s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application lodged out of time - application dismissed.

• [1] Mr Sean Robinson (the Applicant) lodged a s.394 application under the Fair Work Act 2009 (the Act) for unfair dismissal remedy in relation to the termination of his employment with Anglicare Tasmania Inc (Anglicare or the Respondent).

• [2] Mr Robinson's employment was terminated on 12 May 2025 following a disciplinary and show cause process investigating alleged misconduct pertaining to taking personal leave without submitting an application resulting in the Applicant being paid wages when he did not attend work and using the corporate credit card for non-work-related personal purchases. A previous investigation into the Applicant's misuse of the corporate credit card was finalised in 2022 with a findings and outcome letter issued and acknowledged by the Applicant.

• [3] This application was lodged with the Commission on 3 June 2025, 22 days after the dismissal, being one day beyond the statutory time limit of 21 days for lodging an unfair dismissal application.

• [4] An extension of time will only be granted in exceptional circumstances. Exceptional circumstances to satisfy an extension of time 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.[1] 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.[2]

• [5] Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the following must be taken into account to determine whether there are exceptional circumstances:

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

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

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

(f) fairness as between the person and other persons in a similar position.

• [6] Each of these matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

Reason for the Delay and whether the Applicant was aware of the dismissal after it took effect

• [7] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and 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.[3]

• [8] The dismissal took effect on 12 May 2025 at the conclusion of the show cause meeting. Mr Robinson was dismissed for misconduct and paid 4 weeks in lieu of notice. Mr Robinson was well aware that his employment was dismissed and therefore he had 21 days in which to lodge his unfair dismissal application.

• [9] The date of dismissal is not contested, but Mr Robinson submits he has a medical condition which causes him to experience a loss of executive function when placed under extreme stress. In support of his condition, he submitted a medical certificate dated 17 June 2025 certifying he "has a medical condition that can affect executive functioning when under extreme stress. This condition may have contributed to his delay in filing paperwork with the Fair Work Commission." There is no further information in this medical certificate to explain the delay. However, I do observe that the certificate is dated 17 June 2025, more than one month after the dismissal and it does not definitively attribute his condition to the delay. The certificate says it "may have contributed". I further observe the emails between 28 May and 3 June 2025 tendered into evidence by the Respondent where the Applicant politely requests a range of documentation. This correspondence does not illustrate any extreme stress or behaviour suggesting an inability to file an application. But rather the email correspondence demonstrates well-constructed, thought out and courteous communication.

• [10] Secondly, Mr Robinson states he made a clerical error as he assumed his dismissal took effect on the 13 May 2025 as he was paid out his entitlements on 12 May 2025. The Respondent contends that Mr Robinson was aware of the date of dismissal as this occurred in an in-person meeting. It further says that Mr Robinson in his Form F2 application was of the view that he filed within the 21-day time limit. The Respondent contends that there is no relevant explanation on this point and the evidence suggests that Mr Robinson simply left his application too late. There is no evidence to suggest the date of dismissal could be interpreted other than occurring on 12 May 2025.

• [11] Thirdly, Mr Robinson further states that he was waiting on documents to file his application, which he believes that the Respondent deliberately delayed ensuring he filed a late unfair dismissal application. The documents that he alleges he was waiting on are referred in the emails tendered into evidence from the Respondent.[4] Mr Robinson's first telephone contact on 27 May 2025 requests a copy of the allegations letter with attachments,[5] the second contact via email requests final payslips and a separation certificate,[6] and the third email requests the findings and outcomes letter.[7] During the hearing Mr Robinson confirmed that he received the letter of allegations by email on 29 January 2025 and the findings and outcomes letter by hand on 7 May 2025.

• [12] The Respondent submits that the application was filed on 3 June 2025 at 15.47pm, and despite having an emailed copy of the allegations and findings and outcomes letter, neither were attached to the application.

• [13] Taking into consideration the reasons for delay, I do not accept either of the three reasons justify an extension of time. The reasons are neither acceptable nor reasonable. The allegation that failure to receive the documents cannot be accepted because Mr Robinson was already in possession of those documents. The documents were not necessary to attach to the application and further the Applicant did not rely on them for his form F2 application. I am not persuaded that Mr Robinson either was subject to extreme stress or had a medical condition resulting in the delay or to confuse the date of dismissal. The evidence does not support the submissions made in regard to confusion over the date or the alleged incapacity to file on time.

• [14] The Respondent submits that no action was taken to dispute the dismissal when it took effect.[8] The Respondent contends that the Applicant asked if he could resign having been dismissed on 12 May 2025 and simply requested further information on 28 May 2025. There is no evidence that Mr Robinson contested his dismissal or took action to place the Respondent on notice that an unfair dismissal application would be made. On this basis there is no weight to this consideration for an extension of time.

• [15] In relation to whether the delay in filing the application has caused disadvantage or unfairness to the employer, Mr Robinson submits that he "had always intended to file an application for unfair dismissal."[9] Anglicare submits that no prejudice arises from the delay in filing the application.[10] An absence of prejudice does not favour an application, therefore this consideration is neutral.

• [16] The Respondent dismissed the Applicant's employment on the grounds of misconduct. The misconduct concerned breaches of Anglicare's corporate credit card policy, the corporate credit cards statement of cardholder responsibilities, the personal leave policy, the code of conduct policy, and failure to follow a reasonable workplace direction. The Respondent submits the conduct justified dismissal, while the Applicant contends that the more appropriate outcome should have been a warning.

• [17] Mr Robinson submits that the reasons for his dismissal seem unjust and unfairly harsh because in his opinion other employees have received greater leniency.[11]

• [18] The Respondent submits that the Applicant was subject to an earlier disciplinary process in relation to its Code of Conduct and relevant policies and procedures, which made clear his obligations. On 29 January 2025, the Applicant was provided with detailed written allegations for which the Applicant responded to on 3 February 2025. Additional allegations of breach of confidentiality were presented to the Applicant on 12 February 20225. A meeting of the parties took place on 17 February 2025, and after further investigation, a letter dated 7 May with the findings and evidence was presented. A show cause meeting took place on 12 May 2025. It was on 12 May at the conclusion of the show cause meeting that the Applicant's employment was dismissed. Mr Robinson was paid 4 weeks in lieu of notice.[12]

• [19] The findings and outcome letter of 7 May 2025 refers to the incidents where the Applicant failed to attend for work but did not submit a leave application (resulting in wages paid on 4 separate occasions even though he did not attend work), use of the company credit card for non-work related purposes while on annual leave (this conduct was consistent with earlier conduct in January 2022 resulting in a warning), and failure to follow a reasonable and lawful direction to submit medical certificates along with the leave form for the absence from work from 13 January to 22 January 2025.[13]

• [20] I do observe that the Applicant does not deny the allegations and finding but rather considers the dismissal harsh. Having considered the uncontested evidence regarding the allegations and process undertaken, including Mr Robinson's earlier discipline over misuse of company credit cards, it is unlikely Mr Robinson will have a meritorious case. The allegations are serious in nature amounting to valid reason and there is no evidence to suggest an unfair process. For this reason, I cannot find the merit of the application to weigh in favour of an extension of time.

Fairness as between the person and other persons in a similar position

• [21] The Applicant addresses matters in relation to his dismissal and the Respondent submits that time limits are a relevant consideration and other applicants in a similar position could file an application on time. There is no evidence of persons in a similar position or affected by the same issue, therefore I find this consideration neutral.

• [22] The bar for an extension of time is a high one requiring the Applicant to demonstrate exceptional circumstances in relation to the factors to be considered in ss.394(3)(a) - (f) of the Act.

• [23] As either a single matter or a combination of the factors, I am required to take into account my findings in relation to s.394(3). I have considered the submissions and material submitted by the parties and taken them into account in my assessment of whether I can be satisfied that there are exceptional circumstances to justify an extension of time against the matters in s.394(3).

• [24] Having considered each of the required matters in s.394(3) the neutral factors are prejudice and fairness between persons, while the balance of considerations I find do not favour the Applicant's extension of time application. Mr Robinson has failed the meet the bar that the considerations are of exceptional circumstances to justify an extension of time. Therefore, I do not grant Mr Robinson an extension of time to file his unfair dismissal application.

• [25] Pursuant to s.587 of the Act, Mr Sean Robinson's application for an unfair dismissal remedy is dismissed.

A Darcy with C Green, lawyer, for the Respondent

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

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[5] Email from Ms Darcy attaching the allegations letter on 28 May 2025 at 8:10am.

[6] Email from Mr Robinson to Ms Darcy on 28 May 2025 at 11.44am.

[7] Email from Mr Robinson to Ms Darcy on 28 May 2025 at 12.44pm. This material was forwarded to Mr Robinson on 3 June 2025 after Ms Darcy returned to work and saw the email.

[8] Respondent's Outline of Argument at [32]-[33].

[9] Applicant's Outline of Argument at [6].

[10] Respondent's Outline of Argument at [34].

[11] Applicant's Outline of Argument at [7].

[13] Attachment 1 to form F3 - Letter of findings and outcomes dated 7 May 2025.

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