• [6] The Redundancy Letter set out, amongst other things, the following:

Separation of your employment by reason of redundancy

The purpose of this letter is to confirm the outcome of a recent review by MGN Civil of its operational requirements for the new Inner Harbour Project at Port Hedland, with those on the Lumsden causeway project, and what this means for you.

The letter follows on from conversations you have had with Mark Hodgkinson, Project Manager, and myself, Peter Jager, Human Resources about the roster change for the new inner harbour project. Unfortunately, we could not agree with you the change or find any other alternatives for the safety role on the new Inner Harbour Project.

As a result of the need to change roster from your current 12 days on 9 days off to 14 days on 7 days off due to different project access restrictions inside a working port facility, the position of HSE Advisor and Site Administrator is to be made redundant from the Lumsden Causeway project.

Regrettably, this means your employment will terminate on 22 August 2025.

This decision is not a reflection on your performance but rather an operational change which is necessary to successfully complete the new construction contract which requires us to maintain the clients need to ship material 24 hr a day 7 days a week at its Port facility.

• [7] On 22 August 2025, by email time stamped 11:23AM, Jager informed the Applicant:

With the completion of the Lumsden causeway project imminent and different conditions set for the new Inner Harbour Project in Port Hedland we provide this separation letter to you as we were unable to agree the necessary changes with you to facilitate the resourcing of the new project to ensure its success.

I apologise for not supplying it yesterday whilst onsite.

As per our telephone conversation would you please let me know the belongings you have remaining in Port Hedland, the address to send them to, and the date of your return to Australia so we can send them upon your return from holidays (that way they don't sit undelivered or outside your home for the duration of your holidays).

• [8] By email time stamped 11:37AM (or 9:37:27AM) and dated 22 August 2025, the Applicant emailed Jager copying in Hodgkinson and Schweitzer:

As discussed over the phone this is not the conversation I had with Mark. This week I discussed with him a proposed roster cycle starting 21st September accepting that I would now be on a 2:1 roster however that if possible could I be on Teina's current cycle as this would allow me to see my partner on weeks off due to his current roster.

Can you clarify this please with him, as I don't believe the full conversation has been captured on his end as I did agree to the changes required for the new project.

• [9] On 22 August 2025 time stamped 03:29, Hodgkinson sent an email to Jager copying in the Applicant in which he stated:

To Clarify [sic] the discussion Orla did agree to the 2&1 roster flying in on Sunday and leaving Sunday only with taking Teina roster swings.

This stipulation cannot be accommodated so the agreement in my view was that the 2&1 roster had not been agreed to and no agreement was reached or agreed to.

I sent emails out prior to switch rosters already to make sure that either Teina or Orla was onsite full time, and this was already actioned and performed with project needs and project cover met and this cannot be changed.

If the above cannot be agreed to by Orla that she sticks to her current roster, then the redundancy process will continue.

Also to clarify I also said that at times that they [sic] may be a chance to fly out early depending on the project needs, but this was a broad discussion as they may be times that personnel reasons and project needs which we cannot work due to the project client's schedule and tidal work and this was said to all the staff.

• [10] The Applicant appears to have responded to the abovementioned message on 22 August 2025 by email time stamped 03:41, in the following terms:

I'm not keen on multiple emails back and forth however I won't accept statements that are untrue.

The conversation between Mark and I this week was approached in a very light hearted manner and I did not say this change would "only" work for me if I could take Teina's roster.

I understand the projects [sic] requirements and if this could have been accommodated that would be greatly appreciated considering personal circumstances. Mark agreed in conversation that this wouldn't be an issue and was willing to accommodate return on the 21st September and a rolling 2:1 roster from then on.

I am confused as to how this situation has come about considering the nature of the conversation this week in the office and Mark asking me as to when I would be coming back from annual leave.

• [11] By email dated 22 August 2025 time stamped 1:11PM or 04:14, Jager emailed the Applicant and stated the following:

As per conversation, the roster for the new project for yourself couldn't commence on 21 September as this is Teina's first day of his roster and overlaps resources. So 2/1 roster from 21 September 2025 cannot apply.

As you requested on the telephone, your roster after returning from holidays would be 2 and 1 from Sunday 28 September to Sunday 12 October. The week commencing 21 September is your scheduled R&R week from Lumsden and same 2/1 schedule would still apply on the new project.

Yes, I agree that this is unfortunate and should have been sorted yesterday prior to your leave, but with your leave being taken we need to finalise the arrangements prior to your return.

Please give me a call and let me know if this is agreeable or the redundancy will continue to apply.

• [12] Jager followed up from his email dated 22 August 2025, with an email to the Applicant dated 25 August 2025, time stamped 3:49PM. In that email he advised the Applicant that since he had not heard from the Applicant since his call and email on 22 August 2025 confirming the required roster, 'we are continuing with the redundancy as previously supplied by myself and will process your final payment tomorrow.'

• [13] It is well-established that a termination of employment takes effect when it has been communicated to the employee. In Ayub v NSW Trains, the Full Bench considered that a dismissal without notice is to be interpreted on the basis that the dismissal cannot take effect for the purposes of Part 3-2 of the Act, until the employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.[4]

• [14] In this case, the issue relates to the time at which the dismissal was communicated and then the date or time at which that dismissal took effect.

• [15] The principles associated with the giving of notice of termination of a contract of employment have been summarised in Williams v FT Workforce Pty Ltd & CPB Contractors Pty Limited & DT Infrastructure[5] in the following terms:

[50] As was said in Fathalla v Gallawah Pty Ltd (Fathallah),[6] the common law principles applicable to the termination of the employment contract with respect to 'notice' are equally applicable to the termination of the employment relationship.[7] At common law, termination of the contract is commonly effected by the giving of notice and the effluxion of the period of notice.[8] There is a requirement for such a notice to be 'valid.' To be valid, notice must be in accordance with the terms of the contract[9] and must be sufficiently certain in that it must specify, or make it possible to ascertain, the time when the termination is to take effect.[10] Notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties.[11]

• [16] The Redundancy Letter unequivocally communicated to the Applicant that the Applicant's employment with the Respondent would terminate on 22 August 2025. In addition, Jager's email dated 22 August 2025 time stamped 11:23AM further acknowledged that the Redundancy Letter was a separation letter and addressed the return to the Applicant of her property from site.

• [17] Whilst communications passed between the parties over the course of 22 August 2025 seemingly after the Applicant's receipt of the Redundancy Letter, and the subject matter of those communications was whether the Applicant would acquiesce to the roster for the new project, I am of the view that the correspondence did not indicate a change in the date that the dismissal took effect for the following reasons.

• [18] Jager in his email to the Applicant dated 22 August 2025 time stamped 1:11PM or 04:14, referred to a request that the Applicant call him if the roster arrangement was agreeable and, effectively, if she did not, the redundancy would continue to apply. Similarly, in the email between Hodgkinson to Jager, copying the Applicant, dated 22 August 2025 time stamped 03:29, Hodgkinson expressed that '[i]f the above cannot be agreed to by Orla that she sticks to her current roster, then the redundancy process will continue'. The Applicant appears to rely upon these communications and the email chain of 22 August 2025 to support her contention that her dismissal took effect on 25 August 2025.

• [19] However, I do not consider that the Respondent's communications to the Applicant via email during the course of 22 August 2025 altered the date that the Applicant's dismissal took effect. Whilst it provided an opportunity for the Applicant to agree to the Respondent's roster arrangement, it remained the case that the dismissal took effect on 22 August 2025 unless the Applicant confirmed by 25 August 2025 that she accepted the Respondent's roster arrangements. The Applicant did not confirm her acceptance within that period. Furthermore, the Applicant had at least a reasonable opportunity to find out that she had been dismissed on 22 August 2025. This was evident from the fact that the Redundancy Letter had been sent by Jager to the same email address that the Applicant had used when communicating with Jager and other employees of the Respondent, on 22 August 2025.

• [20] It follows that I find that the Applicant's dismissal took effect as of 22 August 2025.

• [21] Having found that the Applicant's dismissal took effect on 22 August 2025, her application was made one day late. As observed, s 366(1)(a) of the Act requires the application to have been made within 21 days of the dismissal taking effect and s 366(1)(b) allows for the extension of the period in which the application under s 365 must be made. It has been said that proceedings not commenced in time should not be entertained.[12] However, under s 366(1)(b) and (2) of the Act, the Commission has the power to extend the time within which an application for a general protections dismissal dispute can be made.

• [22] In Tamu v Australia for UNHCR,[13] a Full Bench of the Commission summarised the principles relevant to applications of this kind:

[16] Section 366(1) provides 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 under section 366(2). The 21 day period prescribed in section 366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.

[17] Section 366(2) of the Act sets out the circumstances in which the Commission may grant an extension of time as follows:

"(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

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

(e) fairness as between the person and other persons in a like position."

[18] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension. A decision whether to extend time under section 366(2) involves the exercise of a discretion.

[19] The meaning of "exceptional circumstances" in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd,[14] as follows:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance."

[20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.'

• [23] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd ('Stogiannidis'),[15] a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers,[16] which had concluded that for 'exceptional circumstances' to be established, an applicant must provide reasons for the whole of the period of delay. In Stogiannidis, the Full Bench expressed:

[38] 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.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time 'needs to provide a credible explanation for the entire period', it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.

• [24] Notwithstanding that directions were issued to the parties that required them to address the contentious issues of the dismissal date and the extension of time, the Applicant's materials essentially failed to address the factors under s 366(2) of the Act.

• [25] Therefore, at the commencement of the hearing, the parties were referred to s 366(2) and invited to make any further submissions in relation to the question of whether there were 'exceptional circumstances' by reference to those factors at paragraph [22] of this decision. Each of these factors are considered below and were outlined to the parties before the hearing.

• [26] In Pottenger v Department of Caffeine, it was observed that the Act does not specify what reason for delay might tell in favour of granting an extension,[17] however, decisions of the Commission have referred to an acceptable,[18] or a reasonable explanation.[19]

• [27] The absence of an explanation for any part of the delay may weigh against an applicant in such an assessment.[20] Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, though, it is a question of degree and insight.[21]

• [28] Based on the evidence and submissions before me, the period of the delay commenced from 12 September 2025 and concluded on the filing of the Applicant's application. Whilst the necessity to grapple with the factors in s 366(2) of the Act was emphasised to the Applicant on several occasions, her submissions in this respect were limited. Those submissions included that the Applicant was travelling from Australia to Ireland during the period of 23-25 August 2025 with no phone coverage, and that she was 'technically' on annual leave from 23 August 2025 onwards for three weeks. The Applicant therefore submits that taking into account the lack of phone coverage, the time difference during this period, that in her view the redundancy was not confirmed until 25 August 2025, and that she believed the application was lodged within the statutory time frame, consideration should be given to these factors.

• [29] First, it is relevant to note that the fact that the application was lodged only one day late does not take the matter further. Whether the delay is one day or one year, there must be an acceptable explanation for the delay. Whilst the length of the delay may be relevant to the question of prejudice, it does not provide an explanation, nor does it render the circumstances exceptional.

• [30] Second, regarding the period of delay, I am not satisfied that the Applicant has identified a reason or reasons that provide a plausible explanation for the period of the delay or part of the delay. Whilst the Applicant purports to have been overseas and in transit during the period of 23-25 August 2025, it is unclear as to why the application was unable to be lodged by the Applicant within the statutory period. Online applications are accommodated on the Fair Work Commission website, and there was no suggestion that the website was unable to be accessed from overseas. In addition, 'technically' being on annual leave does not constitute a plausible reason for delay.

• [31] On balance, and in the circumstances of this particular case, I find the reason for the delay is not an acceptable one. This weighs against a finding of there being exceptional circumstances.

• [32] By email time stamped 11:37AM (or 9:37:27AM) and dated 22 August 2025, the Applicant emailed Jager copying in Hodgkinson and Schweitzer and sought clarification regarding a discussion held regarding rostering arrangements. The Applicant sent a further email on 22 August 2025 time stamped 03:41 that detailed her confusion about the dismissal and the issue regarding rostering arrangements.

• [33] In the circumstances I consider that the Applicant took action to dispute her dismissal by sending the aforementioned emails and it therefore follows that this factor weighs toward a finding of exceptional circumstances.

• [34] A relevant prejudice is one that the Respondent would not have suffered, had the application been made within 21 days of the dismissal taking effect. The period of the delay is one day and therefore it is not the case that prejudice to the Respondent arises. However, the mere absence of prejudice is not itself a factor that would warrant the grant of an extension of time.[22] In the present case, I consider this to be a neutral factor.

• [35] In Telstra-Network Technology Group v Kornicki, the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth).[23] The Full Bench 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.[24]

• [36] In respect to the merits of the application, the Applicant identified the following in her application:

After being issued the redundancy, I was later contacted by HR who proposed an alternative roster beginning 28 September 2025. I confirmed that I was willing to work on this arrangement in conversation with the project manager. I was given an ultimatum once the redundancy letter was issued with no former consultation.

Why I believe the dismissal was unlawful / adverse action: The dismissal was not a genuine redundancy because:

The company continued to require someone to perform my role.

I had accepted the roster arrangement, and the employer's claim that I refused it is inaccurate.

I was willing and able to work, and the decision to dismiss me was based on incorrect information. Therefore, I believe I was unfairly dismissed and that the redundancy was applied improperly.

• [37] It is evident that the Applicant was not protected from unfair dismissal and has sought recourse by making an application under s 365 of the Act. In doing so, the Applicant has not adequately identified the contravention of the general protections provisions. It is well-settled that evidence on the merits is rarely called at an extension of time hearing. As a result, 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 make her or his application.[25] However, in this case the application under s 365 appears misconceived. I consider that the Applicant has not established that the substantive application was not without merit and therefore this factor weighs against granting an extension of time.

3.7 Fairness as between the applicant and other persons in a similar position

• [38] Neither Applicant nor Respondent drew my attention to any persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. I have considered this to be a neutral consideration in the present matter.

• [39] The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

• [40] Having regard to all of the matters that I am required to take into account under s 366(2) of the Act, I am not satisfied that the requisite exceptional circumstances exist. There are, in this case, factors which are neutral - weighing neither for nor against a finding of exceptional circumstances, two that weigh against and one that weighs in favour of an extension of time. However, when all the factors are considered, on balance, I am unable to find that there are exceptional circumstances.

• [41] It is further noted that the Applicant had made her application against MGN Civil Pty Ltd. However, the Respondent identified that this was the incorrect name of the employer and accordingly, the parties consented to a change in the name of the employer to MGN Corporate Services Pty Ltd. I therefore permitted an amendment to the name of the Respondent under s 586 of the Act.

[1] Fair Work Act 2009 (Cth) s 366(1)(a).

[2] Ibid s 366(1)(b).

[3] PR793470.

[4] [2016] FWCFB 5500, [48].

[5] [2023] FWC 3404.

[6] [2023] FWC 2542 (Fathalla).

[7] Ayub v NSW Trains [2016] FWCFB 5500; (2016) 262 IR 60, 68-9 [24] (Ayub). In the case of a casual employee, see Barrett v Nunawading Swimming Club Inc [2021] FWC 1301, [24].

[8] Birrell v Australian National Airlines Commission [1984] FCA 378; (1984) 5 FCR 447, 457.

[9] Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435, 454, 469; Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 427; Visscher v Giudice (2009) 187 CLR 96, 109-10 [53].

[10] G J McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78, 79; Burton Group Ltd v Smith [1977] IRLR 351, 354 cited in Fardell v Coates Hire Operations Pty Ltd [2010] NSWSC 346; (2010) 201 IR 64 (Fardell).

[11] Fardell (n 66) [as quoted] 85 [82] and the cases cited therein; Ayub (n 63) [as quoted, (n 4) of this decision] 65-9 [11]- [24]. See also, Koutalis v Pollett [2015] FCA 1165; (2015) 235 FCR 370, 379 [43]; Canberra Urology Pty Ltd v Lancaster [2021] FWCFB 1704, [30].

[12] Nulty v Blue Star Print Group Pty Ltd [2010] FWA 6989, [20], citing Lucic v Nolan [1982] FCA 217; (1982) 45 ALR 411, 416.

[13] [2019] FWCFB 2384.

[14] [2011] FWAFB 975.

[15] [2018] FWCFB 901 ('Stogiannidis').

[16] [2010] FWAFB 7251.

[17] [2018] FWC 3403, [31].

[18] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9].

[19] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

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

[23] (1997) 140 IR 1.

[25] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Gay C, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

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