Fair Work Act 2009

s.394 - Unfair dismissal

The Trustee For The Barlow Family Trust T/A La Moda Boutique

Application for an unfair dismissal remedy - extension of time - medical condition - no exceptional circumstances - application dismissed

[1] On 20 March 2023 Tara Lyons (Ms Lyons or the applicant) lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to an alleged dismissal by The Trustee for the Barlow Family Trust trading as La Moda Boutique (La Moda Boutique or the employer) which took effect on 15 February 2023.

[2] La Moda Boutique filed a response on 13 April 2023. The employer contends that the application should be dismissed because it is out of time and because Ms Lyons was not dismissed.

[3] Ms Lyons' application was made thirty-three days after the alleged dismissal took effect, being twelve days beyond the twenty-one day statutory time-limit. For the application to proceed it requires an extension of time. Ms Lyons seeks that extension.

[4] This decision deals with whether an extension should be granted.

[6] Materials were filed by Ms Lyons on 29 March 2023 and by La Moda Boutique on 13 April 2023.

[7] I heard the extension of time matter by video on 18 April 2023.

[8] Ms Lyons and La Moda Boutique were self-represented (the employer, by its owner Mr Barlow).

[9] Ms Lyons gave evidence. Both parties made oral submissions.

[10] A statement filed by La Moda Boutique from an Area Manager (Ms Leatherday) is before me but is not relevant to the extension of time issue as there is no dispute that the date Ms Lyons' employment ended was 15 February 2023. Ms Leatherday's statement may be relevant to the second jurisdictional issue (whether Ms Lyons was dismissed). On that basis I did not need to hear evidence from Ms Leatherday.

[11] Following the hearing I reserved my decision, noting that leave had been granted for both Ms Lyons and Mr Barlow to submit further documents referred to in the evidence.[1]

[13] La Moda Boutique operates retail stores in Queensland including at Mudjimba on the Sunshine Coast north of Brisbane.

[14] Ms Lyons was employed by La Moda Boutique as a part time retail employee. She commenced in March 2021. She worked from the Mudjimba store.

[15] Mr Mark Barlow is the owner of the business.

[16] Ms Lyons lives on the Sunshine Coast with her fifteen year old daughter. Her partner is located in Brisbane.

[17] It is not in dispute that Ms Lyons' employment ended on 15 February 2023 (though she was paid for shifts rostered but not worked on 16 and 17 February).

[18] The manner of her employment ending caused Ms Lyons stress and anxiety exacerbating a heart palpitation condition. The palpitations had been intermittent since she contracted COVID-19 some months prior. They had not however prevented Ms Lyons from working.

[19] On 7 February 2023, one week prior to 15 February 2023, Ms Lyons consulted her general practitioner (Dr Vogel) over the palpitations.[2] She was referred for testing via a Holter monitor.

[20] A Holter monitor was fitted on 14 February and worn for 24 hours. She worked that day.

[21] On the morning of 15 February, and prior to going to work, the Holter was removed.

[22] On the afternoon of 15 February and whilst on shift Ms Lyons and other store employees were advised without notice that the Mudjimba store was immediately closing.

[23] There is a dispute as to whether Ms Lyons was offered but rejected rostered work at another store on the Sunshine Coast (Birtinya) and chose to leave or abandoned her employment (the employer's case), or was dismissed (Ms Lyons case).

[24] On 16 February Ms Lyons attended an appointment with her job search provider. Following that appointment she went to a nearby Centrelink office given her unemployed status.

[25] Upon her employment ending, Ms Lyons considered her treatment unfair.

[26] On 20 February Ms Lyons saw Dr Vogel[3] and obtained the results of the Holter monitor. Dr Vogel referred her to a cardiologist, Professor Stanton.[4] An appointment with the cardiologist was scheduled for 22 March.

[27] On the morning of 26 February Ms Lyons felt unwell with palpitations and a tight chest. She rang for an ambulance. She was taken to the Nambour hospital where she was admitted under observation during the day. At the end of the day she was discharged and advised to see Dr Vogel to discuss the results of tests done that day.

[28] On 2 March Ms Lyons saw Dr Vogel[5] and discussed the hospital visit and results of the tests with him.

[29] On or about 13 March 2023 Ms Lyons decided to explore her unfair dismissal rights. In her evidence Ms Lyons was vague as to exactly when she did so. In evidence she initially speculated that it was perhaps one or two weeks after her employment ceased but also recalled being told at the time she did so that she was already past the 21-day period. She said it occurred on the day she telephoned a fair work agency and texted Mr Barlow. Mr Barlow produced the text exchange. The texts show that occurred on 13 March 2023. I find that it was on 13 March that Ms Lyons first took steps to advance her unfair dismissal interests.

[30] On 13 March 2023 Ms Lyons logged onto the web site of a 'fair work' agency and located the phone inquiry number. Ms Lyons telephoned the agency. Although in her evidence Ms Lyons believed the agency to have been the Commission, given the terms of the text she received from the agency[6] and her text that day to Mr Barlow,[7] it is readily apparent that she spoke to an officer of the Fair Work Ombudsman rather than the Commission. She was informed of the right to make an unfair dismissal application. She was informed that this needed to be done within 21 days of a dismissal. It was suggested to her that she find out from her former employer how many persons it employed.

[31] Immediately following the telephone call Ms Lyons sent a text message to Mr Barlow seeking the information, telling him she had been asked by the Fair Work Ombudsman to do so. Mr Barlow asked why she was seeking that detail. She replied "I'm taking action for redundancy". Mr Barlow declined to provide the information without himself being asked by fair work to do so.[8]

[32] That same day (13 March) and after receiving Mr Barlow's response, Ms Lyons telephoned the Ombudsman back and spoke to a different inquiries officer. She was again informed of the right to make an unfair dismissal claim. She asked how to go about that. She was told that she needed to complete a form F2. She asked for the form to be sent to her. An officer of the Ombudsman then sent Ms Lyons the unfair dismissal form that day together with a text that read:[9]

Here is some helpful information from the Fair Work Commission. You can use this page to apply for advice through the Workplace Advice Service.

[links to fwc.gov.au 'Legal Advice from the Workplace Advice Service' and 'What is Unfair Dismissal']

Below is a page for the deadlines of applications through the Fair Work Commission, and circumstances that can allow a late submission.

[33] Ms Lyons did not immediately populate the form. She sent it to her partner the next day.

[34] On or around 16 March Ms Lyons decided to proceed with her unfair dismissal claim. She believed that she needed to print off the form and complete it by hand. She did not have a printer. She asked her partner to do that for her.

[35] On 16 March Ms Lyons was given the hard copy form by her partner. Ms Lyons immediately completed it, by hand.

[36] However, Ms Lyons did not immediately send the completed form to the Commission. She was unsure how to do that electronically, and over the next four days asked her partner how to do so.

[37] At 10.46am on 20 March, after being told by her partner how to send the form by email, Ms Lyons emailed the unfair dismissal application (as well as a request for a fee waiver) to the Commission at 10.46am (to the Commission's FOI email address, and addressed to the 'Privacy Officer').[10]

[38] In the weeks following making her application, Ms Lyons continued to receive treatment for her medical condition. She had an echocardiogram and ECG before seeing Professor Stanton on 22 March.[11] She had a 7-day Holter fitted on 5 April and removed on 12 April.[12] At the date of hearing, she had a follow-up appointment with Professor Stanton on 19 April. Eye surgery that had been scheduled for 18 April was cancelled.

[39] Ms Lyons submits that time should be extended because the circumstances were exceptional.

[40] Ms Lyons says that she was unable to make the application within time because her medical condition needed to be given priority.

[41] Ms Lyons submits that she had a verified medical condition beyond mere stress and anxiety that was under medical supervision and treatment in the weeks following her employment ending, and during the delay period.

[42] Ms Lyons submits that when she was well enough, and with the assistance of her partner, she made the application.

[43] Ms Lyons submits that she followed the process of making an unfair dismissal application as well as she could, given her medical condition.

[44] Ms Lyons submits that the employer should not have been surprised that a claim was made because she had put the employer on notice some weeks earlier.

[45] La Moda Boutique submit that the circumstances for the late lodgement are not exceptional and time should not be extended.

[46] La Moda Boutique submit that Ms Lyons' medical condition did not incapacitate her such that she could not have made an application within time.

[47] La Moda Boutique submit that as Ms Lyons was well enough to go about her daily business then she was well enough to complete and send an application within time.

[48] La Moda Boutique submit that even after knowing about the 21-day deadline Ms Lyons still delayed filing.

[49] La Moda Boutique submit that whilst Ms Lyons contacted Mr Barlow before making the application, she did not specifically say that she was claiming unfair dismissal. She simply asserted that she had a case about redundancy.

[50] La Moda Boutique submit that Ms Lyons' application on merit is weak because she was offered work in another store but chose not to take up that roster. La Moda Boutique submit that its further jurisdictional objection is strong, as is its argument on merit.

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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."

[52] Being twelve days out of time, Ms Lyons' application can only proceed if she establishes "exceptional circumstances" within the meaning of s 394(3).

[53] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[13]

[54] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant.[14] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[15]

[55] I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."[16]

[56] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[17]

[57] I now consider each of the factors in s 394(3).

[58] The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[18] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, though it is ultimately a question of degree and insight.[19]

[59] However, a reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[20] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[21]

[60] In this matter, the delay period is the twelve days between 9 March and 20 March 2023 inclusive.

[61] Ms Lyons' explanation for the delay is her medical condition. In her application she expressed it this way:[22]

"One the same day as my dismissal I had just come from having a "Holter monitor" removed from wearing for a 24 hour period. After that I lost my job on the spot and have since found out I have a secondary AV Block in my heart and have been attending cardiologist appointments."

[62] In her subsequent submission Ms Lyons stated:[23]

"On the day my work closed without any notice I had just had the Holter Monitor removed from wearing for 24 hours and had follow up consultations. I was taken by ambulance to Nambour Hospital on the 26th of February due to chest pain and heart palpitations.

These are my reasons for being late with meeting deadlines to come for help and support."

[63] Without being exhaustive, the general approach adopted by the Commission to considering whether a delay based on a health condition is an acceptable or reasonable explanation is to consider whether the evidence demonstrates that the condition had a material impact upon the applicant's capacity to lodge the application within the statutory time limit.[24]

[64] Whilst it is not a requirement per se to provide medical evidence of exceptional circumstances arising from illness, 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.[25] An applicant's self-assessment of their alleged incapacity is unlikely to be sufficient.[26]

[65] No medical evidence was called by Ms Lyons. There is documentary evidence of medical appointments and monitoring but not medical evidence verifying period(s) of incapacity or impairment during the delay period or prior.

[66] However I am generally satisfied on the basis of her evidence and the documentary material confirming medical appointments and attendances that Ms Lyons had a medical condition that went beyond mere stress and anxiety following her employment ceasing. She had experienced pre-existing episodes of palpitations and a week prior to ceasing work had consulted her general practitioner about them. At the time of ceasing work, and in the three weeks that followed and throughout the delay period the condition continued to be monitored and diagnosed and Ms Lyons felt generally unwell. She experienced some further episodes including one hospital visit on 26 February 2023 when she remained under observation during the day before being discharged back into the care of her private practitioners.

[67] I find that a genuine medical condition existed that was being monitored and treated. The issue in this proceeding is whether that condition materially impacted Ms Lyons' capacity to lodge the application within the statutory time limit.

[68] I find that it did so but only to a limited extent. It did so at the time of the episodes occurring, whilst Ms Lyons was attending appointments and undergoing tests (including at the hospital) and during the periods she was feeling unwell.

[69] However the evidence also points to the fact that around these episodes Ms Lyons was able to function and undertake necessary and essential tasks. In the period following her employment ceasing Ms Lyons travelled outside her home and met with her job search adviser, went to Centrelink, looked at websites, spoke twice to the Fair Work Ombudsman, went grocery shopping, attended medical appointments and looked after her household.

[70] In the absence of more specific medical evidence, I find that whilst it was understandable that Ms Lyons was concerned and gave priority to her state of health, during the delay period at least Ms Lyons had capacity to perform necessary tasks including making an application. In this period (9 to 20 March) Ms Lyons had no medical appointments and was not on a Holter monitor. She had been discharged from her day attendance at the Nambour Hospital ten days earlier.

[71] It was not until 13 March 2023, some four weeks after her employment ceased and four days beyond the statutory time limit that Ms Lyons took active steps to inform herself of her employment rights.

[72] Having been advised on 13 March 2023 that a 21-day rule applied and that she was already out of time by four days, and having then been sent the application form, there is no acceptable reason advanced why the application was not filed for another week. Whilst it is understandable that Ms Lyons wanted assistance from her partner, the urgency of the situation passed her by. Even once she completed and signed her application on 16 March, another four days passed before it was sent.

[73] Considered overall, the reason for the delay is that Ms Lyons gave priority to her medical condition. However, in only in a limited way did that condition materially impair her from filing the application within time. Ms Lyons put it this way in her closing submission:[27]

"Health comes first. Had to deal with that first...[I] followed the rest of the process as I was able."

[74] Ms Lyons is not to be criticised for giving priority to her health. However, opportunities reasonably available to her to advance her employment interests were allowed to pass by including during the delay period.

[75] Health concerns and monitoring and assessing ones health in the wake of employment ceasing is not of itself unusual. The nature and extent of the incapacity to advance one's employment interests within time is the relevant consideration in this matter. The reason for the delay weighs somewhat but, in the absence of medical evidence of the extent of period(s) of incapacity or impairment during the delay period or prior, only somewhat, in favour of a finding of exceptional circumstances.

Awareness of the dismissal taking effect (s 394(3)(b))

[76] Though Ms Lyons was taken by surprise by the announcement of the immediate store closure, she knew that she had finished work on 15 February 2023 and was paid for but did not work the following two days.

[77] That Ms Lyons knew her employment ended on the day it ended makes this a neutral consideration.

[78] Ms Lyons' evidence was that on 13 March 2023 she told Mr Barlow by text that she had spoken to the Fair Work Ombudsman and that she was "taking action for redundancy".

[79] Although Mr Barlow did not understand this to mean an unfair dismissal claim, objectively considered, the employer was put on notice from that time of an intended legal action arising from what had occurred a month prior. Clearly at law, a redundancy is a dismissal and able to be litigated as an unfair dismissal action under the FW Act (although a genuine redundancy as defined cannot be an unfair dismissal).[28]

[80] However, at the time Ms Lyons gave Mr Barlow notice of an intended action she was already out of time, by four days. Even had she made an application that day, she would have needed an extension of time for her application to proceed. In that sense the materiality of the advance notice is diminished.

[81] This factor weighs somewhat, but only somewhat in favour of a finding of exceptional circumstances.

[82] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[29]

[83] If time is extended, a claim would have to be further responded to by the employer, involving time and cost. However, that prejudice, whilst real, is not unique.

[84] This notwithstanding, the absence of prejudice would not itself be a reason to grant an extension.[30]

[86] A hearing would concern a further jurisdictional question, whether Ms Lyons was dismissed.

[87] There is some evidence before me to support the proposition that Ms Lyons was offered work in a different store but declined on the basis that she no longer trusted the employer after the lack of notice of the store closure. However that is insufficient for a provisional finding that the further jurisdictional issue is merited. Evidence concerning the terms of the employment contract and whether it was store specific would be relevant, and is not before me. Thus, I form no view, not even a provisional one, on the jurisdictional issue.

[88] Similarly, the merit of the claim is an open question. Even if the closure of the store was for rational business reasons, the notice (or lack thereof) and/or the reasonableness of any alternative working location or roster would be relevant considerations.

Fairness between persons in similar position (s 394(f))

[90] In this matter, this is not a relevant factor.

[91] The period of delay being twelve days, in the context of a statutory twenty-one day time frame, is not insignificant.

[92] The explanation for delay weighs somewhat but, in the absence of medical evidence of the extent of period(s) of incapacity or impairment during the delay period or prior, only somewhat in favour of a finding of exceptional circumstances. Similarly, the fact that Ms Lyons advised the employer a week before filing that she was intending to challenge the termination is somewhat in her favour but only to a limited extent given that she was already out of time by that stage.

[93] Considered overall, and having regard to the statutory requirement that circumstances must be exceptional in order to enliven the discretion to extend time, I am not satisfied that the circumstances are exceptional. Whilst Ms Lyons is to be given credit for managing her health, she failed to take the reasonably available opportunities to advance her employment interests. Even when informed of the statutory time limit for an unfair dismissal claim and that she was out of time, Ms Lyons took a further week to file her application. She did not act with sufficient urgency during the delay period.

[94] There being no exceptional circumstances, the time for lodging the application cannot be extended.

[95] As Ms Lyons' application is out of time and as the time for lodgement has not been extended, it is unable to proceed. The application is dismissed. An order[31] to that effect is issued in conjunction with the publication of this decision.

Mr M Barlow, with Ms M Castellano and Ms R Leatherday, of and on behalf of The Trustee For The Barlow Family Trust T/A La Moda Boutique

[1] Mr Barlow did so on 18 April 2023 (R1); Ms Lyons on 19 April (A11)

[7] R1 Text exchange 13 March 2023 1.08pm (attached to email sent to the Commission by Mr Barlow on 18 April 2023 and admitted by consent)

[13] Smith v Canning Division of General Practice [2009] AIRC 959

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

[15] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316

[16] [2011] FWAFB 975 "Nulty" at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers [2010] FWAFB 7251 at [5]

[17] John Mamur v Coles Group Supply Chain Pty Ltd [2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council [2021] FWCFB 167 at [6]

[18] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36]

[19] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [35]- [45]

[20] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288

[21] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] - [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149

[24] Roberts v Westech IT Solutions Pty Ltd [2014] FWC 4226; Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting [2015] FWCFB 3435, [15] - [16]; Reeve v PKF (Gold Coast) HR Services Pty Ltd [2023] FWC 488, [61]

[25] Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group [2021] FWC 3903, [24]

[26] Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting [2015] FWCFB 3435

[27] Recording of Hearing, 18 April 2023, 1:30:06-1:30:13

[29] Brisbane South Regional Health Authority v Taylor [1996] HCA 25

[30] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

[31] PR761462

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