s.394 - Unfair dismissal

Unfair dismissal application filed out of time - application filed over seven years late - no exceptional circumstances - extension of time not granted - application dismissed

• [1] Sara Mansour commenced full-time employment with Serco Pty Ltd (Serco) on around 1 October 2009. Ms Mansour was employed as a Detention (Client) Services Officer at Villawood Immigration Centre. In December 2013 Ms Mansour was attacked by a detainee she was transporting from Sydney Police Station to the Villawood facility. The attack led to Ms Mansour suffering Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder. Ms Mansour returned to work after the incident in 2014, but her condition worsened and Ms Mansour was deemed unfit for work from May 2014. Serco terminated Ms Mansour's employment effective 23 May 2017 on the basis that Ms Mansour had abandoned her employment. The termination letter states Ms Mansour had not responded to Serco's letters dated 21 March 2017 and 3 April 2017 which sought information from Ms Mansour about her condition and confirmation as to whether she would be returning to her role. Ms Mansour filed an unfair dismissal application with the Commission on 10 December 2024. That was around seven-and-a-half years after the 21-day filing period for an unfair dismissal application ended on 13 June 2017. As a result, Ms Mansour requires an extension of time to file the unfair dismissal application. This decision concerns whether an extension of time should be granted pursuant to s.394(3) of the Fair Work Act 2009 (FW Act).

• [2] I issued directions for the filing of material and listed a hearing in relation to the extension of time issue for 19 March 2025 via video. Ms Mansour represented herself at the hearing. Serco was represented by Jane Murray (Legal Director, Employment).

• [3] Ms Mansour provided submissions dated 5 February 2025. The submissions contain evidence from Ms Mansour about her dismissal and why she missed the 21-day filing period. In terms of the reason for the delay, Ms Mansour refers to Serco's lack of communication with her prior to her dismissal. Ms Mansour also refers to suffering from PTSD and other psychological issues prior to, and since, her dismissal on 23 May 2017. Ms Mansour refers to her father being diagnosed with a serious illness in 2017 which led to his death in 2019. Ms Mansour states dealing with this tragedy led to her condition worsening. Ms Mansour refers to trying to resolve her underpayment issues directly with Serco. Ms Mansour states she only became aware of the dismissal when she returned to Australia months after the dismissal had taken effect. Ms Mansour states her application has merit because she was an exemplary employee, and that she did not abandon her employment.

• [4] Ms Mansour provided further submissions filed 27 February 2025. The submissions contain further evidence from Ms Mansour about relevant events before and after her dismissal. Ms Mansour provided a timeline of the relevant communications she has had with Serco and United Voice respectively.

• [5] Ms Mansour filed the following documents as attachments to her submissions:

• A copy of the Serco Immigration Services Agreement 2014 and excerpts of relevant clauses.

• A copy of Ms Mansour's termination letter dated 16 May 2017. The letter identifies a dismissal date of 23 May 2017. The letter is signed by Joe Birch (Centre Manager - Villawood Immigration Detention Facility).

• A copy of an airline ticket which indicates Ms Mansour flew from Sydney to Dubai on 12 February 2017.

• A chain of emails between Ms Mansour and Serco representatives from 6 August 2024 to 9 October 2024 concerning the accuracy of Ms Mansour's termination payments.

• A medical report from Susan Stern (Psychologist) dated 30 April 2020. The medical report confirms Ms Mansour has been diagnosed with PTSD and Major Depressive Disorder by a general practitioner and psychiatrist. The report concludes that Ms Mansour is not fit to work and recommends that her application for a disability pension be approved.

• A letter from Mr Birch to Ms Mansour dated 21 March 2017 requesting an update from Ms Mansour about her employment status.

• An email from Ms Mansour to Mr Birch dated 25 March 2017. Ms Mansour indicates she intends to return to work but she remains unfit for work and is undergoing treatment.

• An email from Ms Mansour to Mr Birch dated 2 July 2017. Ms Mansour refers to her termination letter and a phone call with Mr Birch around one week before. Ms Mansour refers to her earlier email to Mr Birch dated 25 March 2017 as proof that she did not abandon her employment.

• An email from Ms Mansour to a member support email address for United Voice dated 7 July 2017. Ms Mansour provides a copy of her termination letter and the correspondence with Mr Birch.

• An email from a United Voice representative dated 10 July 2017. The email identifies that the 21-day period for Ms Mansour to file an unfair dismissal application ended on 13 June 2017. The email states Ms Mansour did not contact the union until 22 June 2017, which was nine days after the 21-day period had ended. The email states Ms Mansour is now out of time to challenge her dismissal.

• An email from Ms Mansour to United Voice dated 10 July 2017. Ms Mansour complains about the lack of assistance from United Voice and states that the union has not even attempted to communicate with Serco. Ms Mansour states she wants to make a complaint about her treatment by the union. United Voice responded from their member support email account on 11 July 2017 and indicated they would contact Serco, but that they needed to advise Ms Mansour of her legal obligations.

• Emails exchanged between Ms Mansour and Soraya Boulos (Serco representative) from 7 July 2017 to 19 July 2017. Ms Mansour refers Ms Boulos to her emails to Mr Birch and indicates she has not received a response. Ms Boulos indicates she is on leave but will be in touch with Ms Mansour next week.

• An email from Mr Birch to Ms Mansour dated 10 July 2017. Mr Birch indicates he is still considering the situation and will seek guidance from Ms Boulos when she returns from leave. Ms Mansour responds to the email later in the day on 10 July 2017 and indicates she will await Mr Birch's reply. Mr Birch sent a further email to Ms Mansour on 10 July 2017 querying whether she has returned from the United Kingdom.

• An email from Mr Birch to Ms Mansour dated 4 August 2017. Mr Birch states he has reviewed Ms Mansour's termination and has determined that the decision will stand.

• [6] I marked the material filed by Ms Mansour collectively as Exhibit A1. Ms Mansour was not required for cross-examination.

• [7] Ms Mansour provided oral submissions at the end of the hearing. Ms Mansour also confirmed that she was admitted as a solicitor on 5 July 2013.

• [8] Serco relied on a witness statement from Ronald Philip Rogers dated 14 March 2025. Mr Rogers provided an excerpt from the Register of NSW Solicitors which indicates a person named Sara Mansour was admitted as a solicitor on 5 July 2013. Mr Rogers also provided a copy of the Serco Immigration Services Agreement 2015. I marked Mr Rogers' statement, and the attached documents, Exhibit R1. Mr Rogers was not required for cross-examination.

• [9] Serco relied on an outline of submissions dated 14 March 2025 which addressed each of the factors the Commission must consider when determining whether to grant an extension of time. Ms Murray provided oral submissions at the end of the hearing.

• [10] Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

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

(c) any action taken by Ms Mansour to dispute the dismissal; and

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

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

• [11] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

• [12] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 13 June 2017. The delay is the period commencing immediately after that time until 10 December 2024, although circumstances arising prior to that period may be relevant to the reason for the delay.[2]

• [13] 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.[3]

• [14] Ms Mansour 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 Mansour has not provided any reason for any part of the delay.[4]

• [15] Ms Mansour identified the following reasons for the delay with the filing of her unfair dismissal application:

1. Ms Mansour was overseas when her employment was terminated, and she did not see the termination letter within the 21-day filing period.

1. Ms Mansour was suffering from PTSD and Major Depressive Disorder prior to her dismissal and has continued to suffer from those conditions during the delay period.

1. Ms Mansour's father was diagnosed with a serious illness in 2017 and passed away in 2019. This tragic event exacerbated Ms Mansour's illness.

1. Ms Mansour was not aware that she could file an unfair dismissal application even if she had missed the 21-day filing period.

• [16] In relation to Ms Mansour being overseas when her employment was terminated, it is not entirely clear what date Ms Mansour became aware of her dismissal. Ms Mansour has understandably struggled to recall the precise date. Ms Mansour's evidence that she became aware via a family member on around 22 June 2017 was not contested in cross-examination.[5] I am prepared to accept that evidence given an email from United Voice indicates Ms Mansour contacted United Voice on that date.[6] I accept Ms Mansour has a satisfactory explanation for the delay in the filing of her application from 13 June 2017 to 22 June 2017, because she was not aware that she had been dismissed.

• [17] In relation to Ms Mansour's mental health issues, it is well established that an applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay.[7] The stress or distress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[8]

• [18] It is clear from the evidence that Ms Mansour was struggling with significant mental health issues from 22 June 2017 until her assessment by Ms Stern on 29 January 2020.[9] There is no medical evidence that confirms whether Ms Mansour continued to suffer from the illnesses from 29 January 2020 until when her unfair dismissal application was filed on 10 December 2024. In addition, Ms Mansour was able to send a significant number of emails to United Voice and Serco contesting her dismissal from when she became aware of the dismissal on 22 June 2017. That indicates that while Ms Mansour was clearly suffering from serious mental illness at that time, the illness did not prevent Ms Mansour from taking steps to dispute her dismissal. Based on her ability to send these emails, I consider Ms Mansour would also have been able to file an unfair dismissal application around this time if she had been aware of that option. As a result, I do not consider Ms Mansour's medical conditions provide a satisfactory explanation for the delay in the filing of her unfair dismissal application from 22 June 2017 to 10 December 2024.

• [19] I accept Ms Mansour's evidence that the tragic circumstances of her father's death added to the mental health issues she was already struggling with. However, Ms Mansour has not provided medical evidence which demonstrates the additional mental health issues meant that she was not able to file an unfair dismissal application between the date of diagnosis in 2017 and the date her father passed away in 2019. I do not consider these unfortunate circumstances provide a satisfactory explanation for any period of the delay, given the lack of medical evidence.

• [20] In relation to Ms Mansour not being aware that an unfair dismissal application can be filed after the 21-day filing period, it is well established that ignorance of the statutory provisions is not a satisfactory explanation for filing an application late.[10] Ms Mansour's alleged lack of awareness about her legal rights is not a satisfactory explanation for the delay.

• [21] I find Ms Mansour has a satisfactory explanation for the delay in the filing of her unfair dismissal application from 13 June 2017 to 22 June 2017, because she was not aware of the dismissal during that period.

• [22] I do not consider Ms Mansour has a satisfactory explanation for the delay in filing her application from 22 June 2017 to 10 December 2024. That period constitutes a delay of well over seven years. This factor weighs heavily against a finding of exceptional circumstances.

Did Ms Mansour first become aware of the dismissal after it had taken effect?

• [23] I accept that Ms Mansour became aware of the dismissal on 22 June 2017, which is after the dismissal had taken effect on 23 May 2017. However, I have already taken this into account when concluding that Ms Mansour has a satisfactory explanation for the delay from 13 June 2017 to 22 June 2017. I consider this should be treated as a neutral factor in the overall assessment.

What action was taken by Ms Mansour to dispute the dismissal?

• [24] It is clear Ms Mansour made several attempts to contest the decision to end her employment from 22 June 2017 to around 4 August 2017, which is when Mr Birch confirmed the dismissal decision was final. I find this weighs in favour of a finding of exceptional circumstances.

• [25] I accept Serco's submission that the communications between Ms Mansour and Serco representatives which commenced on around 6 August 2024 were directed at underpayment issues, as opposed to the end of Ms Mansour's employment. I do not consider these communications weigh in favour of a finding of exceptional circumstances.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [26] I accept that Serco has suffered prejudice from the delay, which is a period of over seven years. It is inevitable that Serco will find it more difficult to lead evidence about the relevant events given the extremely long delay. I consider prejudice to Serco weighs against a finding of exceptional circumstances.

• [27] 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)", or in this case, s.394(3)(e).[11]

• [28] The end of Ms Mansour's employment appears to have been unfortunate because an email she sent to Mr Birch on 25 March 2017 providing an update on her recovery was not seen by Mr Birch. That meant Serco assumed Ms Mansour was not being responsive to its communications and proceeded to terminate her employment on that basis. I consider it likely that Serco would not have proceeded to terminate Ms Mansour's employment effective 23 May 2017 if her email had been seen.

• [29] However, it also appears extremely unlikely Ms Mansour would have been fit to resume work for Serco until at least when she saw Ms Stern on 29 January 2020, and probably for a considerable amount of time after that date. Ms Mansour had not performed work for Serco since May 2014. In those circumstances, I consider it is highly likely Serco would have decided it could not keep Ms Mansour's position open indefinitely and decided to proceed to terminate her employment in the medium-to-near future, even if Ms Mansour's email to Mr Birch had been seen.

• [30] It also appears that Ms Mansour's application is primarily directed at an alleged underpayment of entitlements upon termination, particularly in relation to long service leave. This is not the appropriate jurisdiction to pursue those claims.

• [31] Given the current uncertainty around what happened to Ms Mansour's email to Mr Birch on 25 March 2017, I find the merits of the application to be a neutral factor.

Fairness as between Ms Mansour and other persons in a similar position

• [32] 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."[12] In particular, the history of this provision indicates that it refers to "other employees of the employer agitating the same or similar substantive issues".[13]

• [33] Serco argued it would be unfair for Ms Mansour to be granted an extension of time when various other applicants have not been granted an extension when they have relied on similar explanations for the delay. Serco also submitted granting an extension would undermine the strict timeframe set by the FW Act.

• [34] I find fairness to be a neutral factor. All the relevant facts and circumstances of other cases would need to be known to make an informed assessment of any unfairness.

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

• [36] 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.[14] 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.[15] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension.[16]

• [37] Having regard to all the matters identified in s.394(3) of the FW Act, I am not satisfied that Ms Mansour has cleared the "high hurdle" of establishing exceptional circumstances. I have found that Ms Mansour does not have a satisfactory reason for the delay for a period of around seven-and-a-half-years. I do not consider Ms Mansour's actions taken to dispute the dismissal are sufficient to establish that there are exceptional circumstances, particularly given I have also found prejudice to Serco weighs against a finding of exceptional circumstances. I have found the remaining factors to be neutral.

• [38] I decline to grant an extension of time for the filing of the application.

• [40] I encourage Serco to communicate directly with Ms Mansour to try and resolve her dispute about long service leave and any other payments she alleges were payable on termination of her employment. Ms Mansour suffered a serious illness after being attacked while performing duties for Serco. Ms Mansour had a reasonably lengthy period of service. I consider it is appropriate for Serco to at least try and resolve Ms Mansour's concerns.

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

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

[7] See Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, YuDuo (Lynda)- [2018] FWCFB 1643, [38], [67].

[8] Becke v Edenvale Manor Aged Care [2014] FWCFB 6809, [9].

[9] Ms Stern's report dated 30 April 2020, DHB page 81.

[10] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1,[14].

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

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

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

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

[16] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288,[21].

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