s.394 - Unfair dismissal

Application for an unfair dismissal remedy- jurisdictional objection - out of time - representative error - extension granted.

• [1] On 19 December 2024, Ms Rebecca Lynn Leeson was advised by her employer McDougall & Sons Pty Ltd (M&S) that she had been dismissed, on the grounds of serious misconduct, effective immediately.

• [2] On 13 January 2025, Ms Leeson filed an unfair dismissal application. Ms Leeson's application suggested that the dismissal took effect on 20 January 2024.

• [3] M&S have raised two jurisdictional objections. First, that the application was lodged out of time, and second that the dismissal was in accordance with the Small Business Fair Dismissal Code (SBFDC).

• [4] Unfair dismissal applications are required to be made within 21 days of the dismissal taking effect. Ms Leeson's application was lodged on 13 January 2024. Even if the dismissal took effect on 20 December 2024 (which as explored below, I find it was not), it was outside of the 21-day time limit.

• [5] Therefore, for Ms Leeson 's application to proceed, she requires an extension of time. The Commission has discretion to provide Ms Leeson with an extension of time if satisfied that exceptional circumstances exist.

• [6] I issued directions on 6 February 2025 for the parties to file their material regarding the extension of time. Both parties complied with the directions. As neither party sought to call any witnesses, I sought their views on whether the matter could be dealt with on the papers. On 21 February 2025 the Applicant and the Respondent provided their respective consent for the matter to be determined on the papers without the need to hold a hearing, noting neither party sought to cross examine the other with respect to their witness statements, nor has the Respondent disputed Ms Leeson 's witness statement and its annexures or attachments. As such the scheduled hearing date was vacated.

• [7] For the following reasons, I have decided to grant Ms Leeson an extension of time for the making of her application.

• [8] It is uncontroversial that on 19 December 2025, Ms Leeson received a letter advising that firstly, she had been summarily dismissed, and secondly that her dismissal was "effective immediately". Curiously though, Ms Leeson's application, filed by Mr Jonothan Althaus, (Lawyer from Enterprise Legal) provided that the date of dismissal was 20 December 2024 as this was the date, she received her final pay.

• [9] Whilst the question of representative error is further explored below, with respect the date Ms Leeson's summary dismissal took effect, it cannot reasonably be argued that this was any date other than the date provided in her letter of termination. Accordingly, I find that the date the dismissal took effect was 19 December 2024.

Was the Application made within 21 days after the dismissal took effect?

• [10] On 20 January 2025, in response to initial inquiries regarding the application being out of time, Mr Althaus wrote to Deputy President Easton, submitting the following with respect to the calculation of the 21 days:

"As stated in the 'Timeframe of Lodgement' page of the Fair Work website that we are directed to below:

1. the 21 days for lodgement does not include the date the dismissal took effect, which means that day one commences the day following the dismissal; and

2. if the final day of the 21 day period falls on a weekend or public holiday, the timeframe will be extended until the next business day.

On our calculation, the 21 day period started on Saturday, 21 December 2024 and therefore the final day was Saturday, 11 January 2025. The Application was submitted the following business day, being Monday, 13 January 2025."

• [11] Mr Althaus is correct to the extent that the 21 day period does not include the day on which the dismissal took effect, however, even using his suggested effective date of dismissal (20 December 2024), the final day of the 21 day period would have been Friday 10 January 2025. In any case, as I have found the dismissal took effect 19 December 2024, the final day of the 21 day period was actually Thursday 9 January 2025. As 9 January was a business day, Ms Leeson had until midnight on that day to lodge her application within time.

• [12] Ms Leeson's application was filed Monday 13 January 2025, I therefore find it was four (4) days late. Consequently, for the application to proceed, I must consider whether to extend the period to make the application.

• [13] A further period may be allowed for an unfair dismissal application, per s 394(3) of the Act, if I am satisfied there are exceptional circumstances, taking into account:

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

(c) any action taken by Ms Leeson to dispute the dismissal.

(d) prejudice to McDougall & Sons (including prejudice caused by the delay);

(f) fairness as between Ms. Leeson and other persons in a similar position.

• [14] 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.

• [15] Ms Leeson commenced employment with M&S in or around June 2019 as a permanent full-time Accounts/Office Manager.

• [16] On the 16 December 2024, Ms Leeson attended a meeting with Ms Susan Wolski (Owner of M&S). At the meeting, she was provided correspondence outlining that M&S had commenced a workplace investigation into a range of financial concerns. In particular, the correspondence sought Ms Leeson's response with respect to "Concerning Conduct" including the unauthorised payment of bonusses to herself, and the use of Mr Leeson's husband's trading account to pay various personal bills. Ms Leeson was immediately stood down on full pay and was required to provide a response to the allegations by 4.00pm 18 December 2024.

• [17] At 3.30pm on 18 December 2024, half an hour before the response was due, Enterprise Legal contacted M&S requesting a 6 week extension of time to respond to the allegations. M&S replied to Enterprise Legal shortly after, denying the request for an extension of time, citing unreasonableness. Further, M&S outlined the findings of the workplace investigation and advised they had formed the view that termination of her employment without notice was the appropriate penalty. M&S requested a response by midday the following day, 19 December 2024. Ms Leeson did not respond.

• [18] At 1.43pm on 19 December 2024, having not received a response from Ms Leeson, M&S notified Ms Leeson that her employment was terminated due to serious misconduct, effective immediately; and advised that final payment of her wages would be paid.

• [19] It is Ms Leeson's submission that later that day, she engaged Enterprise Legal to file an unfair dismissal application on her behalf. She says that Enterprise Legal informed her that she would be required to deposit funds into their trust account for their legal fees. However, Ms Leeson informed Enterprise Legal that she would not be able to do that until 2025. Enterprise Legal confirmed they would make a start on the unfair dismissal application anyway because the timeframe for lodgement would be 21 days from the date Ms Leeson received her final pay. Noting their Christmas closure period, they indicated they would touch base with her in early 2025 to finalise her application so that it could be submitted.

• [20] On 20 December 2024, M&S made the final payment of wages to Ms Leeson.

• [21] On 6 January 2025 she called Enterprise Legal to confirm they had received her payment (made 4 January 2024) and that they had everything they needed from her to prepare her application. Enterprise Legal subsequently confirmed they had everything needed and would prepare her application. Ms Leeson says she also confirmed the date she received her final payment was 20 December 2024 and noted that Enterprise Legal had indicated this was the date the timeframe for lodgement of the application commenced, which she says, Enterprise Legal confirmed was correct.

• [22] On 7 January 2025, Ms Leeson says she spoke to Enterprise Legal again and provided additional details they had required - in that conversation Ms Leeson recalls asking whether the due date would be Friday 10 January 2025 because it was 21 calendar days from the dismissal (presumably, Ms Leeson was using the date suggested by Mr Althaus of 20 December). Enterprise Legal informed her that the final date for submission of the unfair dismissal fell on a Saturday, 11 January 2025 and accordingly the date for submitting the application would be Monday, 13 January 2025.

• [23] On 10 January 2025, Enterprise Legal emailed Ms Leeson explaining the final day to submit her unfair dismissal application was 13 January 2025 and providing a draft of her application and an annexure for her review.

• [24] On 13 January 2025, Mr Althaus contacted Ms Leeson to confirm that he was back from leave and would be finalising her application and submitting it that day. Ms Leeson's unfair dismissal application was subsequently filed with the Commission - four (4) days late.

• [25] Ms Leeson believes that the delay in submitting her unfair dismissal application was caused solely by representative error, due to Enterprise Legal miscalculating the deadline for lodgement. She submits that she acted promptly to provide instructions to her legal representative and made reasonable enquiries about the due date for lodgement which she was informed was 13 January 2025.

• [26] Ms Leeson submits that she took prompt action to engage legal advice and was active in pursuing the application, which is to say she is 'blameless' (as that distinction is made in Clark v Ringwood Private Hospital (1997) 74 IR 413).[1] Ms Leeson further refers to other situations where extensions of time were granted:

a. Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347,[2] noting in that instance the applicant had 60 days to file an application, was 3 days late to file and was considered to have a 'weak case' yet was still afforded an extension of time - in Ms Leeson's view it would be unfair to not allow her an extension of time as compared to the decision made in Robinson because her initial timeframe for filing was shorter, was the same number of days late, has a strong claim and was also only late on account of representative error; and

b. Setterfield v. Syefile Pty Limited [2010] FWA 3351,[3] noting the extension was granted where the representative error was the major (and possibly only) factor in the late lodgement, with that applicant being diligent in pursuing his case and not the cause of any delay - Ms Leeson submits that the same circumstances apply here in that she was diligent in pursuing the claim, was not the cause of the delay and where representative error was the only factor in the late lodgement.

• [27] M&S reject Ms Leeson's contention of representative error citing inconsistencies between her submissions and her witness statement. M&S submit that as per her witness statement, she knew the application should be filed on 10 January 2025 but accepted her solicitor was on annual leave and accepted the decision to wait and file her application on 13 January 2025.

• [28] M&S further submit that Ms Leeson acknowledges she engaged Enterprise Legal to file an unfair dismissal application on 19 December 2024 and that as such they clearly knew the date the dismissal was affected was 19 December 2024 not 20 December 2024, Ms Leeson's Form F2, and annexure A also acknowledges the date of dismissal as being 19 December 2024.

• [29] M&S contend that Enterprise Legal firstly claims they calculated the timeframe based on the dismissal taking effect when Ms Leeson received her final pay being 20 January 2025 (sic) or, in the alternate, that it was a legal representative error which the Commission should consider as exceptional circumstances. (It is noted that in the Form F3 and the Respondents submissions, they have used the date 20 January 2025 in refence to the final payment. It is presumed this is a typographical error, and that it is intended to reflect the date both parties accept the final payment was made - 20 December 2024).

• [30] M&S submit these circumstances are far from exceptional, they are not unusual, or not regularly or routinely encountered. The interpretation of the date of dismissal, in circumstances where termination letter states "We have no alternative but to terminate your employment due to serious misconduct, effective immediately and without notice" is a clear indication of when the dismissal was in this matter.

• [31] Finally, M&S submit that Ms Leeson's solicitor, Mr Althaus is described as having extensive experience in employment matters in his bio on his employer's website and he published on 12 January 2023, an article titled "Can I bring an Unfair Dismissal claim against my Employer". Mr Althaus writes:

Much like not making it to the starting line on time for the race, if you don't file an unfair dismissal claim on time then you have very little chance of even getting out of the blocks. Employees have 21 days from the date they are dismissed (emphasis added) (or the event leading to them resigning, in the case of a constructive dismissal) to bring an Unfair Dismissal claim (emphasis added). If your claim isn't filed with the Fair Work Commission by that date, then no matter how good your claim is it will be ruled ineligible and you'll lose any rights you might have had. In exceptional circumstances, the Fair Work Commission can grant an exception to that rule, but that would be the equivalent of starting the race late and hoping everyone else fell over before the finish line, so unless you're the modern-day Steven Bradbury, you wouldn't rely on it.

This might seem simple, but some things that may not be a dismissal are a resignation (unless it is 'forced'), a redundancy (provided it is genuine), you've been demoted or your fixed term has expired. You're in the wrong race altogether, and an unfair dismissal claim will not be applicable.

In this case, you've timed your jump too early, hit your front leg on the bar and come crashing to the ground. Unless you have actually been dismissed from your employment, you cannot bring a claim for Unfair Dismissal. This will usually be specified in your termination letter (emphasis added), and in some cases a resignation can still be a dismissal if it is considered to be a 'forced' resignation. There are some technicalities around what constitutes a 'dismissal' and whether it has been effective, so if it is unclear then you should seek legal advice before bringing a claim."

• [32] M&S submit it is uncontentious that Mr Althaus, was on leave until 13 January 2025 as confirmed in Ms Leeson's witness statement. Although the application was ready to file on 10 January 2025, as confirmed in Ms Leeson's witness statement, she did not instruct her solicitor to file and Enterprise Legal, did not file.

• [33] M&S believe Ms Leeson made a choice to wait for Mr Althaus to return from leave before filing, despite knowing, discussing, acknowledging and accepting the time frame for filing was 10 January 2025. M&S submit that this position is in stark contrast to the argument that this was a legal representative error. It is further submitted that the evidence provided by Ms Leeson is inconsistent and reveals the real reason for filing late is that she chose to wait until her solicitor returned from annual leave. A disregard to the statutory timeframe, despite knowing and acknowledging the application should have been filed, is not they contend, an exceptional circumstance nor a legal representative error.

• [34] 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 of the circumstances must be considered.[4]

• [35] Ms Leeson maintains that she was informed by Enterprise Legal that the last day for lodgement of her application was 13 January 2025. It is her position, therefore, that the reason her application was lodged out of time was representative error on Enterprise Legal's part.

• [36] As I have already found, the last day for lodgement was Thursday 9 January 2025. It is clear and I find that Enterprise Legal, in particular Mr Althaus, have made three significant errors when calculating the timeframe for lodgement. The first was to incorrectly rely on the date Ms Leeson received her final pay as the date the dismissal came into effect (20 December 2024).

• [37] Secondly, it seems Mr Althaus has then miscalculated the 21 days from that date as falling on a Saturday 11 January 2025 rather than the actual date of 9 January 2025. Again, somewhat curiously, even presuming Mr Althaus' used his incorrectly determined date of termination (20 December 2024) and applied the 21 days, the deadline would still, in this scenario have been Friday 10 January 2025, not Saturday 11 January 2025.

• [38] This second error has then forced a third error, in that presuming the final day fell on a Saturday, Mr Althaus has incorrectly applied the benefit of that final day not being a business day to extend the deadline for lodgement until the next business day, being Monday 13 January 2025.

• [39] I note M&S's submissions that Ms Leeson knew the actual deadline for the filing date was 10 January 2025 but disregarded this to wait for Mr Althaus' return. When considering this submission, it is important to note that neither party sought to cross examine the other with respect to their witness statements, nor has the respondent disputed the existence of an email attached to Ms Leeson's witness statement. This email, dated 10 January 2025 was sent to Ms Leeson from Enterprise Legal at 8.32am. The email attached a draft of the application and stated:

"Please find attached the following draft documents for your review and comments: 1. Form 2 Application; and 2. Annexure A.

As discussed on the phone earlier this week, the final day to submit this is Monday, 13 January 2025. If you could please forward any comments to us as soon as possible, that will assist us to submit it within the time period". (emphasis added)

• [40] The email Ms Leeson received from Enterprise Legal dated 10 January 2025 clearly demonstrates that Ms Leeson had been advised by Enterprise Legal earlier that week that the final date for lodgement of her application was Monday 13 January. Viewed objectively, I find that Enterprise Legal advised Ms Leeson, prior to the last day for lodgement (9 January), that she had until Monday 13 January to file her application

• [41] Office Works Ltd v. David Parker [2014] FWCFB 5779 (Office Works) is a Full bench decision which considers representative error.[5] In that decision, the Full Bench stated the following:[6]

"In circumstances where "representative error" is relied upon in Commission proceedings as an excuse or explanation for the failure to meet time limits, it is appropriate to have regard to the professional qualifications and expertise of the representative concerned. This will enable an assessment to be made as to the extent to which it was reasonable for a party to rely upon the skills and expertise of the representative in acting on their behalf. Clearly where the representative is a lawyer, an experienced industrial advocate, or an officer or employee of an organisation of employers or employees, it might more readily be concluded that representative error provides an acceptable explanation for the delay and such error should not be blamed upon the party concerned....

In general, representative error may be more readily accepted as an explanation or excuse where the person relied upon has professional qualifications or expertise in dealing with legal and employment matters than where reliance is placed on a family member or friend."

• [42] Noting, as acknowledged by M&S that Mr Althaus and Enterprise Legal are described as having "extensive experience in employment matters", and that Mr Althaus himself had published an article in which he explains the very concepts that have led to the errors the subject of this decision, it is nothing short of astounding that Ms Leeson was provided with the advice she was.

• [43] Notwithstanding the above, consistent with the comments of the Full Bench in Office Works, [7] I find that it was reasonable for Ms Leeson, who is not to my knowledge legally qualified, to have formed the view that Enterprise Legal were sufficiently skilled to provide her with sound advice in this regard.

• [44] I accept that Ms Leeson had sought legal advice regarding this matter from as early as 18 December 2024 from Enterprise Legal. Even if Ms Leeson had, as submitted by M&S, known that her dismissal was effective from 19 December 2024, it is understandable that, in the face of contrary advice from Mr Althaus and Enterprise Legal, she has relied on their expertise. Given the circumstances of this matter, she could not reasonably have been expected to have disputed their advice. I therefore find that she was without fault in the late filing.

• [45] Taking the above into consideration, I consider Mr Althaus and Enterprise Legal's error in informing Ms Leeson of the incorrect lodgement date and subsequently filing her application late to be an acceptable explanation of the delay. This consideration weighs in favour of an extension of time in this case.

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

• [46] It is uncontested that Ms Leeson first became aware of the dismissal on 19 December 2024 per the termination letter. As already considered, there was some confusion on this point as a result of Enterprise Legal's incorrect advice that the date the dismissal took effect was the date she received her final pay.

• [47] As considered above, Ms Leeson's termination letter, which was dated 19 December 2024 clearly indicated that her dismissal was effective immediately. Again, that Enterprise Legal made this error is particularly curious, given Mr Althaus notes in the above referenced article under the heading "has the dismissal been effected, that the effective date of dismissal "will usually be specified in your termination letter." It is also of note that Ms Leeson contacted Enterprise Lawyers, seeking their advice regarding lodging her application on the 19 December 2024.

• [48] In the alternative, had Enterprise Legal's interpretation of the dismissal taking effect when she received her final pay been correct, then the deadline for the application to be lodged was 10 January 2025. The application would have still been out of time as it was filed on 13 January 2025.

• [49] In any event, the date of termination was clearly outlined in the termination letter and as such, Ms Leeson had the benefit of the full 21 days to file her application. This consideration weighs against an extension of time.

• [50] Ms Leeson submits that when M&S first raised allegations against her, Enterprise Legal requested additional time to provide a meaningful response. However, M&S allowed only a further 4 business hours and Ms Leeson was unable to provide a proper response to the allegations within this timeframe and consequently did not do so.

• [51] M&S submit that Ms Leeson did not provide a meaningful response, save for requesting an unreasonable extension, despite having between 16 to 19 December 2024 to respond. It is further submitted that Ms Leeson did not dispute the termination further until she filed her unfair dismissal application out of time.

• [52] Whilst no evidence has yet been heard with respect to M&S's jurisdictional objection that the dismissal was compliant with the SBFDC, based on the material before me, I consider it highly likely that M&S will be able to mount an arguable case that they held a genuine belief that Ms Leeson had stolen from them. If such circumstances are supported by the evidence, it may then follow that the process followed by M&S in fact provided Ms Leeson with significantly more opportunity to respond than was required by the SBFDC .

• [53] In any case, it is clear that when M&S advised Ms Leeson that they had initiated an investigation, they sought her response - none was provided by Ms Leeson. Then, when M&S advised Ms Leeson that as a result of the investigation that they intended to summarily dismiss her for serious misconduct, they again provide her another opportunity to respond - none was provided by Ms Leeson. In fact, Ms Leeson is yet to have provided any response or explanation to the allegations. These facts weigh against an extension of time being granted.

• [54] Ms Leeson submits the application was only 1 - 2 business days late at most, and as such, M&S could not argue disadvantaged or unfairness. Noting that M&S was still able to obtain legal representation and submit a response to the application.

• [55] M&S have submitted that Ms Leeson has already caused them significant detriment and distress, including financial loss which is evidenced by various bank records, pay slips, data entry transactions and theft of customer's cash, petty cash and more, currently estimated to be $186,834.20. The provision of an extension of time they say would cause them significant prejudice by incurring further unnecessary legal fees that should properly be avoided, in circumstances where Ms Leeson has no reasonable prospects of success in her unfair dismissal application.

• [56] 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'.[8]

• [57] On balance, whilst I appreciate M&S's position, I have not been convinced that a delay of 4 days demonstrates any unfair disadvantage to the employer, noting further processes, such as their second jurisdictional objection, would still have been required had the application been filed 4 days earlier. I therefore find this to be a neutral consideration.

• [58] Without having received further submissions and evidence specifically in relation to the claim of unfair dismissal, there is insufficient evidence before me to make a full assessment as to the merits of the matter however, much will turn on the findings as they relate to M&S's second jurisdictional objection.

• [59] Again, these matters would need to be determined in a future proceeding however, I note that Ms Leeson has not disputed that M&S are a small business and further as I have noted above, I consider they have an arguable case that the dismissal was affected in accordance with the Small Business Fair Dismissal Code.

• [60] Noting the uncontested submission with respect to the filing of a police report, I also consider that M&S will have an arguable case that they held a reasonable belief that Ms Leeson had stolen from them during her employment.

• [61] I consider this factor weighs against the granting of an extension of time.

Fairness as between the person and other persons in similar position

• [62] 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.

• [63] I have found the representative errors made by Enterprise Legal provide an acceptable explanation of the delay and count in favour of an extension of time being granted. However, I have found that all other factors weigh against the granting of an extension, save for (d) and (f) which I have considered to be neutral.

• [64] In weighing the impact of the representative error against the other criteria I must consider, it is of significance that Enterprise Legal clearly led Ms Leeson astray. She relied on them, in particular Mr Althaus, to provide her with expert legal advice regarding her dismissal and they failed her. Enterprise Legal made multiple mistakes in a time critical matter.

• [65] This was not a situation where the applicant had sought their advice in the final days of the 21 day period. Miss Leeson sought Enterprise Legal's advice even before she was dismissed. They were across her case and became aware of her dismissal the day it happened. There is simply no excuse for their errors.

• [66] I have formed the view that the impact of Enterprise Legal's errors were of such significance that they outweigh the other considerations. Consequently, having weighed all of the factors in s 394, I find exceptional circumstances exist and that Ms Leeson should be allowed an extension of time to file her application.

• [67] In these circumstances, pursuant to s.394(3) of the Act, I order that the time for Ms Leeson to make her unfair dismissal application under s.394 of the Act to the Commission be extended to 13 January 2025. I order as such.

• [68] I shall issue directions for the hearing of the jurisdictional objection in due course.

[1] Clark v Ringwood Private Hospital (1997) 74 IR 413.

[2] Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728; (2011) 211 IR 347.

[3] Setterfield v. Syefile Pty Limited [2010] FWA 3351.

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

[5] Office Works Ltd v. David Parker [2014] FWCFB 5779.

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

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