s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection -whether to extend time for making of application - exceptional circumstances not found - application dismissed

• [1] On 29 January 2025, Ms Tracey Davis made a general protections application to the Fair Work Commission under section 365 of the Fair Work Act 2009. Ms Davis alleges that she was dismissed by QPuzzles Pty Ltd (QPuzzles/First Respondent) and Mr Phillip Malouf (Mr Malouf/Second Respondent), Director of QPuzzles, on 19 December 2024 in contravention of her workplace rights.

• [2] QPuzzles opposed the application, by way of raising two jurisdictional objections, that the application was lodged out of time and that Ms Davis was not dismissed. Specifically, QPuzzles submitted that Ms Davis resigned on 19 December 2024.

• [3] Section 366(1) of the Act states that a general protections application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to section 366(2). If the effective date of dismissal was 19 December 2024, the 21st day was 9 January 2025. As such Ms Davis had until then to lodge her application in time. Ms Davis lodged her application on 29 January 2025, therefore her application is 20 days out of time.

• [4] Ms Davis therefore requires the Commission to grant a further period within which to bring her application.

• [5] I issued directions on 11 March 2025, for the parties to file their material. The question of whether to grant additional time was dealt with at a Determinative Conference on 20 May 2025. Ms Davis represented herself and Ms Annalise Thompson, O'Reilly Workplace Law, represented QPuzzles. Both parties filed written submissions and witness statements. Ms Davis gave evidence in support of her application. Mr Jaime Dormer, Director of QPuzzles, gave evidence on behalf of QPuzzles.

• [6] For the following reasons, I have decided not to grant Ms Davis an extension of time.

• [7] I note this decision only considers and decides whether to grant Ms Davis an extension of time to file her application, and not whether she was dismissed or resigned. Regardless, it is not disputed that the employment relationship ended on 19 December 2024.

• [8] Additional time can be allowed under section 366(2) of the Act if there are exceptional circumstances. These are circumstances that are "out of the ordinary course, or unusual, or special, or uncommon" but that "need not be unique, or unprecedented, or very rare".[1]

• [9] In deciding whether I am satisfied that there are exceptional circumstances, I must consider:

a) Ms Davis's reasons for the delay;

b) any action taken by Ms Davis to dispute the dismissal;

c) prejudice to QPuzzles (including prejudice caused by the delay);

d) the merits of the application; and

e) fairness as between Ms Davis and other persons in a similar position.

• [10] Each of these matters must be considered in assessing whether there are exceptional circumstances. Before considering these matters, it is helpful to set out some background facts.

• [11] Much of the material filed by Ms Davis focused on matters that are not instructive when considering whether she should be granted an extension of time. Whilst I acknowledge the significance of all the material filed, only material that relates to Ms Davis's application being out of time has been traversed in this decision.

• [12] Ms Davis commenced casual employment with QPuzzles on 12 February 2024. On or about 5 April 2024, Ms Davis was offered and accepted a permanent part time role titled Customer Relations and Social Media.

• [13] In or about November 2024, Ms Davis was advised that the lease on her current Gold Coast property would end in early January 2025. Shortly after, Ms Davis communicated to QPuzzles that she had decided to move to Brisbane. On 16 November 2024, Ms Davis sent an email to Mr Dormer, in which she proposed a solution that she said would allow her to "continue contributing effectively and with the same dedication and commitment to QPuzzles and JDP Gallery, while addressing my immediate housing challenges".[2] The email went on to propose that she could continue to fulfil her Gold Coast based role, if she was able to work from home, and visit the factory once a month. QPuzzles were not willing to agree to this proposal.

• [14] Mr Dormer says that as the business' Christmas closedown was approaching, he and Ms Davis again discussed what she intended to do. Mr Dormer says that during these discussions, the parties explored the terms upon which Ms Davis's social media marketing business, Skylab Digital (Skylab) could take over the work that she had previously been doing. Skylab was already providing similar services to another of Mr Dormer and Mr Malouf's businesses.

• [15] Mr Dormer says that on or about 17 December 2024, Ms Davis confirmed that she was not prepared to travel from Brisbane to the Gold Coast and offered her resignation. The parties then continued their discussions about Skylab taking over the work she had been performing. Having formed the view that Ms Davis intended to resign, Mr Dormer says he set about preparing the figures for Ms Davis's termination pay. On 17 December 2024, Ms Davis sent an email to Mr Dormer and Mr Malouf raising a number of issues with the proposed termination payout information she had been provided.

• [16] Later that same day, Ms Davis sent a further email in which she sought QPuzzles' agreement to pay her annual leave entitlements as a salary sacrifice into her Superannuation. noting her view that "Accepting this payout in its current form places me at a financial disadvantage due to the higher marginal tax rate applied".[3]

• [17] Ms Davis's account of the discussion that occurred during 16 to 19 December 2024 is quite different. Ms Davis suggests that she experienced "a week of coercion and device" and that she was confronted with unfair dismissal "without prior notice or justification" and that the production of the payout figures was the point at which she was abruptly informed by QPuzzles that her employment was ending immediately.[4]

• [18] While noting the parties provided vastly differing evidence about their recollection of the events between 16 to 19 December 2024, for the purposes of this decision, it is not necessary for me to make any finding of fact in that regard. What is relevant to my considerations is that on 19 December 2024, Ms Davis provided QPuzzles with a letter of resignation, which read as follows:[5]

I am writing to formally resign from my position at QPuzzles, effective one week from today. This decision has been incredibly difficult, as my time with QPuzzles has been both rewarding and inspiring.

Unfortunately, due to the escalating rental market on the Gold Coast, I have found myself priced out of the area. Seeking an affordable and stable home has now forced me to move away from the Gold Coast, and the inability to accommodate a flexible work arrangement has made continuing in my current role unfeasible. A stable home life is a top priority for me at this time, and I understand the limitations the position presents in this regard.

Working for QPuzzles has been a fulfilling experience. The trust you placed in me and my work was instrumental in my achievements, as reflected in this year's report. I greatly appreciate your support and acknowledgment of my contributions during my time here.

I would like to express my sincere gratitude for the opportunity to be a part of QPuzzles. As this chapter comes to a close, I want to acknowledge the valuable relationships I have built during my time here and the contributions I have made toward QPuzzles' achievements. I am proud to have played a role in the company's success and growth.

I wish QPuzzles continued success and growth in the future.

That same day (QPuzzles' final day of trade before the Christmas break), QPuzzles paid Ms Davis her final pay including for all work up to and including the termination date, 1 weeks' pay in lieu of notice and her accrued annual leave. Noting the scope of this decision, it is sufficient to say that whilst the parties disagree as to whose initiative the employment came to an end, there is no dispute, that Ms Davis's employment ended on 19 December 2024.

• [19] Throughout January 2025, Ms Davis exchanged a series of emails with QPuzzles aimed at finalising the terms of a contractual agreement between QPuzzles and Skylab. Ultimately, the parties were unable to reach a satisfactory commercial arrangement and on 29 January 2025, QPuzzles advised Ms Davis that they would not be signing a contract for service with Skylab.[6] Ms Davis lodged her application that same day, some 41 days after her employment came to an end.

• [20] The Act does not specify what reasons might justify granting an extension, however previous decisions of the Commission have referred to an "acceptable" or "reasonable explanation" of the delay. The absence of an explanation for any part of the delay will usually weigh against an applicant when assessing whether there are exceptional circumstances, whereas a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all the circumstances must be considered.[7]

• [21] Noting Ms Davis's reasons for the delay, being:

1. misleading and coercive actions of QPuzzles;
2. the Christmas period;
3. illness and health challenges; and
4. the urgent need to secure alternative housing due to the expiration of her lease.

• [22] Each of these reasons is considered below.

• [23] In short summary, Ms Davis submits that the actions of QPuzzles leading up to and following her resignation caused confusion about her employment status and delayed her ability to recognise the need to lodge her claim.[8]

• [24] As I understand it, there are two elements to this argument, the first relates to the question of whether her dismissal was a result of her resignation or at the initiative of QPuzzles. As mentioned above, that is not a question that will be answered in this decision. I do however accept that it is relevant to consider her argument that she did not realise that she had been treated "unfairly" until later. This leads to the second element of this argument.

• [25] The second element of her first reason relates to discussions between the parties regarding Skylab taking over the work previously performed by Ms Davis. Ms Davis submits that between December 2024 and January 2025, following the termination meeting, QPuzzles repeatedly promised her ongoing work starting in January 2025 under a new business arrangement and to "Get in touch on the 13th".[9]

• [26] Ms Davis states that based on these assurances and believing that she had secured future employment with QPuzzles when they re-opened on 13 January 2025, she reluctantly left her employment as she could do nothing about her job or the termination. She says that it was agreed that she would provide a detailed business proposal in January 2025.

• [27] Much of Ms Davis's evidence concerns the contractual negotiations between the parties that occurred throughout January 2025. It was Ms Davis's evidence that despite her "attempts to support the agreement on their promise to start work in January 2025, they refused to sign the contract and instead attempted to force me into an unprotected email-based agreement that mirrored my previous employment".[10] She submits that by 23 January 2025, "it became clear to me that the employer's actions constituted constructive dismissal and sham contracting".[11]

• [28] Again, it is not necessary for me to make any findings of fact about these discussions, other than that they occurred, and that ultimately, they did not result in Skylab securing any work with QPuzzles.

• [29] QPuzzles submits that Ms Davis's submissions misrepresent what in fact occurred. They say they valued her skills, and did not wish for Ms Davis to resign at all. As such, they were genuine in their intention to commence discussions with Ms Davis regarding engaging her in the new year as a contractor to deliver social media related services.

• [30] QPuzzles argue that it was only after they refused to agree to the terms of Ms Davis's 'Social Media Marketing Service Agreement' that she filed her application, in which she asserted that she had not voluntarily resigned.

• [31] During cross-examination, several inconsistencies in Ms Davis's evidence were highlighted. QPuzzles suggested that Ms Davis had made several conflicting statements, drawing her attention to her statement that on 16 December 2024 she was informed by QPuzzles that her employment was ending immediately when she was provided a Xero payment print out of her payout.[12] She later says in her statement that "Initially, I did not understand that I had been dismissed."[13] In response, Ms Davis did note that she been working full time since 17 February 2025, with a long commute, and that she may have "overlooked some wording". However, Ms Thompson noted Ms Davis's email dated 18 December 2024 to Mr Stewart Perry, Ms Davis's priest, which states:

"It's been such a difficult day, but it's over, as they terminated my employment."

• [32] Ms Davis subsequently conceded during the hearing that she was aware of the dismissal by 19 December 2024. Additionally, it is noted that Mr Perry emailed Ms Davis on 18 December 2024 stating the following:`[14]

"It might be worth considering contacting Fair Work to see if you have a case for unfair dismissal."

• [33] Whilst I have not made any finding relating to whether Ms Davis's dismissal was or was not at the initiative of the employer, viewed objectively, it is clear from Ms Davis's communications regarding her final payout figures, her communication with Mr Perry, and ultimately her letter of resignation, that she understood that her employment had come to an end. Further, Ms Davis's actions, in sending multiple emails and varied contracts of service to QPuzzles throughout January 2025 indicate she understood that any further work for QPuzzles would be subject to QPuzzles and Skylab reaching agreement on suitable contractual terms.

• [34] It then follows that she must have understood that the securing of further work post ending of employment, whilst desired by both parties, was not assured. While I accept that the parties not reaching such an agreement would have been a disappointing outcome for Ms Davis, it was an outcome that was realistically foreseeable at the time her employment came to an end.

• [35] It is clear in Ms Davis's own words that she was aware that her employment had ended by 19 December 2024. As such, I do not accept that the alleged conduct by QPuzzles led Ms Davis to be confused regarding her employment status, to the extent it affected her ability to lodge her application in time.

• [36] Ms Davis argues that the Christmas period impacted her ability to seek legal advice, and lodge her application on time. Whilst I appreciate that she would have been unable to make any enquiries regarding lodgement of her application from 25 to 27 December 2024, she would have been able to contact the Commission either before or after those dates, noting that Ms Davis made enquiries with the Fair Work Ombudsman on 19 December 2024 but did not contact the Commission. Notwithstanding this, the Commission's website provides extensive material to assist applicants considering making an application, including explaining the 21-day time limit. Ms Davis would have been able to access this information during the Christmas period and could have lodged her application in-time in the 13 days that followed.

• [37] Ms Davis provided no evidence of having attempted to seek legal or other advice during this period, however I note that her submissions in this regard run contrary to her argument that it was only once QPuzzles refused to sign the contract with Skylab - in late January 2025 ‑ - that she realised that she had been "constructively dismissed", and relevantly noting in her submissions that it was "their refusal to sign a proper contract, combined with their attempts to misclassify me as an independent contractor, that left me with no real choice but to seek legal advice".[15] I have not been persuaded that the Christmas period represents a reasonable explanation for the delay.

• [38] Ms Davis submits between 27 December 2024 to 3 January 2025, she fell severely ill with influenza and was left bedridden and unable to attend to critical tasks such as pursuing legal remedies. During this period, Ms Davis says that she was operating under immense stress and anxiety, where "all survival mechanisms and coping strategies were required to manage these challenges".[16] Ms Davis says that she lives alone and could barely do anything due to high fevers and sickness, however during cross examination, Ms Davis stated that on 3 January 2025, though still unwell, she had applied for several house inspections which she attended on that day.

• [39] QPuzzles submits that Ms Davis has provided no contemporaneous medical evidence supporting that she was so ill that for the 6-day duration of her asserted illness she was unable to make an application.

• [40] I find it difficult to accept that Ms Davis had the capacity to both lodge applications for inspections as well as attend those inspections in person, but did not have the capacity to lodge her application in time. I appreciate that more may be required to complete a Commission application in comparison to a rental application, however Ms Davis still had six days to lodge in time from 3 January 2025.

• [41] Ms Davis also provided a letter from her psychologist in support of her application,[17] though it notes the challenges and distress Ms Davis had experienced, it does not particularise how this had prevented her from lodging her application in time noting everything else that she achieved within the relevant times i.e. finding new accommodation and organise moving. During the hearing, Ms Thompson also noted that despite the letter from Ms Davis's psychologist, she had the capacity to rent a truck in order to move house between 14 to 16 January 2025, in addition to vacating and cleaning her previous residence by 17 January 2025.

• [42] I also note that Ms Davis's arguments in this regard run contrary to her above arguments that it was not until later January 2025 that she decided to seek legal advice and subsequently file her application. That being the case, her illness in late December 2024, early January 2025 is of little consequence and at best would provide an explanation for only a short part of the delay.

The urgent need to secure alternative housing due to the expiration of her lease

• [43] Ms Davis argues that she was delayed in filing her application due to her urgent search for housing from 6 January to 10 January 2025. Ms Davis submits that upon recovering from her illness, she travelled extensively between the Gold Coast and Brisbane for property inspections and filled out as many applications as she could. Ms Davis says that delays were exacerbated by her landlord being on holiday and unable to provide her with a reference.

• [44] Ms Davis confirms that she secured alternative housing on 6 January 2025,[18] noting that she says in her email to Mr Perry on 7 January 2025:[19]

"I still have a lot to get back to and clear up, but one thing I know is I'm not going to be homeless."

• [45] I appreciate Ms Davis's concern regarding finding alternative housing, however by 7 January 2025, by her own words she was not at risk of becoming homeless. This means that Ms Davis still had two days from 7 January 2025 to lodge her application in time.

• [46] Having considered all of the evidence and circumstances of this matter, I find as follows:

• It was clear to Ms Davis that she had been dismissed on 19 December 2024.
• The parties agreed to explore options for Skylab to provide service to QPuzzles via a contract of service, but such a contract was not secured.
• Whilst Ms Davis was understandably disappointed, such an outcome would have been reasonably foreseeable at the time her employment came to an end, and as such, does not provide an explanation as to why she did not file her application in time.
• The Christmas period falling within the 21 days does not explain the delay.
• While Ms Davis's health and her search for housing may provide an explanation for some of the delay, they do not explain the entirety of the delay.

• [47] In addition to my findings in relation to each of Ms Davis's explanations for the delay, I have also considered their cumulative impact, and remain unpersuaded that they provide a reasonable explanation for the delay. This consideration weighs against an extension of time in this case.

• [48] Action taken by the employee to contest the dismissal, other than lodging a dismissal application, may favour granting an extension of time.[20]

• [49] It is unclear why Ms Davis submits that she made efforts to resolve the matter informally, referring to emails to QPuzzles that they refused to reply to, however these emails did not dispute the dismissal. Instead, it appears that Ms Davis did not dispute the dismissal at any time prior to 29 January 2025, but was focused on other matters such as finding alternative housing, moving into said housing, and negotiating a contract of service with QPuzzles. Ms Davis's conduct is not consistent with an individual who has made attempts to dispute their dismissal, particularly where she has argued that she was coerced to resign, as she has instead attempted to secure future work with QPuzzles rather than withdraw the alleged coerced resignation. This consideration weighs against an extension of time in this case.

• [50] Prejudice to the employer means unfair disadvantage to the employer that was caused by the delay in filing the application 'to a general presumption of prejudice.' A long delay gives rise 'to a general presumption of prejudice'.[21] I have not been convinced that a delay of 20 days demonstrates any unfair disadvantage to the employer. I therefore find this to be a neutral consideration.

• [51] As noted above, QPuzzles raised a second jurisdictional objection on the grounds that they believe that Ms Davis was not dismissed. If an extension of time were to be granted, this question would need to be resolved before the application could proceed.

• [52] I do note Ms Davis's submission on this point refers to the alleged constructive dismissal, sham contracting, workplace bullying and coercion. However, Ms Davis has not clearly demonstrated that the dismissal was a breach of the General Protections provisions of the Act. Consequently, there is insufficient evidence before me to make an assessment. Accordingly, I have regarded the merits to be a neutral consideration in this case.

Fairness as between the person and other persons in similar position

• [53] This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration in this case.

• [54] In summary, none of the considerations I need to consider weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case.

• [55] As there are no exceptional circumstances, no additional time can be allowed for Ms Davis to make her application. This means that Ms Davis is not entitled to apply for a general protection's application.

• [56] The application is dismissed. An order to that effect will be issued separately.

[1] Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [13].

[2] P.219 to 220 of the DCB - Annexure JD-01.

[4] P.9 of the DCB - Applicant Submissions.

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[8] P.9 of the DCB - Applicant Submissions.

[13] P.24 of the DCB - Applicant Witness Statement.

[15] P.12 of the DCB - Applicant Submissions.

[17] P.41 to 42 of the DCB - Clinical Psychologist Letter.

[18] P.48 of the DCB - Attachment AH - Rental approved.

[19] P.125 of the DCB - Stewart 5 - New Home Approved.

[20] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

[21] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556 (McHugh J).

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