Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - whether exceptional circumstances exist - fixed term contract

• [1] On 3 February 2025 Dr. Shima Taheri (Applicant), filed an application under s.394 of the Fair Work Act 2009 (Cth)(Act) for an unfair dismissal remedy against her former employer, Macquarie University (University, or Respondent).

• [2] At the time the Applicant's employment came to an end she was employed by the Respondent under the terms of a contract dated 8 December 2023. The contract provided amongst other things, that the Applicant's employment was for a fixed term and would come to an end on 31 December 2024 unless terminated in accordance with the contract. It was not in issue that the Applicant's employment came to an end on 31 December 2024. Consequently, to the extent that it can be said that the Applicant was dismissed[1] by the Respondent, a point which was squarely raised by the Respondent in their response, any 'dismissal' would have taken effect on 31 December 2024 and the application would therefore have been made outside the 21-day time limitation period prescribed by s.394(2) of the Act. Accepting for present purposes that the Applicant was dismissed on 31 December 2024, that time period expired on 21 January 2025 and so the application was late by a period of 13 days.

• [3] The Applicant has asked that the Commission extend the time period for making an application under s.394(2)(b) on the basis that there are exceptional circumstances that warrant an extension of time. That application is opposed by the Respondent. The matter was listed to determine that issue only. This decision deals with the question of whether the time period for making an application can and should be extended.

• [4] Prior to the termination of the Applicant's employment the Applicant had been employed under the terms of various contracts of employment at the University since March 2017. The most recent of these contracts was for the performance of work as a Senior Research Fellow in the School of Natural Sciences within the Faculty of Science and Engineering. As is mentioned above, the contract was stated as being for a fixed term with provision for earlier termination with and without notice. The term of the contract commenced on 1 December 2023 and ended on 31 December 2024. The contract also provided that no further notice or acts were required by either party to terminate the employment relationship at the expiry of the term.

• [5] The Applicant said that during the course of 2024 she was given various assurances that her contract would be renewed at the end of 2024. She said that she had made a significant contribution to the securing of a funding grant for the project that she was working on and referred to the terms of the research collaboration agreement for that project between the funders, the University of Queensland and the Respondent which made reference to the Applicant as an individual. The relevant extract from the agreement is as follows:

RF2 will also be employed at MQ. Dr Shima Taheri, currently working on this project at MQ through direct RTIO funding, will continue her work at level C. RTIO will contribute $(sum deleted) towards the full salary over 5 years. Dr Taheri (RF2) will be responsible for development of the selective precipitation process and scaling up of the technology.

• [6] The Applicant said that in or about November 2024, prior to the expected renewal of her contract, she was told that the position was to be advertised and that she could re-apply for the position if she wanted it. This was conveyed to the Applicant by Prof. Strezov. Prof. Strezov was the Applicant's immediate supervisor in her Research Fellow role. The Applicant did reapply and was ultimately unsuccessful. The Applicant was advised that she had been unsuccessful on 3 February 2025 and lodged her unfair dismissal application on the same day.

• [7] In order to determine whether exceptional circumstances exist to justify an extension of time I am required to take into account the matters listed in s.394(3). Section 394(3) provides as follows:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

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

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

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

• [8] The ultimate conclusion as to exceptional circumstances requires a consideration of all of the matters in s.394(3) and the allocation of appropriate weight to each of them. I deal with each of the matters in s.394(3), in turn, below.

Section 394(3)(a) - Reason for the delay

• [9] The delay is the period after the prescribed 21-day period for lodging an application; it does not include the period from the date the dismissal took effect.[2] However, circumstances arising prior to the delay may be relevant to the reason for the delay.[3]

• [10] An applicant does not need to provide an explanation for the entire period of the delay. The absence of an explanation for any part of the delay will usually count against an applicant. On the other hand, a credible explanation for the entirety of the delay will generally weigh in an applicant's favour[4].

• [11] The Applicant said that the delay in filing the application was attributable to misleading assurances that her contract would be renewed and a lack of transparency in the appointment process. The Applicant said that she delayed the filing of the application on the basis that she had an expectation that she would be re-engaged at the end of the recruitment process. This expectation was, according to the Applicant, based in part at least on the fact that she had been specifically named in the research collaboration agreement between the Respondent and various funders as described above. The Applicant also said she had not had any performance issues raised with her and had received an award for her work on the project in late 2024. She said that this gave her further reason to believe that she would be reappointed.

• [12] Prof. Strezov explained the significance of and the reasons for the Applicant being identified personally in the research collaboration agreement. He was the author of the budget proposal for the research project. He said a budget proposal for a research project is a request for staff, material, equipment and travel. He said approval was sought for government funding for a full-time Academic Level C and Level B position. Prof. Stezov said in his experience, it was difficult to justify Level C salary when seeking government funding. In this case, the justification was that the industry partner had funded a Level C position up until that point, and there was an employee (being the Applicant), employed at level C, working on the project at that point in time. He said budget justification information is separate and distinct to listing an individual as an 'investigator' for the purpose of a research project.

• [13] In relation to alleged misleading assurances given to the Applicant about her position, the Applicant asserted that she was repeatedly assured that the advertisement of the position was simply a procedural requirement rather than a true competitive process. There is no doubt the Applicant made active inquiries as to why the position was being advertised but there is insufficient evidence to conclude that the Applicant was told by anyone associated with the University that her appointment was simply a procedural matter. The Applicant's evidence was that Mr. Hose, the acting Deputy Dean of the Faculty, told her that her ongoing employment was 'complicated by university policy concerns', that it was 'a legal procedure that the University needed to follow' and that providing the Applicant with a renewal without advertising might prompt a conversion to permanency under the relevant agreement. This falls short of establishing that the Applicant was told her appointment was a mere 'procedural requirement' or formality and not a genuine appointment process. On 6 December 2024 the Applicant received an email from the University's HR Department advising her that there was to be a 'competitive recruitment process' and that this process aligned with the University's merit-based selection principles.

• [14] I am not satisfied on the evidence that following the Applicant being advised that the contract would come to an end on 31 December 2024 there were any representations made to the Applicant by anyone associated with the Respondent to the effect that the Applicant would be appointed to the position if she applied for it. The question was put directly to Prof. Strezov who firmly denied the proposition that he had ever indicated to the Applicant that this was the case. Prof. Strezov said that to the extent that there was any uncertainty on his part about the advertising and appointment process, it was about how the new positions were to be opened up to prospective candidates.

• [15] In many respects it is understandable that an applicant would not bring proceedings for unfair dismissal against their previous employer in circumstances where they have re-applied for a position with that employer, have a reasonable expectation that they would be successful with their application and are awaiting the outcome. Had the Applicant been re-engaged it is unlikely that the proceedings would have been brought. In this sense, it might be said that the Applicant's grievance was related to the failure of the University to re-engage her as opposed to the circumstances in which her employment came to an end in December 2024.

• [16] On the other hand, the Applicant must have been aware that there was some prospect that she would not be successful with her application for the university position and in not challenging the dismissal in a timely way, was assuming for herself some risk that she would be unable to proceed with an application. Whatever may have been said to the Applicant prior her being advised that the position was to be advertised, there was insufficient evidence to conclude that thereafter, the Respondent indicated that the process was anything other than an open and competitive one.

• [17] The Applicant's reliance on the research collaboration agreement was also misplaced. The Applicant was not a party to the research collaboration agreement and in any event, the terms of the agreement do not guarantee that the Applicant would be employed for the duration of the project. Had this been the case the Respondent would have faced a contractual obstacle to opening the position to other candidates in the way that it did and the recruitment process would have been unnecessary. On balance I am not persuaded that the Applicant's decision to not pursue an application until the recruitment process had been concluded provides an entirely satisfactory reason for the delay.

• [18] The Applicant also argued that she sought advice about her situation and that this contributed to the delay. There was limited evidence as to when this occurred. The emails to the National Tertiary Education Union (NTEU) from the Applicant were sent on 4 November and 13 December 2024, that is, before the Applicant's employment came to an end. I do not consider that this aspect of the explanation for the delay is of assistance to the Applicant.

Section 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

• [19] The Applicant was made aware that her employment was coming to an end prior to 31 December 2024. The provisions of the contract that the Applicant had entered into were in clear terms. The term of the contract would end on 31 December 2024. The Applicant was told by Prof. Strezov on or about 29 October 2024 that the contract would not be renewed, that a position would be advertised, and that she could reapply for the position. On 1 November 2024 the Applicant inquired about obtaining an honorary position after her contract ended so that she could continue to use University facilities. The Applicant could not have been in any doubt that her employment would end on 31 December 2024 prior to the occurrence of that event. I reject the submission that the Applicant only became aware that her employment would end on 31 December after she became aware that her application had been unsuccessful. In the circumstances, s.394(3)(b) is a neutral factor in the overall consideration.

Section 394(3)(c) - Any action taken by the person to dispute the dismissal

• [20] There was evidence that the Applicant was making inquiries about the circumstance in which her employment was coming to an end prior to 31 December 2024. The Applicant said she spoke informally with Professor Clark on or about 8 January 2025 about the application process and her ongoing role and Prof. Clark suggested she speak with Prof. Strezov upon his return from leave. However, there was no evidence to indicate that the Applicant took steps to dispute the termination of her employment after it had occurred but prior to the lodgement of the unfair dismissal application. The Respondent was not on notice that an application of this kind was going to be made until they received the application. This weighs against a conclusion that there are exceptional circumstances.

Section 394(3)(d) - Prejudice to the employer, (including prejudice caused by the delay)

• [21] The Respondent submitted, and I accept, that there would be no relevant prejudice to the Respondent if time for the making of the application were to be extended. This is a neutral consideration here.

Section 394(3)(e) - Merits of the application

• [22] As is the case with extension of time applications under Part 3-1 of the Act,[5] it is not generally necessary or appropriate for the Commission to resolve all contested issues of fact going to the ultimate merits for the purposes of taking account of the matters in s.394(3)(e). These are matters that are dealt with at a full hearing in the event the substantive application is dealt with. In this instance the Applicant said she was told at various points during her employment that her contract would be renewed and that she was not given written notice of the termination of her employment consistent with s.117 of the Act. The Applicant maintained the decision to advertise the position was only advised to her at the last minute and came without explanation. The Applicant contended that the process lacked procedural fairness and that there were no issues relating to her performance prior to the termination of her employment. The Applicant alleged that the termination of her employment may have occurred to avoid the requirements of the Macquarie University Academic Staff Enterprise Agreement 2023 (MU Agreement) relating to conversion from fixed term to continuing employment.

• [23] The Respondent said the fact that the Applicant's employment would come to an end on 31 December 2024 was abundantly clear from the contract and from interactions between the Applicant and Prof. Strezov who advised her of this situation on 29 October 2024, and from email communications with other University staff. The Respondent denied that the Applicant was eligible for conversion to continuing employment under the MU Agreement given her previous history of employment with the University.

• [24] In any event, the Respondent maintained that the Applicant had ultimately not been dismissed within the meaning of s.386(1)(a), but rather that the employment had come to an end through effluxion of time in accordance with the contract of employment.

• [25] The Respondent did not seek to rely on the exception in s.386(2)(a) of the Act which relates to, amongst other things, persons employed under a contract of employment for a specified period of time. The Respondent did not do so on the basis that the contract was an 'outer-limit' contract which made provision for termination other than by expiry of the fixed term. The recent decision of the Full Court of the Federal Court of Australia in Alouani-Roby v National Rugby League Ltd[6] makes clear that such contracts are caught by the exception in s.386(2)(a)[7] where, as here, the contract is terminated at the end of the specified period. In those circumstances I am of the view that the Applicant would face serious difficulties in successfully pressing a claim that she had been 'dismissed' within the meaning of s.386 of the Act. I do not consider that the merits of the application favour an overall conclusion that exceptional circumstances exist.

Section 394(3)(e) - Fairness as between the person and other persons in a similar position

• [26] I am not aware of other persons in a similar position to the Applicant agitating the same or similar issues as have arisen here. I regard this as a neutral factor in this case.

• [27] 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.[8] 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.[9]

• [28] Having considered the various matters referred to in s.394(3) and weighed them in the balance, I am not satisfied that there are exceptional circumstances in this case. I am therefore unable to extend time for the application to be made.

• [29] The application for an unfair dismissal remedy is dismissed.

By Video using Microsoft Teams at 10:00 AM AEDT on Thursday, 06 March 2025.

[1] See s.386 of the Act.

[2] Long v Keolis Downer [2018] FWCFB 4109 at [4].

[3] Shaw v. ANZ Banking Group Ltd [2015] FWCFB 287 at [12].

[4] See Stogiannidis v. Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39] and [40] in relation to similar provisions under Part 3-1. See also Reeves v. Monadelphous Engineering Associates Pty Ltd [2018] FWC 2219 at [20].

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

[6] [2024] FCAFC 161.

[7] Ibid at [50]-[52]. See also Roberts v. TasTAFE [2025] FWCFB 3.

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

[9] Ibid. See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901.

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