [40] In her written submissions, Ms Blanco described advice she received from FWO and Job Watch as "incorrect" which she suggested provides a further reason for her delay in filing her application within the relevant time period. However, her evidence in relation to her interaction with these two bodies is insufficient for me to conclude there was "error" in the advice she received.
• [41] Ms Blanco said that initially, FWO's advice was unhelpful, and consisted largely of referral to other bodies. She said she spoke to FWO about three times, and it was explained that due to her employment status and length of service she was not eligible to make an unfair dismissal claim.
• [42] Ms Blanco said that her interaction with Job Watch was similar and she spoke to that organisation about four times, eventually receiving advice about general protections and discrimination.
• [43] Ms Blanco also said in her evidence that FWO and Job Watch advised her to allow "HR approximately 2 weeks to respond before escalating matters to formal proceedings".
• [44] Ms Blanco confirmed in her evidence that her interaction with both FWO and Job Watch occurred on or after 1 August 2025, and not before. Thus, when speaking to these organisations, she was already outside the prescribed time limit.
• [45] I find Ms Blanco's evidence about having been told by both FWO and Job Watch to "delay formal proceedings" lacks the specificity necessary for me to find that these two organisations - who I consider are undoubtedly well aware of the time limits attaching to most types of legal proceedings associated with dismissal of employment - provided advice to Ms Blanco that was incorrect. I note that if Ms Blanco was told at or around 1 August 2025 to wait a further two weeks for a response from Richemont, and had done so, more than a month would have elapsed since her last contact. If Ms Blanco somehow construed what she was being advised by these bodies as suggesting she should hold out hope for further contact after at this point not hearing anything since 10 July 2025, I consider she must take responsibility herself for that further delay.
• [46] It seems to me Ms Blanco conflated advice and information she received which she did not find particularly helpful, or inspiring, with the concept of "incorrect" advice.
• [47] I do not accept these interactions, which occurred after the time limit expired, are adequate explanations for her delay in filing the application within time.

Action taken by Ms Blanco to dispute the dismissal

• [48] In deciding whether to grant an extension of time in this matter I am required by the statute to take into account what if any action was taken to dispute the termination of employment.
• [49] Ms Blanco did take steps to dispute the dismissal of employment, by raising the matter with Ms Bohensky and "Alex". There was reasonably clear evidence before me as to the means by which she did this on 4 July 2025 and 10 July 2025 - where on 10 July 2025 she had an Ms Teams meeting with Ms Bohensky. She also says she made further contact with both persons after this date, although in this regard her evidence was much less clear.
• [50] It is therefore unclear, on the evidence before me, the extent to which Richemont could or should have been aware that there was an ongoing controversy about Ms Blanco's dismissal throughout July and in August 2025, when her application was eventually made.
• [51] The assessment I am required to make occurs in the context of whether discretion should be exercised to allow a further period within which Ms Blanco's application may be made. This is not a case where the Applicant has stood passively following the termination of their employment and some weight might be given to Ms Blanco's efforts to raise the matter with human resources. However, I do not consider this weight is of such an extent as to overwhelm the lack of a credible or justifiable reason for the delay.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [52] Richemont submits prejudice would be caused to it if an extension of time was granted, including because over the significant time that has elapsed since the end of Ms Blanco's employment, key personnel who would otherwise be involved in the response to the application no longer work for it. I consider this carries some weight against the granting of an extension of time in this matter.
• [53] Ms Blanco submitted that the Richemont will suffer no material prejudice - the delay is relatively modest; events in question are recent and documentary evidence exists and has been preserved.
• [54] There is some merit in these submissions, and I consider the prejudice occasioned to Richemont of an extension was granted is moderate at best, given it appears to me to be capable of defending the proceedings even though some of its relevant personnel have left.

• [55] The Commission not required to make a detailed analysis of the substantive merits of the application as this stage of the proceedings[13]. Because at this stage there will not ordinarily be a great deal of evidence before the Commission about the merits of the application, it is often not possible to attach great weight for or against granting an extension because of its underlying merits. In this matter a number of factual assertions have been made by both parties and several of these are contested. I do not consider this factor weighs in favour or against a finding of exceptional circumstances in this matter.

Fairness as between Ms Blanco and other persons in a like position

• [56] Ms Blanco submitted that granting her an extension of time would not cause any unfairness when compared with other applicants in a like position, and that other applicants who find themselves in comparable circumstances, particularly those dealing with a disability, have been granted extension on the basis that strict adherence to the statutory timeframe would otherwise deny them a fair hearing. Outside of her reference to Oveden she did not provide any specific examples. Ms Blanco submitted that denying her an extension would penalise her for circumstances beyond her control, and an extension simply ensures she is treated consistently with others in similar positions.
• [57] Richemont submitted that granting an extension would be inconsistent with the manner in which the Commission has dealt with people in similar positions. In its written submissions, it referred to various decisions of the Commission involving aspects of similarity with some elements of Ms Blanco's circumstances. I note that none of these decisions present circumstances exactly like Ms Blanco's, even if there are some similar aspects.
• [58] Ultimately, I was not persuaded by either party that a matter of fairness arises as between Ms Blanco's circumstances and other persons in a like position that weigh for or against the grant of an extension of time in this matter.

Is the Commission satisfied that there are exceptional circumstances, taking into account matters including those above?

• [59] I do not consider that any of the factors I am required to consider weigh in favour of a finding that the circumstances giving rise to Ms Blanco's delay in filing her application with the prescribed time limit are exceptional. Most importantly, I do not consider the reasons she has submitted as to her explanation for the delay are exceptional. Ms Blanco described the task of filing her application in the Commission as the preparation of a "comprehensive application". The process of filing an application of this kind does not call for a comprehensive submission. The application Ms Blanco eventually filed was not comprehensive. The process is streamlined and simplified and requires the completion of a short form. Thus, while I have accepted that due to the absence of her medication, for some of the period in question her capacity was not what it may have ordinarily been, I do not accept, based on the evidence she has provided, she was incapacitated, especially later in July and early August 2025, to the extent she could not have completed the simple application process. I also do not accept she should have been under any misapprehension after 3 July 2025 that her employment was dismissed, nor was she provided with "incorrect" advice from the advisory services she accessed. Having considered each of the factors set out in s 366(2) of the Act and the overall circumstances of this matter, I consider there is little telling in favour of a finding of exceptional circumstances.

• [60] This application was made outside the prescribed time limit, and, having evaluated each the matters identified in s 366(2) of the Act, I am not satisfied that there are exceptional circumstances justifying the allowance of an extension to the statutory time limit to be made in this matter. I decline to grant an extension of time for the filing of the application.
• [61] The application is dismissed, and an Order[14] will be issued in conjunction with this decision.

[1] Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 (Stogiannidis); Kuncho Kurtev v KCB Australia Pty Ltd, Toni Telfer [2025] FWCFB 13 [22] - [23] (Kurtev)

[2] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

[4] Kurtev [19]; Abu Murad v Command51 Services Pty Limited [2024] FWCFB 307 [26]; Stogiannidis [14]

[5] Olivia Wales v Thejo Australia Pty Ltd [2025] FWCFB 178 [36]

[8] Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285 [22]

[9] Woolworths Limited v Ms Yu Duo (Lynda) Lin [2018] FWCFB 1643 [67]

[10] Rosso v Teddy Bear Cottage Early Childhood Services Pty Ltd [2022] FWC 189 [25] - [32]

[11] [2010] FWA 3863

[14] PR792796

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