Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application made outside of 21-day time limit - no exceptional circumstances present - extension of time not granted - unfair dismissal application dismissed.

• [1] This decision concerns an application made by Ms Nonny Bulle (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant, who was employed by Lovisa Pty Limited (the Respondent), alleges she was dismissed on 20 March 2025. The unfair dismissal application was lodged by the Applicant on 30 June 2025.

• [2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 394(2) of the Act. As the dismissal took effect on 20 March 2025, the period of 21 days ended at midnight on 10 April 2025. The application was therefore filed 81 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3) of the Act.

• [3] The application for an extension of time to file the unfair dismissal application was set down for determinative conference on 29 July 2025 in advance of which the parties filed material in accordance with directions issued. At the determinative conference, the Applicant appeared and gave evidence while the Respondent was represented by Mr Dan Trindade of Clayton Utz who was granted permission to appear on behalf of the Respondent pursuant to s 596(2) of the Act. Mr Trindade called Ms Nicole Wilson, Head of Content in the eCommerce - Global team, to give evidence for the Respondent.

• [4] The Applicant commenced casual employment as an Ecommerce Product Photographer in Melbourne with jewellery and accessories retailer Lovisa, on 13 July 2021 and states she regularly worked 15 hours per week.[1] She sustained a work-related injury in September 2023 for which a workers compensation claim was accepted, and she commenced a return-to-work program in March 2024 which involved a progressive increase in her hours and duties.[2] The Applicant confirmed during cross-examination that while she had returned to working 14 hours per week by the time of her dismissal, there were still some restrictions in place on the duties she was able to perform. The Applicant was dismissed on the grounds of redundancy with immediate effect on 20 March 2025 due to an organisational restructure.[3] At the time of her dismissal the Applicant states she was provided with a list of roles, but none were suitable based on her qualifications, duties and medical capacity.[4]

• [5] Ms Wilson confirmed the Applicant's evidence regarding the redundancy of her role, clarifying that there were in fact two roles made redundant at the time, that of the Applicant's role and the Digital Marketing Manager role.[5] The Applicant confirmed during cross-examination that she was aware that two roles were made redundant. Ms Wilson went on to state that she conducted the meeting with the Applicant on 20 March 2025 accompanied by People and Talent Advisor Gabby Zickar and communicated the redundancy of the Applicant's position to her. The Applicant was provided with a list of vacant roles[6] and asked to consider whether she wished to be considered for any of those roles. The Applicant requested and was provided with a job description for one of the vacant roles, being a HR position. The Applicant subsequently advised that none of the roles were suitable.[7]

• [6] The Applicant states that on 19 June 2025 she became aware that the Respondent had readvertised what appeared to be her former role in a private email[8] (Private Email Advertisement) sent to a university network. She also claims to have been told by a colleague that her former role had been readvertised privately via Instagram stories[9] (Instagram Advertisement) posted by current staff of the Respondent. She acknowledges that she did not see these posts herself at the time they were made. She further states that her former role was then readvertised publicly by the Respondent on LinkedIn[10] (the LinkedIn Advertisement) on 27 June 2025.[11]

• [7] The Applicant was cross-examined in relation to the delay in filing her application after she became aware of the advertisement on or about 19 June 2025. She explained that it took a few days for her to receive copies of the advertisements following which she sought advice, including from Jobwatch, before deciding to proceed with her unfair dismissal application on 30 June 2025. She confirmed that at the time of her dismissal, she accepted that her termination of employment was a genuine redundancy. It was only when she became aware of the advertisements for what appeared to be her former role that she developed concerns as to the genuineness of her redundancy.

• [8] Ms Wilson explained that the Respondent currently has two photography roles, the Photography Manager position held by Nicole Corbitt and a full time Photographer position held by Rachel Brown, both of which roles existed at the time of the Applicant's dismissal. Ms Wilson explained that when demand for photography is heavy the Respondent uses contract photographers to supplement in-house resources. On or about 15 April 2025, Ms Wilson states she discussed with Ms Corbitt that one of the contract photographers would not be available to provide services from 5 June to 5 July 2025. After a replacement contract photographer initially sourced by Ms Corbitt for this period became unavailable, Ms Wilson arranged for the Talent Acquisition team to advertise for a contract role. Ms Wilson acknowledges that the advertisements did not specify the contract period but says her intent was to cover the June/July absence of the contract photographer.[12] She also states that the Respondent has not replaced the Applicant's role since her dismissal.[13]

• [9] Ms Wilson, when cross examined on the advertisements, agreed that the Private Email Advertisement and Instagram Advertisements were placed during April 2025 and that both of those advertisements were for a freelance photographer while the LinkedIn Advertisement placed in June did not refer to the role being a freelance role. She clarified that the advertisements were for the same role, that of a freelance photographer, despite the LinkedIn Advertisement not referring to the role being freelance. She also confirmed that the role was initially advertised to cover the absence of the freelance photographer then regularly engaged by the Respondent. When further questioned, Ms Wilson confirmed that advertised role was not filled, remains open and will need to be progressed as the former freelance photographer used is no longer available to provided services.

• [10] During cross-examination, the Applicant agreed with the evidence of Ms Wilson regarding the two permanent photography roles that existed prior to her dismissal. She also agreed that the Respondent had during her employment with the Respondent engaged a regular freelance photographer to supplement in-house resources. The Applicant also agreed that she was aware the regular freelance photographer was away in June/July 2025 from following her on Instagram. She accepted that, if the 'freelance eCommerce Photographer role was to cover the absence of the regular freelance photographer, then the advertised role was different to the role she had held prior to her dismissal.

• [11] The Applicant cast doubt however on whether the advertised role was in fact intended to cover the absence of the regular freelance photographer. She referred to the fact that the LinkedIn Advertisement described the role as being 'ongoing' and will consistently involve 3 days per week with up to 5 days on offer in peak periods and that the role is stated to be based at the Respondent's Hawthorn headquarters. She accepted however that use of the term freelance where it appeared in the Instagram Advertisement and Private Email Advertisement indicates that the nature of the proposed engagement was that of an independent contractor arrangement rather than that of employment.

• [12] The Applicant also disputed the Respondent's motivation for her dismissal. She argued that the restrictions in terms of her hours of work and duties that arose from her work-related injury meant that the assessment of her performance, impacted as it was by her work restrictions, may have been the driver for the decision to make her redundant rather than the stated operational requirements. She also raised the timing of the decision to dismiss her 12 months after her return-to-work program commenced for which her workers compensation claim had been accepted. She agreed however when pressed that she could not support her suspicion as to the real motive for her dismissal with evidence. She also accepted that the matter of her injury, workers compensation claim and return to work arrangements were all matters fully known by her at the time of her dismissal and she had accepted at the time that her dismissal was a genuine redundancy. She explained this acceptance as being due to her having insufficient evidence to make an unfair dismissal application at the time of her dismissal despite her suspicions as to the Respondent's motive to dismiss her.

• [13] In challenging whether her dismissal was a genuine redundancy, the Applicant also questioned why the freelance role was not canvassed with her at the time of her redundancy given it was advertised shortly after her dismissal. She says this also raises doubt about whether the Respondent had met its obligation to identify suitable alternate roles and reinforces her suspicion that the motive to dismiss her was because of her workplace injury and consequent performance rather than genuine operational reasons.

• [14] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances.' Briefly, 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.[14] 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.[15]

• [15] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [16] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(b) whether the person first became aware of the dismissal after it had taken effect;

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

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

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

• [17] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.

• [18] As earlier stated, for the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 10 April 2025. The delay is the period commencing immediately after that time until 30 June 2025, although circumstances arising prior to that day may be relevant to the reason for the delay.[16]

• [19] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[17] An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay.[18]

• [20] The Applicant submits that the delay in filing her application is explained by her not becoming aware of the Respondent having advertised an eCommerce Photographer role until on or about 19 June 2025. In circumstances where the advertised role is contended by the Applicant to be similar to her former role and where it was advertised shortly after her dismissal on 20 March 2025, the Applicant submits that the delay in filing is reasonably explained. As to the further delay between 19 June and 30 June 2025, the Applicant submits she was not provided with copies of the relevant advertisements until approximately 21 June 2025 following which she sought advice as to whether she had a sufficient basis for making an unfair dismissal application. This she submits explains the further 11-day delay after she became aware of the advertisements.

• [21] The Applicant's contention regarding the filing delay turns on her contention that the advertised role was similar to the role she held prior to her dismissal. To the extent that the role advertised firstly in April 2025 and then in June 2025 was for an eCommerce Photographer, I would accept that the role may in isolation be seen as similar. That however is where the similarity ends. Based on the evidence of Ms Wilson and the clear wording of the first two advertisements, the role advertised was that of a freelance photographer, needed to cover the June/July 2025 period of unavailability of a contractor the Applicant agreed had been relied on by the Respondent during her employment. Ms Wilson's evidence was undermined somewhat by the LinkedIn advertisement which indicates the role was 'ongoing' and would require from 3 days up to 5 days per week. Ms Wilson clarified that the previous contractor used is now no longer available to provide freelance services.

• [22] I accept that the LinkedIn Advertisement does not refer to the role being freelance, although the two earlier advertisements do refer to it as such. Ms Wilson gave evidence that while she could not explain why the freelance description does not appear in the June 2025 LinkedIn Advertisement, it was in fact the same freelance role previously advertised in April 2025 and while the contractor vacancy has not been filled the need for it to be filled remains. She also confirmed that the Applicant's role had not been replaced.

• [23] There is no dispute that the Respondent engaged a freelance photographer on a regular basis to supplement in-house resources prior to the Applicant's dismissal. Nor is it contested that the previous freelance photographer took a period of leave in June/July 2025, a matter known of and accepted by the Applicant. In these circumstances I am satisfied that the advertised role was initially for a freelance photographer to cover the period of absence of the existing contractor in June/July 2025. While the June 2025 LinkedIn Advertisement suggests it is not for short-term coverage but for an on-going role I accept Ms Wilson's evidence that it is for the same role and that in any case the previous freelance photographer previously relied on by the Respondent is no longer available, thus necessitating a replacement. In any case the role being sourced by the Respondent is a freelance photographer and not a replacement of the role formerly held by the Applicant.

• [24] In circumstances where I am satisfied that the advertised eCommerce Photographer role is not the same role previously held by the Applicant, it follows that I am not satisfied that the Applicant has provided an acceptable explanation for the filing delay for the period up to 19 June 2025. The other matter raised by the Applicant, that of the reasons for her dismissal being attributed by her to her work-related injury rises no higher than speculation. In any case, all of those details were known to the Applicant at the time of her dismissal on 20 March 2025 and do not explain the filing delay. She made a forensic decision at the time of her dismissal to not file an application despite her suspicions as to the true motives for her dismissal. That does not tell in favour of exceptional circumstances.

• [25] If I am wrong in my conclusion that the Applicant has failed to provide a reasonable explanation for the delay up until 19 June 2025, I would find that she has failed to provide an acceptable explanation for the period of delay between 21 and 30 June 2025 for the reasons that follow. I accept the Applicant's evidence that after she became aware of the April 2025 advertisements on 19 June 2025, it took until 21 June 2025 to obtain copies of the relevant advertisements. She states that she then took time to seek advice and verify whether the circumstances of her redundancy constituted an unfair dismissal including. She stated in her Form F2 that as part of this process she contacted JobWatch.

• [26] There was a lack of detail provided in the Applicant's evidence about what specific steps she took to inform herself of her rights and/or to seek advice and when she obtained such advice. The lack of evidence on the specific steps taken by the Applicant including relevant dates provides a fragile basis to conclude that the further 9-day delay from 21 to 30 June 2025 was reasonable in the circumstances. I am consequently not persuaded that the Applicant has provided an acceptable explanation for the period of the further delay from 21 to 30 June 2025.

• [27] I am satisfied that the Applicant has failed to advance an acceptable explanation for any part of the delay in filing her application for an unfair dismissal remedy. In the alternative I have found that she has failed to advance an acceptable explanation for the delay from 21 to 30 June 2025. The absence of an acceptable explanation for the filing delay weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

• [28] It was not in dispute, and I find that the Applicant became aware of her dismissal on the same day that it took effect on 20 March 2025 and therefore had the benefit of the full period of 21 days within which to lodge her unfair dismissal application. This weighs against a finding of exceptional circumstances.

• [29] It is not apparent that the Applicant took any action to contest her dismissal after it took effect on 20 March 2025, other than lodging the Application. This weighs against a finding of exceptional circumstances.

• [30] The application was filed 81 days outside of the 21-day period. The Applicant contends that granting an extension of time would not prejudice the Respondent because the relevant decision makers and information related to her dismissal are still available. The Respondent contends it would suffer prejudice as the uncertainty of outcome of these proceedings would prevent it from proceeding to engage a freelance photographer in the intervening period until the matter is determined.

• [31] I accept in the circumstances that there may be some prejudice to the Respondent that would arise from potential uncertainty that may impact on its engagement of a freelance photographer. That said, I note that the Applicant's former role has not been replaced, and it is difficult to see how engagement of a freelance photographer would be impacted by these proceedings when the nature of the freelance engagement is intended to afford the Respondent a high degree of flexibility in managing the demand for the contractor's services. I consequently regard this criteria as a neutral consideration.

• [32] The Act requires me to take into account the merits of the application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[19] it said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

• [33] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case"[20] for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.

• [34]  The Applicant contends that her role was readvertised in April 2025 shortly after her redundancy in March 2025 and she was not offered the subsequently advertised freelance role, which casts doubt on whether her dismissal was in fact a genuine redundancy. She also refers to her workers compensation claim which she claims may have motivated the dismissal decision. The Applicant submits that these matters tell in favour of the merits of her case and consequently weigh in favour of a finding of exceptional circumstances. For its part, the Respondent relies on Ms Wilson's unchallenged evidence that the Applicant's former role has not been replaced and submits that the ongoing use of supplementary freelance photographers does not undermine the genuineness of the Applicant's redundancy. The Respondent further submits that the Applicant's submission that her dismissal was motivated by her workplace injury rises no higher than speculation.

• [35] It is evident to me that the merits of the Application are likely to turn on contested points of fact which would need to be tested if an extension of time were granted, and the matter were to proceed. It must however be said that the Applicant's case does not appear strong. That is in circumstances where there is no evidence to support her suspicion as to the real reasons for her dismissal and where the limited evidence before me establishes that her former role has not been replaced since her dismissal. That the Respondent has taken steps to engage a freelance photographer does not undermine the Respondent's prima facie defence that the Applicant was dismissed due to a genuine redundancy. In these circumstances the merits of the case do not tell in favour of an extension of time. I also note that if I were to grant an extension of time the further jurisdictional objection raised by the Respondent, that the Applicant's dismissal was a genuine redundancy, would remain to be dealt with.

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

• [36] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

• [37] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

• [38] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

• [39] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.

[1] Exhibit A1, Witness Statement of Nonny Bulle, at [1]-[2], Exhibit A5, Contract of Employment, dated 7 July 2021

[2] Exhibit A1, Witness Statement of Nonny Bulle, at [4]

[3] Exhibit A1, at [5]-[6], Exhibit A8, Notification of Termination of Employment

[4] Exhibit A1, at [6]-[7], Exhibit A9,Certificate of Capacity, dated 1 June 2025

[5] Exhibit R1, Witness Statement of Nicole Wilson, at [6b]

[6] Exhibit A7, Lovisa Support Centre Open Roles - 20 March 2025

[7] Exhibit R1, at [7]-[9], Exhibit A6, Position Description for role of People and Talent Coordinator

[8] Exhibit A4, Private Email advertising for freelance eCommerce Photographer

[9] Exhibit A3, Instagram Advertisement for freelance Ecom Photographer

[10] Exhibit A2. LinkedIn Advertisement for eCommerce Photographer

[11] Exhibit A1, at [8]-[10], Exhibits A2 & A3, Lovisa advertisements for eCommerce Photographer

[14] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[16] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

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

[19] Print PR3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[20] Kyvelos v Champion Socks Pty Ltd, Print T2421, 10 November 2000, at [14].

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