s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application out of time - initial filing in incorrect jurisdiction - application in incorrect jurisdiction filed 7 days out of time - further 7 day delay after notified of incorrect jurisdiction to file in correct jurisdiction - extension of time denied - application dismissed.

• [1] On 9 December 2024, Ms Olivia Wales (Ms Wales / the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging she was unfairly dismissed from her employment with Thejo Australia Pty Ltd (the Respondent).

• [2] The Respondent objected to the application as it said the Applicant's application was filed outside of the 21-day statutory timeframe. On 12 February 2025, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objection. A jurisdictional hearing was held on 7 March 2025.

• [3] Mr Ben Gottlieb, a Solicitor at Sparke Helmore Law was granted leave under s.596(2)(a) to appear on behalf of the Respondent, and the Applicant appeared on her own behalf.

• [4] The Applicant provided a statement, as did Ms Kelly Carradus, Corporate Services Manager at Thejo Australia for the Respondent. The Applicant was not required for cross examination.

• [5] The Applicant was notified of her dismissal via a letter on 4 November 2024, confirming her position was made redundant on the same day. That letter set out:

"Consequently, we confirm that your position is redundant, effective 4 November 2024.

As a result of this redundancy, you will be entitled to the following:

• $5,000 in respect of two weeks' pay in lieu of notice; ..."

• [6] The Applicant submitted initially that her application was filed in time as she had incorrectly initially applied to the Western Australia Industrial Relations Commission (WAIRC) within time on 1 December 2024. The Applicant relies on her confusion concerning the appropriate jurisdiction to file her application, and also that she is suffering from severe depression and anxiety in the period before and since her termination, including suicidal thoughts, and was also homeless for period of time.

• [7] The Applicant submitted that she had researched unfair dismissal claims and found results that said she had 28 days to apply. That is true of the WAIRC. She also submitted that she had counted her dismissal date as the end date of her notice period, being 2 weeks from 4 November 2024, being 18 November 2024.

• [8] On 2 December 2024, the WAIRC responded to the Applicant's application, noting that she appeared to have filed in the incorrect jurisdiction.

• [9] The Applicant then filed with the Commission on 9 December 2024, a period of seven days after receiving the advice from the WAIRC.

• [10] Firstly, I will address the Applicant's submission that the end of her employment was effective on 18 November 2024, rather than 4 November 2024 due to the payment of her notice period.

• [11] When considering whether payments made in lieu of notice affect the effective termination date, Wilcox CJ in Siagian v Sanel Pty Ltd[1] relevantly stated:

"It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase "payment in lieu of notice"; it accords with common sense. An employer who wishes to terminate an employee's services, and is prepared to pay out a period of notice without requiring the employee to work, will surely usually wish to end the relationship immediately."

• [12] In applying Wilcox CJ's finding, it is clear that the Respondent intended for the employment relationship to end on 4 November 2024. Therefore, in making her application to the Commission on 9 December 2024, the Applicant applied 14 days out of time.

• [13] In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under s.394(2) of the Act. This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.

• [14] In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when 'exceptional circumstances' are established, there remains discretion to grant or refuse an extension of time.[2] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

• [15] The Act does not define 'exceptional circumstances' per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[3] Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[4]

• [16] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:

"As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional"[5]

• [17] The Applicant submitted that the reason for the delay was twofold. Firstly, she submitted that she is suffering from severe depression and anxiety. Her evidence was that these conditions "cause the brain and body to operate on a level much lower than it normally can. Decision making, thinking, sleeping, managing circumstances are all affected." She submitted that this impairment directly contributed to her mistake in submitting the wrong form to the WAIRC.

• [18] The Applicant continued that the overwhelming stress, combined with the psychological toll of her experiences from the company's workplaces stress and bullying, significantly affected her ability to complete administrative tasks accurately and in a timely manner.

• [19] The Applicant contended that she should be granted an extension of time as her claim remains valid and warrants a fair review. She submitted that the delay was not due to negligence or lack of intent, but rather extraordinary circumstances beyond her control, and her grievance regarding workplace bullying and unfair dismissal deserves proper assessment on its substantive merits.

• [20] Secondly, that she was confused by the jurisdictions and the fact that both the WAIRC and the Commission have an unfair dismissal form called a Form F2. She submitted that her lack of knowledge of the statutory timeframe, her initial research which demonstrated she had 28 days to make her application, and making an application to the WAIRC led to the delay in filing in the Commission.

• [21] Her evidence was that she was struggling so hard that even the process of seeking legal advice was too overwhelming, so she did the best she could to resubmit the whole document again under these conditions. She says she was genuinely trying in good faith to successfully rectify the mistake she had made in the fastest manner that she could under her mental health condition and circumstances.

• [22] In addition, the Applicant submitted that she was homeless at the time, so it was extremely hard as she had no power for her computer so had to go to cafes and caravan parks to charge the laptop, do washing etc. She submitted that everything was extremely difficult compared to normal circumstances where you have a clear mind and the facilities and help to guide you.

• [23] I asked the Applicant about her evidence that she had experienced a period of being homeless. The Applicant said she has been homeless from May 2024 to the date of the hearing and has been sleeping in the rooftop tent on her car, and in the winter, she lived in a caravan which she parked in a storage yard. The Applicant said during the period from her termination to the date of filing the application, she was living in the rooftop tent.

• [24] The Applicant provided medical documents including a Patient Heath Summary, medical certificates and evidence of Telehealth consultations and medication prescribed to her.

• [25] Her evidence was that the day after she received the email from the WAIRC, she started to draft the new Form 2 FWC application. This would have been on 3 December 2024. The Applicant said she went through everything again from scratch. The Applicant said she is quite a diligent person and wanted everything to be thorough and correct. The Applicant said she did her best to make the best submission she could in the short timeframe.

• [26] The Respondent submitted that it was of the view that the Applicant elected to lodge her claim in the WAIRC and not the Commission on 1 December 2024, despite claiming that she had prepared her Commission claim prior to her WAIRC claim, due to the more lenient 28-day timeframe that the WAIRC provided.

• [27] Nulty established that ignorance of the timeframe for lodgement is not an exceptional circumstance.[6] As such, the Applicant's ignorance of the Commission's timeframe for lodgement is not a sufficient reason to grant an extension of time to file an application.

• [28] Further, both the Commission's website and the WAIRC's website outline which jurisdictions they service on easy to locate pages. The WAIRC information is set out on a page called "About Us" and there is a further page about Unfair Dismissal applications specifically.

• [29] The Commission has similar pages, including one titled "Who is protected from unfair dismissal" and information on Timeframe for Lodgement, stating that the period is 21 days.

• [30] Turning now to the delay due to filing in the incorrect jurisdiction, I note the Full Bench Decision of the Australian Industrial Relations Commission in Poulton v Rail Infrastructure Corporation, which stated that ultimately, each case where there has been an application made in another jurisdiction, turns on its own facts.[7]

• [31] Relevantly, the Full Bench in Snyder v Helana College Council Inc[8] dealt with a case with similar facts to Ms Wales' case. At first instance,[9] Commissioner Gregory determined not to grant an extension to file an unfair dismissal application where the Applicant had initially filed in the WAIRC before filing with the Commission. Ultimately, the Full Bench upheld the decision not to grant an extension of time to file the application due to:
  • The Applicant being on notice from their employer of the correct jurisdiction after filing in the WAIRC; and
  • The Applicant receiving legal advice confirming that the WAIRC was not the correct jurisdiction; and
  • The Applicant continuing the application in the WAIRC for a further 10 days before making an application to the Commission.

• [32] Commissioner Gregory concluded in the original decision:

"...I am satisfied in response that it would have been prudent, and perhaps expected, that Mr Snyder would have made application to the Federal Commission as soon as he became aware that the College was taking issue with his ability to pursue the application in the WAIRC..."[10]

...In conclusion, I am not satisfied that "exceptional circumstances" exist to warrant an extension of time being granted to Mr Snyder in which to make application. It is acknowledged that he made application to the WAIRC on the basis of a mistaken belief that it was the appropriate jurisdiction in which to pursue his unfair dismissal claim. However, I am also satisfied that he should have been alerted to the fact he may have made application in the wrong jurisdiction when the jurisdictional objection was made to his application by the College on 9 March of this year...."[11]

• [33] In the present case, the Applicant was notified by the WAIRC that she had filed in the incorrect jurisdiction on 2 December 2024, one day after making her application. She took a further 7 days to file with the Commission, filing on 9 December 2024 at 2:47pm AWST, a total of 14 days out of time.

• [34] The Respondent also submitted that the Applicant has not provided any explanation or information regarding the delay between 2 December 2024 and 9 December 2024 when she was notified by the WAIRC that she was likely in the incorrect jurisdiction, to when she filed with the Commission. The extent of her submission was that the additional delay was due to her mental health conditions.

• [35] The Applicant drew parallels with the case of Palmer v RCR Engineering Pty Ltd[12] where the Applicant in that case had filed in the incorrect jurisdiction but within the relevant time period and took immediate action once notified of this, to file in the correct jurisdiction within 3 days.

• [36] Palmer can be distinguished from the current facts for the following reasons. Firstly, Ms Wales did not submit her application to the WAIRC within the 21-day time period. Her application, had it been lodged with the Commission in the first instance, would still have been 7 days out of time. Further, I do not consider that taking a further 7 days after being notified of the error, to be 'immediate' action.

• [37] In making this determination, I note that the Applicant had clearly put a significant amount of time and effort into gathering the material she submitted with her WAIRC application. As the effort had already been expended, I do not consider that 7 days is a reasonably 'immediate' period for her to have transferred that information into the Commission's F2 application and submitted it. I take note of the Applicant's submission that her mental health condition means that it takes her longer to complete tasks, however I do not consider a further 7 days in the circumstances is warranted, particularly without specific medical advice from the Applicant's treating doctors about her specific incapacity during the relevant period.

• [38] The Applicant described herself as being homeless, and that her living arrangements were either in a caravan during winter, or in her rooftop tent on her car in the warmer months, and this had been the case since May 2024. The Respondent's Form F3 response stated the Applicant annual income was $130,000 gross per year, or $2,500 per week and the Applicant did not dispute this. It would be doubtful that these living arrangements would of themselves have prevented the Applicant from being able to file an application within time. In any event despite that issue, she was able to file the application in the WAIRC within the timeframe she incorrectly understood to be 28 days, and I am inclined to the view that it would have been filed within 21 days had the Applicant understood that was the time statutory time limit.

• [39] The Applicant referred to the case of Roberts v Westech IT Solutions Pty Ltd[13] where an extension of time was granted due to extenuating mental health circumstances. In Roberts, the Applicant demonstrated that he had attempted to take action prior to lodging the form by making several calls to the Commission help line, and being redirected to the Fair Work Ombudsman, and had a letter from his treating doctor confirming his condition. Senior Deputy President O'Callaghan considered that these factors, in combination were sufficient to warrant the granting of an extension of time where the application was lodged 22 days out of time.

• [40] The most recent medical information the Applicant has submitted is a medical certificate from 23 October 2024 stating simply that she is "suffering from depression" and screenshots to show that she had renewed her prescription for Fluoxetine (Sandoz) on 11 November 2024 and 10 February 2025. There is other medical evidence to show that she was accessing mental health support up to and including October 2024, however, there has been nothing more contemporaneous than that put before me to support the Applicant's case, and nothing specifically directed to her capacity in the period from the application was required to be filed and when it was filed. The Applicant submitted that she was in shock at the time of being advised about the redundancy and said she was suffering from depression and anxiety and taking medication for this and it was ongoing.

• [41] When taken together, I consider that the reasons for the delay based on the particular facts of this case, being the confusion regarding the correct jurisdiction to file the application, and the Applicant's mental state, are insufficient to explain the 14-day delay.

• [42] Even if I were to accept that the first 7 days of delay could be accepted as justifiable on account of the confusion over the correct jurisdiction to file, it is apparent the Applicant was able to coherently articulate and file the application in the WAIRC despite what she has submitted about her mental capacity at that time. In the circumstances the further delay of another 7 days after the communication from the WAIRC, cannot be adequately explained. This tells against the granting of an extension of time.

• [43] The Applicant was aware of the dismissal on the date it took effect. This factor is neutral.

• [44] The Respondent submitted that there is no evidence that the Applicant took any steps to dispute the termination of her employment prior to lodging the unfair dismissal claims.

• [45] The Applicant did not make any submissions to suggest that she took other action to dispute the dismissal prior to preparing and lodging an application with the WAIRC and then the Commission.

• [47] The Respondent submitted that it should not lightly be put to the cost and inconvenience of defending an application that was brought out of time and in circumstances where the Applicant has not outlined any substantial grounds nor provided supporting evidence in relation to the same, to demonstrate exceptional circumstances.

• [48] The Applicant did not make any relevant submissions on this element.

• [50] In Telstra-Network Technology Group v Kornicki,[14] the Full Bench of the Australian Industrial Relations Commission said, in respect to the merits of an application:

"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."

• [51] Evidence on the merits is rarely called at an extension of time hearing and was not called in this case. The Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.'[15] The merits of the application more generally would need to be scrutinised and would include consideration of the circumstances of the dismissal, including whether the Applicant's dismissal was a case of genuine redundancy. If an extension of time were granted and the matter proceeded this would need to be examined.

• [52] I note that the Applicant has made several references in her application to subject matter relevant to the general protections regime, which is not relevant to the current application before me, being an unfair dismissal application. She has also provided copious information on how she believes the redundancy process was unfair, and not genuine.

• [53] The Respondent submitted that the termination of the Applicant's employment was not 'harsh, unjust or unreasonable' as: there was a reasonable and valid basis for the decision to terminate the Applicant's employment (relevantly, a genuine redundancy), and the process followed by the Respondent in implementing the redundancy decision was fair, reasonable and appropriate in the circumstances.

• [54] I consider the merits to be a neutral factor which would need to be tested at a substantive hearing if an extension of time were granted.

Fairness between the person and other persons in a similar position

• [55] There was no evidence that there was another person in a similar position to that of the Applicant and this is a neutral matter.

• [56] I have weighed each of the matters I am required to take into account and have determined that there are not exceptional circumstances in this case justifying an extension of time of 14 days. On that basis the application is dismissed.

An order dismissing the application will be issued separately and concurrently with this decision.

[1] [1994] IRCA 1; (1994) 122 ALR 333, 355.

[2] [2011] FWAFB 975; (2011) 203 IR 1, 6 [15].

[5] [2018] FWCFB 901; (2018) 273 IR 156, 165 [38].

[7] PR966972, AIRCFB, Watson SDP, Hamberger C, Richards C, 22 December 2005, [42].

[8] [2018] FWCFB 4734.

[9] Snyder v Helena College Council, Inc. T/A Helena College [2018] FWC 4432.

[10] Snyder v Helena College Council, Inc. T/A Helena College [2018] FWC 4432, [41].

[12] [2009] FWA 1431.

[13] [2014] FWC 4226.

[14] (1997) 140 IR 1.

[15] Kyvelos v Champion Socks Pty Ltd, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

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