Fair Work Act 2009

s.365 - General protections

Application to deal with a general protections dismissal dispute - late application - whether extension of time should be allowed

• [1] Ms Rachael Tickner was most recently employed by Queensland Railways Institute Inc (QRI) from 29 August 2022 until 27 June 2024. On 7 April 2025, Ms Tickner applied for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act). Ms Tickner alleges that she was dismissed by QRI in contravention of the general protections on discriminatory grounds and in connection with her extended period of absence for medical reasons. QRI objects to the application because it is filed out of time. The application is 263 days late.

• [2] This decision is about whether additional time can and should be allowed for the application to be made. For the reasons that follow, I am not satisfied that there are exceptional circumstances of relevance to the late filing of the application. The application will be dismissed.

• [3] An application under s.365 of the Act must usually be filed within 21 days of dismissal. The Commission can extend the filing period if there are exceptional circumstances (s.366(1)(b)) after taking into account the following matters set out in s.366(2):

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

(a) the reason for the delay; and

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

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

(d) the merits of the application; and

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

• [4] These are considered in turn as they relate to Ms Tickner's application.

• [5] Reason for delay: Ms Tickner's employment ended by reason of redundancy on 27 June 2024. The 21-day period to apply to the Commission under s.365 ended on 18 July 2024. The reasons given for delay in filing the application are described as related to her disabilities and impairments; the stress and emotional turmoil of redundancy; the traumatic loss of an ectopic pregnancy; and advice from WorkCover that she should apply to the Fair Work Commission. Ms Tickner says she tried without success to arrange a meeting with QRI to resolve the dispute. She also says she became aware of new information of relevance to her claim after the 21‑day filing period had expired, and after QRI's annual report was published. Although no date is provided, Ms Tickner seems to have been aware of the annual report by 15 January 2025.

• [6] The medical evidence provided by Ms Tickner speaks to long term mental health conditions pre-dating both the dismissal and her application to the Commission. It confirms pregnancy loss and a significant grief reaction to that event in or about May 2023. Personal circumstances experienced after filing the application, including her caring responsibilities, appear to have added to this burden but are not relevant to the delay.

• [7] A certificate of unfitness for work is provided for the period from 6 June 2024 to 17 July 2024. Although it goes some way to explaining the failure to apply within the 21-day filing period, it does not address Ms Tickner's capacity to apply to the Commission at any time after that period expired on 18 July 2024. A medical certificate dated 20 February 2025 indicates that Ms Tickner had returned to work (presumably for a different employer) for a short period from 13 January 2025 to 12 February 2025 before ceasing work again.

• [8] On the other hand, there is evidence of capacity to dispute the dismissal and to make claims in the relevant period. On 27 June 2024 (the day of dismissal), Ms Tickner wrote to QRI expressing her concerns and seeking additional payment in connection with the redundancy. On 2 July 2024, Ms Tickner made a workers' compensation claim. On 16 January 2025, Ms Tickner foreshadowed to QRI that she would make a human rights/discrimination claim with the relevant government body. There is no explanation for why no such action was taken between 15 January 2025 and 7 April 2025 when the application was made. At its highest, the evidence in support of disability, impairment, stress and emotional turmoil contributing to the delay explains only part of the delay, and not very well.

• [9] The loss of an unborn child in traumatic circumstances is plainly an exceptional circumstance, but I am not satisfied that it was a reason for the delay in filing the application. It occurred more than 12 months before the dismissal, and almost 2 years before the application was made. In the meantime, Ms Tickner was able to correspond with QRI periodically and to participate in the process of making a workers' compensation claim.

• [10] Unsuccessful efforts to meet with a former employer after dismissal are also no reason to delay making an application to the Commission, particularly where time is of the essence because there is a statutory filing period. There is no evidence of any attempt to file the application in time, even though a dispute arose about the redundancy straight away.

• [11] On balance, the reasons for delay do not weigh in favour of exceptional circumstances.

• [12] Action to dispute the dismissal: Ms Tickner advised QRI on the date of dismissal that she had concerns about the decision and the amount of severance pay. She foreshadowed on 15 January 2025 that she would make a human rights/discrimination claim. Despite this assertion, Ms Tickner did not take any formal action to dispute the dismissal until 7 April 2025. This weighs against a finding of exceptional circumstances.

• [13] Prejudice to the employer: On the materials, there is some potential for prejudice to QRI if additional time is allowed for the application to be made 263 days late. The decisionmaker in relation to Ms Tickner's redundancy is no longer employed by QRI. Cases of this kind carry a reverse onus of proof and often turn on the evidence of the decisionmaker(s). The loss of a key witness may operate to the detriment of QRI in the circumstances.

• [14] Merits: Ms Tickner was made redundant after a long period of medical leave. She says she was the only one made redundant in Head Office, and that new employees have since replaced her. QRI denies this version of events and says Ms Tickner was one of three made redundant for genuine operational reasons. The merits of the case are accordingly matters that could only be properly assessed at a hearing of the application. They weigh neutrally in my consideration.

• [15] Fairness as between Ms Tickner and another person in a like position is not a relevant consideration on the materials. This is also a neutral consideration.

• [16] On balance, I am not satisfied that there are relevant exceptional circumstances weighing in favour of additional time for the application to be made. There is a lack of medical evidence to support submissions to the effect that Ms Tickner was unable to apply to the Commission in a timely way either in the 21 days after the dismissal or thereafter for 263 days, although I accept as far as the evidence goes that Ms Tickner has and continues to experience mental health challenges. Despite knowing of the dismissal straight away, and contesting it the same day, Ms Tickner did not take any formal action to dispute the dismissal for many months. Allowing an extension of time in the circumstances may operate to the prejudice of QRI if it no longer has a relationship with a key witness in the case. The other mandatory considerations are neutral for the reasons above.

• [17] As I have not found exceptional circumstances in connection with the delay, no additional time can be allowed for the application to be made. The result is that the application was not filed within 21 days after the dismissal took effect and was not made in accordance with the Act.

• [18] The application is dismissed under s.587(1)(a) of the Act.

H Schoenherr of Irwell Pty Ltd on behalf of the respondent.

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