s.394 - Unfair dismissal

• [1] On 15 February 2025, Ms. Sujata Giri was dismissed from her employment with Selebrityink Pty Ltd (Selebrityink).

• [2] On 1 April 2025, she made an application claiming she was unfairly dismissed from her employment. Unfair dismissal applications are required to be made within 21 days of the dismissal taking effect. Her application was 22 days late.

• [3] The Commission has power to extend the time for making the application if the Commission is satisfied that there are exceptional circumstances under s 394(2)(b).

• [4] On 1 May 2025, I heard Ms. Giri's extension of time application by way of a determinative conference. Ms. Giri appeared and represented herself. Selebrityink was represented by Mr. Milan Magar, who is the owner of the franchise of Selebrityink where Ms. Giri worked.

• [5] For the following reasons, I have decided not to grant an extension of time. The application in this matter is therefore dismissed.

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

• [6] The 21-day period does not include the day on which the dismissal took effect.[1] The dismissal took effect on 15 February 2025. The final day was 10 March 2025 and ended at midnight on that day.[2]

• [7] Ms. Giri's application was filed at 2:32 PM (AEDT) on 1 April 2025. It was made 22 days late. I therefore need to consider whether to make an order to extend the period to make the application.

• [8] I may allow a further period for an unfair dismissal application if I am satisfied there are exceptional circumstances, taking into account:

(b) when Ms. Giri first became aware of the dismissal after it had taken effect.

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

(d) prejudice to Selebrityink (including prejudice caused by the delay).

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

• [9] Each of these matters must be considered in assessing whether there are exceptional circumstances.[3] I set out my consideration of each matter below.

• [10] Ms. Giri explained the reasons for filing her application in oral evidence. Mr. Magar made no submissions on the reasons Ms. Giri gave for her delay.

• [11] Ms. Giri said the fact she was assaulted by a "homeless person on the bus" two days before she was terminated was a reason for her delay.

• [12] She explained a "homeless person" came toward her on the bus, abused her and threatened to "cut her throat". The homeless person sprayed her with an aerosol of some kind. Ms. Giri could not identify what the aerosol was. Ms. Giri informed the police. The police rang her twice about the assault. On the second occasion, Ms. Giri told police she did not want to take the matter further. She indicated the assault made her "stressed" but she did not go to the doctor to seek treatment for this stress.

• [13] A further reason she gave for the delay was the pursuit of an underpayment of wages. She initially contacted the Fair Work Ombudsman who wrote to Mr. Magar, and he never responded.

• [14] The Fair Work Ombudsman referred Ms. Giri to the Springvale South-East Monash Legal Service (SMLS) who also pursued her underpayment by Selebrityink. Ms. Giri was unclear about when she engaged SMLS. As I understand her evidence, it took some time to get an appointment with the service and her consultation took place after the twenty one day deadline had expired. It was SMLS who advised her that she was late in filing her unfair dismissal application and she should seek an extension of time.

• [15] Ms. Giri argued that as English was her second language it led to delays in the filing of the application. In her Form F2 she stated because of a lack of proficiency in English she "faced difficulties navigating the process, which unfortunately caused delays".

• [16] Ms. Giri gave evidence "everything was happening at once". She was a student living alone, she lost her job and faced financial difficulties. She found this confluence of circumstances "overwhelming".

• [17] Exceptional circumstances are to be given their ordinary meaning. Exceptional circumstances are out of the ordinary course, unusual, special, or uncommon. The circumstances do not need to be unique, nor unprecedented nor very rare.

• [18] The assault cannot be a good reason for delay. It is deeply distressing to be assaulted for no reason. However, it is significant it occurred before her dismissal and, on my calculation 47 days before she filed her application.

• [19] She experienced stress because of the assault. The incident was serious enough for her to engage the police. She did not seek medical attention to deal with any health consequences of the assault.

• [20] Deputy President Easton has helpfully summarised the approach of the Commission where mental health is claimed as a reason for delay in Bianca Mamo v. ICLED Australia Pty Ltd (with emphasis added):

"It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However, the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit.

(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves....

(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant's capacity to lodge the application within the statutory time limit ...

(iii) the evidence should positively demonstrate that the applicant's depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame ...and

(iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient..."[4]

• [21] Ms. Giri did not seek medical attention after the assault. She provided no medical evidence the assault caused ongoing psychological effects which affected her ability to file the application. It follows, consistent with Mamo, Ms. Giri failed to provide sufficient evidence the stress she suffered by reason of the assault was an adequate reason for the delay.

• [22] The fact she was able to pursue her claim for underpayment with the Fair Work Ombudsman and with the SMLS demonstrates some capacity to interact with legal bodies and to pursue what she perceives to be failure by an employer to follow the law.

• [23] In so far as Ms. Giri claims the length of time it took to receive legal advice was a reason for delay, it is well settled a delay caused by this reason cannot be an adequate reason. This is because it is common for people to experience delays in accessing legal services.

• [24] It follows her pursuit of her underpayment is not an adequate reason for the delay.

• [25] A lack of fluency in English may be a reason for delay. However, I accept the observation of Deputy President Sams in Troung v Elawar & Sons Mechanical Repairs:[5] "I would observe that not every dismissed employee is fluent in English.... I do not see how [this factor] produce[s] a situation which was "out of the ordinary, unusual, or special or uncommon."

• [26] Ms. Giri's reliance on this reason is like the Applicant in a decision of Deputy President Easton in Umar Muhammad v. Bunnings Group Limited.[6] In that case, the Deputy President found that despite the Applicant's language difficulties he was able to make a workers compensation claim and an application to Centrelink "shortly after dismissal".[7]

• [27] Ms. Giri's language difficulties did not prevent her from seeking legal advice on her underpayment case and cause letters of demand to be sent both by the Fair Work Ombudsman and by the SMLS. In all the circumstances I find that her language difficulties cannot account for a three week delay in filing an unfair dismissal application.

• [28] The fact Ms. Giri is a student, was stressed because of her dismissal and was undergoing financial difficulties are not special or unusual circumstances. Either separately or together these reasons cannot provide an adequate reason for delay.

• [29] None of the reasons provided by Ms. Giri are adequate reasons for the delay either collectively or individually:
  • The assault occurred before she was dismissed. She did not seek medical attention after the assault. There is insufficient evidence Ms. Giri's ability to lodge an application was affected by a psychological injury caused by the assault.
  • Her pursuit of her underpayments and the delay in obtaining legal advice are common circumstances.
  • Her lack of proficiency with English did not prevent her from pursuing her underpayment claim.
  • The fact she is a student undergoing financial difficulties following a termination of employment is not unusual.

• [30] It follows the reasons Ms. Giri gives for the delay are unexceptional. This factor counts against an extension of time.

When did Ms. Giri first become aware of the dismissal after it had taken effect?

• [31] Ms. Giri was notified of the dismissal on the day her employment was terminated. This factor is neutral in a consideration of whether to extend time.

What action was taken by Ms. Giri to dispute the dismissal?

• [32] Ms. Giri did pursue her underpayment claim and engaged with Mr. Magar on that issue. She did not, however, engage with him on the fairness or otherwise of her dismissal. It follows Ms. Giri took no steps to dispute her dismissal before lodging the application. This factor counts against an extension of time.

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

• [33] Mr. Magar made submissions concerning the financial position of his franchise since the dismissal. Since February, the franchisor has blocked payment to him. He made submissions he was on the brink of bankruptcy and had sought advice on that issue.

• [34] These issues may affect his capacity to pay but do not amount to a forensic prejudice such as unavailability of witnesses to defend any unfair dismissal case. It follows this factor is neutral in a consideration of whether to extend time.

• [35] Ms. Giri had worked part time as a receptionist at Selebrityink, which is a tattoo parlour, for around nine months.

• [36] She explained the manner of her termination. Mr. Magar rang her and said, "They want to hire someone else, and they want you to leave". Ms. Giri says this was unfair because it was "out of the blue" and "without warning or notice".

• [37] Mr. Magar conceded he had used these words but gave some context. The "co-founder/artist" who owned the franchise did not like aspects of Ms. Giri's work. The "co-founder/artist" did not like the fact Ms. Giri had not been trained in the expectations of a receptionist within one of his franchises. Mr. Magar gave hearsay evidence that Ms. Giri had been counselled about her work before she was terminated by the "cofounder/artist". When I pressed Mr. Magar about what the "cofounder/artist" had said to Ms. Giri and when, he could not give any details. Ms. Giri denies that she was ever counselled about her work.

• [38] I have my doubts about the veracity of Mr. Magar's evidence that the 'cofounder/artist" had counselled Ms. Giri. It is, however, clear there is an evidentiary contest between the parties on at least that issue. The merits of her unfair dismissal case turn on contested facts. It is not appropriate for the Commission to resolve contested facts in an extension of time application. In the absence of a full hearing, it is not possible to make any firm assessment of the merits.

• [39] This factor is therefore neutral in a consideration of whether to extend time.

Fairness as between Ms. Giri and other persons in a similar position

• [40] Neither party made submissions on this issue. This factor is also neutral to a consideration of whether to extend time.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• Reasons for Delay: The reasons for delay do not provide an adequate explanation for the delay. Her assault occurred before she was dismissed and there is no medical evidence it caused her a psychological injury. The pursuit of her underpayment claim, her limited ability to speak English, and her reason that "everything happened at once" are not adequate reasons to explain the 21-day delay. Therefore, this factor counts against an extension of time under s 394(3)(a).

• Action to dispute the dismissal: Ms. Giri took no action to dispute her dismissal prior to filing her application. The fact she pursued her underpayment claim is not relevant to this factor. This factor counts against an extension of time being granted under s 394(3)(c).

• [41] The considerations in s 394(3)(b), (d) (e) and (f) are neutral factors in an assessment of exceptional circumstances for the purposes of s 394(3):

• Notification of the Dismissal: Ms. Giri was notified of the date of her dismissal on the day her employment was terminated. She had the benefit of the full 21-day period to lodge her unfair dismissal application.
• Prejudice to the employer: Selebrityink made no compelling submissions that it would suffer prejudice by reason of the delay.
• Merits: On the untested and limited evidence before me, I am not able to assess the merits as a factor in determining whether I should grant an extension of time.
• Fairness between persons: No submissions were made on fairness arising between Ms. Giri and other persons in a similar position.

• [42] I conclude the reasons for the delay under s 394(3)(a) and the failure of Ms. Giri to dispute her dismissal under 394(3)(c) both count against an extension of time granted. All the other factors in s 394(3)(b), (d), (e) and (f) are neutral.

• [43] Two factors count against an extension of time being granted. The rest are neutral considerations. Therefore, on balance, considering all the factors under s 394, I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.[8]

• [44] Prior to the close of proceedings, Mr. Magar undertook to enter discussions with Ms. Giri about her alleged underpayment. He also undertook to negotiate a schedule of payments to ensure this claim is addressed. I wish to make it clear this decision does not affect the ability of Ms. Giri to pursue her underpayment claim.

Ms. Sujata Giri, the Applicant, on behalf of herself.

[1] Singh v BSG Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] The end of the 21-day period fell on 8 March 2025, a Saturday. Section 36(2) of the Acts Interpretation Act 1901 (Cth) extends the time to the next day that is not a Saturday, a Sunday, or a holiday, which is Monday, 10 March 2025.

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

[4] [2021] FWC 3903, [24]-[25].

[5] [2012] FWA 9709, [14].

[6] [2021] FWC 3570.

[8] PR786987.

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