s.365 - General protections

General protections dismissal dispute - application filed out of time - two earlier applications discontinued - medical condition - exceptional circumstances found and extension granted

• [1] Rosario Grau Baena commenced employment with Vistage Australia Pty Ltd (Vistage) on 16 September 2024. Vistage operates a CEO coaching and peer advisory business. Ms Grau Baena was dismissed effective 25 November 2024 for alleged underperformance during her probationary period.

• [2] The following uncontested events[1] occurred following Ms Grau Baena's dismissal on 25 November 2024:

1. 26, 27, and 29 November 2024 and 13 December 2024: Ms Grau Baena sent emails unsuccessfully seeking to have discussions with managers concerning her dismissal.

1. 14 December 2024: Ms Grau Baena filed an unlawful termination of employment dispute pursuant to s.773 of the Fair Work Act 2009 (FW Act): Matter C2024/9044.

1. 16 December 2024: The Commission provided Ms Grau Baena with correspondence indicating she may not be eligible to lodge an unlawful termination dispute because she was employed by a national system employer. The correspondence put Ms Grau Baena on notice that "you only have 21 days from the date your dismissal took effect to withdraw your unlawful termination application and lodge a new application with us."

1. 18 December 2024: Ms Grau Baena filed a general protections dismissal dispute application pursuant to s.365 of the FW Act: Matter C2024/9180.

1. 23 December 2024: Ms Grau Baena was advised by Commission staff that she had filed multiple applications in breach of the general rule in s.725 of the FW Act. Ms Grau Baena discontinued both existing applications during a phone call at about 3:02pm on 23 December 2024.

1. 23 December 2024: Ms Grau Baena filed a new general protections dismissal dispute application at around 9:59pm on 23 December 2024: Matter C2024/9449. Nell Cleary (Director - Business Operations) is also identified as a respondent to Ms Grau Baena's application.

• [3] The effect of the events described above is that Ms Grau Baena's only remaining application was filed on 23 December 2024. That application was filed seven days outside of the 21-day filing period prescribed by s.366(1)(a) of the FW Act, which ended on 16 December 2024. That means Ms Grau Baena needs an extension of time to file her application pursuant to s.366(2) of the FW Act.

• [4] Vistage filed submissions in response to the material filed by Ms Grau Baena on 17 February 2024. Vistage also requested that the extension of time issue be determined on the papers given that Vistage had not filed evidence, and because Vistage did not require Ms Grau Baena for cross-examination. Ms Grau Baena consented to the extension of time issue being determined on the papers via email on 18 February 2025.

• [5] Under s.366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

1. any action taken by Ms Grau Baena to dispute the dismissal; and

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

1. fairness as between Ms Grau Baena and other persons in a similar position.

• [6] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

• [7] I set out my consideration of each matter below.

• [8] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 16 December 2024. The delay is the period commencing immediately after that time until 23 December 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

• [9] 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.[4]

• [10] Ms Grau Baena does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Ms Grau Baena has not provided any reason for any part of the delay.[5]

• [11] Ms Grau Baena provided two reasons for the delay in the filing of her application:

1. Ms Grau Baena erroneously filed an unlawful termination application on 16 December 2024, which was within the 21-day period. Ms Grau Baena then filed a further application on 18 December 2024 but had not discontinued the unlawful termination application at that time. Ms Grau Baena was then advised to discontinue both applications and file a new application on 23 December 2024.

1. Ms Grau Baena was suffering from medical issues in December 2024.

• [12] Ms Grau Baena provided medical evidence which demonstrates:

1. Ms Grau Baena attended Dr Joshua Farrell on 13 December 2024 in relation to vomiting, diarrhoea, bleeding, and abdominal pain. Dr Farrell recorded that Ms Grau Baena had been experiencing the symptoms for seven days.

1. Ms Grau Baena attended a radiology scan on 19 December 2024 following a referral by Dr Anna Raif.

1. Ms Grau Baena attended Prince of Wales Hospital on 23 December 2024 in relation to nausea, vomiting, and diarrhoea. Ms Grau Baena was discharged on 23 December 2024. The discharge report refers to Ms Grau Baena suffering symptoms for three weeks and recommends further investigation. Medication was also prescribed.

1. Ms Grau Baena was referred to a specialist, Dr John Almeida, by Dr Andrew Adams on 24 December 2024.

• [13] In relation to Ms Grau Baena's first explanation, Vistage argued a delay caused by a lack of awareness about the correct jurisdiction was not an adequate explanation of the delay. Vistage referred to examples of first instance decisions where an extension of time was not granted in similar circumstances.[6]

• [14] In relation to Ms Grau Baena's second explanation, Vistage argued that Ms Grau Baena's medical evidence did not provide a satisfactory explanation for the delay and highlighted that there was only evidence of single day attendances at a day surgery and hospital. Vistage submitted that stress arising from a termination is not an exceptional circumstance. Vistage also referred to Ms Grau Baena travelling internationally since her dismissal.

• [15] In addition to the cases cited by Vistage, there are numerous other examples of the Commission not granting an extension of time where an application was initially made in the wrong jurisdiction. For example, Deputy President Bell stated the following in Gibbons v Advan Pty Ltd[7] in relation to an 8-day delay in filing:

"The reason for the delay is, at its heart, due to a belated realisation that the Applicant's unfair dismissal claim was likely to fail because of a jurisdictional requirement. That itself is not exceptional nor, in my view, even particularly remarkable."

• [16] However, there are various other examples of the Commission granting an extension of time after an applicant has filed an incorrect type of application within the 21-day period. For example, in Poulton v Rail Infrastructure Corporation, a Full Bench of the Australian Industrial Relations Commission found in relation to predecessor extension of time provisions:

"Whilst all matters are determined on their own facts, and our finding as to an acceptable explanation is made on the basis of the particular circumstances recorded above, we note that there are other decisions of the Commission which have accepted as an acceptable explanation for delay, late lodgement caused by a reasonably based application in another jurisdiction, where prompt action had been taken to initiate a s.170CE application, once the absence of jurisdiction in the State tribunal has been established."[8]

• [17] As the Full Bench stated above, each case ultimately turns on its facts. There are not decision rules to the effect that one type of explanation will always provide a satisfactory reason for the delay nor that a particular type of explanation will never provide a satisfactory reason for the delay.

• [18] I consider Ms Grau Baena has a satisfactory explanation for the delay in the filing of her application between the dates of 18 December 2024 to 23 December 2024. Ms Grau Baena understood that she made a valid general protections application on 18 December 2024 and her lack of action following this date is justifiable and reasonable. I am not surprised a self-represented litigant would not fully understand the effect of the multiple action provisions in the FW Act. When Ms Grau Baena was alerted to the potentially invalid applications on 23 December 2024, Ms Grau Baena promptly discontinued both existing applications and filed a new general protections application on the same day. Ms Grau Baena took this action despite being unwell enough to attend hospital on that same day.

• [19] Assessing whether Ms Grau Baena has a satisfactory explanation for the delay between 16 December 2024 and 18 December 2024 is more difficult. As Vistage pointed out, Ms Grau Baena was informed by the Commission on 16 December 2024 that it was likely she was ineligible to make an unlawful termination application and that if she decided to discontinue that application and make a general protections application, this needed to occur within 21 days of her dismissal, or she would require an extension of time.

• [20] I accept Ms Grau Baena was suffering from a reasonably serious medical condition during the period of 16 to 18 December 2024. However, it appears Ms Grau Baena was suffering from this same medical condition when she was able to lodge all three applications. I am not satisfied the medical condition explains why she did not urgently file a general protections application on 16 December 2024 and waited until 18 December 2024.

• [21] I reject Vistage's submission that Ms Grau Baena was simply suffering from stress during this period. It is clear from the medical evidence that Ms Grau Baena was quite unwell, and she sought medical treatment on several occasions. Ms Grau Baena's medical condition is not fairly described as stress that regularly arises from a dismissal.

• [22] On balance I am not satisfied that Ms Grau Baena has a satisfactory explanation for the delay in filing her general protections application during the period of 16 December 2024 to 18 December 2024.

• [23] I have found Ms Grau Baena has a satisfactory explanation for a large part of the delay, but not the full delay. Given these findings, I consider the reason for the delay is a neutral factor.

WHAT ACTION WAS TAKEN TO DISPUTE THE DISMISSAL?

• [24] Ms Grau Baena clearly took several actions to dispute the dismissal.

• [25] Ms Grau Baena attempted to arrange a meeting with Ms Cleary on the day following her dismissal. Ms Cleary refused to meet with Ms Grau Baena. Ms Grau Baena then unsuccessfully attempted to meet with another superior, Stephanie Christopher. Ms Grau Baena gave notice to Ms Cleary and Ms Chrisopher on 13 December 2024 that she intended to file an application in the Commission due to their lack of responsiveness. I consider these were all steps taken by Ms Grau Baena to dispute her dismissal.

• [26] Ms Grau Baena erroneously filed an unlawful termination dispute on 14 December 2024, which was within 21 days of her dismissal taking effect. This is a further step taken to dispute the dismissal.

• [27] Ms Grau Baena filed a general protections application on 18 December 2024. This application was ultimately discontinued because it was filed before Ms Grau Baena had discontinued her unlawful termination dispute. This was a further step taken to dispute the dismissal.

• [28] I find Ms Grau Baena took various actions to dispute her dismissal and that this factor weighs strongly in favour of a finding of exceptional circumstances.

WHAT IS THE PREJUDICE TO THE EMPLOYER (INCLUDING PREJUDICE CAUSED BY THE DELAY)?

• [29] Then Deputy President Asbury in Nicolas JR v Nortask Pty Ltd[9] has previously found that having to deal with an earlier application filed in the wrong jurisdiction meant that the relevant employer had suffered prejudice above and beyond that encountered with a regular application.

• [30] Vistage submitted that it had already spent time and resources engaging with Ms Grau Baena's other discontinued applications. Having reviewed the material filed in each matter, I am not satisfied that considerable time and resources would have been expended on the other matters.

• [31] I consider prejudice to the employer weighs against a finding of exceptional circumstances, but only marginally.

• [32] It is well established that "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)".[10]

• [33] I agree with Vistage's submission that Ms Grau Baena's application takes somewhat of a "scattergun" approach to identifying the alleged proscribed reason for her dismissal. The lack of particularity potentially weighs in favour of a finding that the application lacks merit.

• [34] However, Vistage's submissions indicate Ms Grau Baena was placed on a "90 Day Plan in October 2024" due to concerns with her performance. This tends to indicate Vistage was intending to provide Ms Grau Baena with 90 days to improve her performance. Ms Grau Baena was dismissed on 25 November 2024 which must be significantly prior to the end of the 90-day period. It is not clear on the materials filed why Vistage decided not to allow Ms Grau Baena the full 90-day period to improve her performance. That may give rise to a suggestion that there was some type of intervening factor during the 90-day period.

• [35] Given there are contested facts in this case, on balance I find the merits of the application is a neutral factor.

FAIRNESS AS BETWEEN MS GRAU BAENA AND OTHER PERSONS IN A SIMILAR POSITION

• [36] As a Full Bench has noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[11] In particular, the history of this provision indicates that it refers to "other employees of the employer agitating the same or similar substantive issues".[12]

• [37] I accept Vistage's submission that the 21-day statutory filing period is a fundamental part of the statutory framework and not a mere technicality.

• [38] However, as identified above in relation to the reason for the delay, there are various decisions where an extension of time has not been granted because an incorrect application was initially filed, but there are also various decisions where an extension of time has been granted in similar circumstances. Each case turns on its own facts.

• [39] I consider fairness between Ms Grau Baena and other persons to be a neutral factor.

• [40] I must now consider whether I am satisfied that there are exceptional circumstances, taking account of my findings above.

• [41] 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.[13] 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.[14]

• [42] Having regard to all of the matters listed at s.366(2) of the FW Act, I am satisfied that there are exceptional circumstances.

• [43] I consider the various actions Ms Grau Baena took to dispute her dismissal weigh heavily in favour of a finding of exceptional circumstances. I have found that prejudice to the employer weighs marginally against a finding of exceptional circumstances and that the other factors are neutral. Although I have not found that Ms Grau Baena's medical condition was a sufficient explanation for the delay in filing the application, it is still relevant to the overall assessment. I am satisfied that the various actions taken by Ms Grau Baena to dispute her dismissal in conjunction with her reasonably serious medical condition are circumstances out of the ordinary course, special, and uncommon.

• [44] Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.

• [45] Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[15] I am satisfied that it is appropriate to extend the period for the application to be made to 23 December 2024.

• [46] The application will proceed to be listed for conference.

[1] Ms Grau Baena outlined the events in an email to the Commission dated 10 February 2025. Ms Grau Baena attached documents supporting her email. Ms Grau Baena was not challenged on the contents of her email or the attached documents.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39] ('Stogiannidis').

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

[6] Robertson z Zeguma Electrical and Communication Services Pty Ltd [2010] FWA 4525 at [13] and Makot Wol v Multicultural Community Services Geelong Inc [2023] FWC 2078 at [28].

[7] [2023] FWC 667, [45].

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

[9] [2014] FWC 5324, [69].

[10] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[11] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

[12] See Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090, [19].

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

[15] Fair Work Act 2009 (Cth) s.577.

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