s.394 - Application for unfair dismissal remedy

• [1] On 31 August 2022, Mr. Thulani Joni Nkomo ceased working at Robinvale District Health Services (RDHS).

• [2] On 18 September 2025, he made an application claiming he was unfairly dismissed from what he alleged was his employment with RDHS. Unfair dismissal applications are required to be made within 21 days of the dismissal taking effect. His application was 1093 days late.

• [3] The RDHS made two objections to this application:
  • Mr. Nkomo did not withdraw from a proceeding involving dismissal before the Victorian Equal Opportunity and Human Rights Commission before he made his unfair dismissal application. His application is therefore statute barred; and
  • The unfair dismissal application he made was 1093 days out of time.

• [4] I will now deal with each of these objections.

IS THE APPLICATION OF MR. NKOMO STATUTE BARRED?

• [5] The submissions of RDHS include a letter dated 24 June 2025 from the Victorian Equal Opportunity & Human Rights Commission (VEOHRC) which attaches a complaint apparently commenced by Mr. Nkomo. In the recitation of facts in that complaint, he states "I was forced to resign."[1]

• [6] The RDHS submissions also attach a letter dated 7 August 2025 from the VEOHRC which states "the Commission will now close the matter pursuant to s115(2)(a) of the Equal Opportunity Act."[2]

• [7] On 15 October 2025, RDHS received an email from VEOHRC which read (amongst other things): "The complaint was closed on 7th August 2025 as the Commission considered that it could not be resolved by dispute resolution due to the position of the parties. Given this [Mr. Nkomo] did not withdraw his complaint however the Commission's decision to close the matter means it is no longer ongoing."[3]

Relevant provisions of the Equal Opportunity Act 2010 (Vic)

• [8] Section 115 of the Equal Opportunity Act 2010 (Vic) provides (with emphasis added):

(1) Dispute resolution starts when the person bringing the dispute

informs the Commission that he or she wishes to proceed with dispute resolution.

(2) Dispute resolution ends when the earliest of the following occurs -

(a) the Commission declines to provide or to continue to provide dispute resolution under section 116;

(b) a party withdraws from dispute resolution under section 118;

(c) the parties to the dispute reach agreement about the subject matter of the dispute.

• [9] Section 118 of the EO Act (Vic) provides:

(1) A party to a dispute may withdraw from dispute resolution at any time by informing the Commission that the party no longer wishes to participate in the dispute resolution.

(2) Withdrawal from dispute resolution does not prevent a person making an application to the Tribunal under this Act or commencing proceedings in another jurisdiction.

• [10] On the material before me, I am satisfied:
  • Mr. Nkomo filed a complaint in VEOHRC which included the circumstances of the cessation of his employment.
  • Some conciliation took place between the parties.
  • On 7 August 2025, the VEOHRC notified RDHS that it had declined to continue to provide dispute resolution services.
  • At the time VEOHRC declined to provide further dispute resolution services Mr. Nkomo had not withdrawn from dispute resolution under s 118.

• [11] The question is, as Mr. Nkomo did not withdraw from dispute resolution under the EO Act, does this bar him from making an unfair dismissal application under the Fair Work Act?

The statutory bar to the pursuit of multiple actions under the Fair Work Act

• [12] Division 3 of the Act provides a regime which prohibits a person from making an application for unfair dismissal if certain actions are not taken with respect to other proceedings before the unfair dismissal proceeding is commenced.

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.

(a) an unfair dismissal application has been made by the person in relation to the dismissal; and

(i) been withdrawn by the person who made the application; or

(iii) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.

(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.

732 Applications and complaints under other laws

(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and

(i) been withdrawn by the person who made the application; or

(2) An application or complaint under another law is an application or complaint made under:

(a) a law of the Commonwealth (other than this Act); or

• [16] Section 725 of the Act provides a general rule that a person must not make an application of a kind referred to in any one of sections 726 or 732 in relation to the dismissal if any other of those sections applies.

• [17] Section 729 refers to unfair dismissal applications and s 732 refers to applications or complaints in relation to the dismissal under "any other law" that have not been withdrawn by the person who made the application or failed for want of jurisdiction.

• [18] An application made under the Equal Opportunity Act (Vic) in relation to a dismissal is a complaint under another law under s 732 of the FW Act. Mr. Nkomo made an application to VEOHRC which refers to his "forced resignation". It follows it is a complaint in relation to the dismissal. At the time the conciliation was brought to an end by VEOHRC, the complaint was not withdrawn by Mr. Nkomo under s 118 of the EO Act.

• [19] Section 725 of the Act may operate as a bar to Mr. Nkomo's application being made because the VEOHRC complaint had not been withdrawn or failed for want of jurisdiction when his unfair dismissal application was filed.

• [20] Part 8 Division 1 of the EO Act provides a regime for applications in a dispute resolution process before the VEOHRC. Part 8 Division 2 provides an entirely separate regime for dispute resolution by way of a hearing before the Victorian Civil and Administrative Tribunal (VCAT). Section 122 of the EO Act provides that a person can make an application to VCAT even if they had not brought a dispute to VEOHRC for dispute resolution.

• [21] As VEOHRC had declined to provide further dispute resolution to Mr. Nkomo and RDHS under s 115(2)(a) of the EO Act, its jurisdiction was at an end. VEOHRC was functus officio. Mr. Nkomo did not commence a proceeding in VCAT. At the time Mr. Nkomo had made his application for an unfair dismissal proceeding, the VEOHRC proceeding had ended.

• [22] The effect of ss 725, 729 and 732 is that an unfair dismissal proceeding cannot be commenced unless the VEOHRC application has been "withdrawn by the person who made the application" [s 732(b)(i)] or it "has failed for want of prosecution" [s 732(b)(ii)].

• [23] At the time Mr. Nkomo commenced his unfair dismissal proceeding he had not (and could not) withdraw his application in VEOHRC. On a strict reading of those provisions together with the general rule in 725, as he had not withdrawn his VEOHRC application, Mr. Nkomo is prohibited from making his unfair dismissal application.

• [24] It could be argued the mischief to which Division 3 of the Act is directed is to prevent an applicant from pursuing two live proceedings at the same time. A purposive interpretation of s 732(1)(b) could be that it requires the withdrawal of a proceeding which remains on foot. On this interpretation, s 732 does not require an applicant to withdraw from a proceeding that has been ended by VEOHRC itself.

• [25] This matter is not beyond doubt, but I prefer an interpretation based on the literal words of s 732 which requires that proceedings are withdrawn by the person who made the application before commencing an unfair dismissal application. The Commission cannot interpret its own statute according to the procedural quirks of another jurisdiction. Sections 732 and 725 prescribe that the other proceedings must have either been withdrawn or failed for want of prosecution in order to avoid the operation of the statutory bar in s 725.

• [26] I therefore conclude that as Mr. Nkomo had not withdrawn his VEOHRC complaint as required by s 732 the Act, s 725 operated as a bar to his unfair dismissal application being made. This application is therefore dismissed.

• [27] As this conclusion is not beyond doubt, I will also consider whether I should extend the time for Mr. Nkomo to make an application.

SHOULD I EXTEND TIME FOR THE FILING OF THE APPLICATION?

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

• [29] For the following reasons, I have decided not to grant an extension of time for the making of this application.

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

1. The 21-day period does not include the day on which the dismissal took effect.[4]

• [31] Mr. Nkomo's application was filed on 18 September 2025. It was made 1093 days late. I therefore need to consider whether to extend the period to make the application.

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

(b) when Mr. Nkomo first became aware of the alleged dismissal after it had taken effect;

(c) any action taken by Mr. Nkomo to dispute the alleged dismissal;

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

(f) fairness as between Mr. Nkomo and other persons in a similar position.

• [33] Each of these matters must be considered in assessing whether there are exceptional circumstances.[5] Exceptional circumstances are out of the ordinary course, unusual, special or uncommon. The circumstances do not have to be unique, unprecedented or rare.

• [34] Mr. Nkomo gives as his primary reason for the delay the effects of his Autism Spectrum Disorder (ASD). He also describes "several intersecting layers of complexity rooted in in the Applicant's background and the hidden nature of his ASD".

• [35] In his written submissions, Mr. Nkomo argues the delay was caused by his ASD which he says:

"...led to significant cognitive and emotional overload following the dismissal. The dismissal triggered an autistic meltdown and prolonged masking exhaustion, delaying my awareness and capacity to take formal action. I first attempted to dispute the dismissal informally on 30 August), but the sensory and executive functioning challenges associated with ASD (e.g., difficulty prioritizing tasks under stress) prevented timely filing."[6]

• [36] Mr. Nkomo argues "this is not mere oversight but a direct manifestation of my disability, evidenced by the enclosed reports." Mr. Nkomo quotes from a medical report of Ms Skentzoz dated 27 March 2024,[7] which he says "notes vulnerabilities including "impaired social communication and emotional regulation," which align with the post-dismissal period".[8]

• [37] He also refers to a Neuropsychological Report of Dr. Evrin March dated 7 May 2025, a copy of which he filed. He claims this Report:

"...illustrates processing delays, as during the assessment itself, the Applicant required additional time to verify information via emails and documents before accepting an explanation about the assessment setup, demonstrating rigidity and slower adaptation to new information common in ASD (Appendix B, page 4). The report also noted the Applicant's superior language and speech skills, attributing this to his father requiring him to read the newspaper daily, which sharpened his presentation abilities. However, the neuropsychologist did not account for parental interventions resembling speech therapy, and the proficiency came with significant effort, challenging the report's assertion of ease."[9]

"These mirror how he processed the dismissal - internalizing it and focusing on distancing himself from the misunderstanding rather than contesting it immediately. The assessment process was extended beyond standard durations due to the complexity of [his] presentation, including a longer-than-usual focus on developmental history, psychometric personality/psychopathology testing (1 hour), clinical interview (2 hours and 15 minutes cognitive testing excluding breaks), and an additional 1-hour 30-minute videolink session for further clinical interview. These accommodations highlight the Applicant's need for extended processing time in high-stakes situations, such as responding to the dismissal."[10]

The AHPRA Health Assessment on the ASD Diagnosis and Symptoms[11]

• [39] On 4 July 2025, AHPRA reached a decision which assessed Mr. Nkomo's health and capacity to continue as a nurse. The assessment included a summary of the clinical assessments made by medical practitioners, including the ASD diagnoses. This decision refers to three medical reports relevant to his ASD diagnosis:
  • the report of Ms Skentzoz dated 27 March 2024 (the Skentzoz report).
  • The report of Dr Fiona Aldridge, Clinical Psychologist & Manager of Aspect Assessments dated 24 April 2024 (the Aldridge Report); and
  • the Report of Dr Evrim March dated 16 April 2025 (the Dr. March report)

• [40] The AHPRA assessment referred to the Skentzoz report and stated:

In their report dated 27 March 2024, Ms Skentzos confirmed your presentation met the DSM-5-TR criteria for a diagnosis of Autism Spectrum Disorder (ASD). Based on the assessment, you require substantial support (Level 2) in terms of your social interaction and social communication difficulties and (Level 1) support in terms of your restricted and repetitive interests, activities and behaviours. Ms Skentzos made recommendations that you seek funding under the National Disability Insurance Scheme, financial support from Centrelink, regular psychology sessions, regular review with a general practitioner and that you would benefit from additional support for entering and maintaining suitable employment.[12]

• [41] The assessment also referred to the Aldridge Report:

Dr Fiona Aldridge Clinical Psychologist & Manager of Aspect Assessments confirmed in their letter dated 24 April 2024, the diagnosis of ASD and noted "Given his autism, as well as his other diagnoses and differences, Thulani has a number of support needs. In particular, he will require support and reasonable adjustments to allow him to complete further study or gain and maintain employment."

While both the Psychological Assessment Report and the letter from Dr Fiona Aldridge provided a diagnosis of ASD and outlined a number of resulting support needs including support for entering and maintaining suitable employment, they did not address your fitness to practise as a registered nurse.[13]

• [42] The AHPRA assessment also referred to the report of Dr. March:[14]

Regarding the Autism Spectrum Disorder (ASD) assessment, I am curious about how the ASD diagnosis was reached, as some aspects of the diagnosis are inconsistent with the detailed clinical interview and Mr. Nkomo's presentation. Further, even if the ASD diagnosis is applicable, in my opinion, the presentation and developmental history do not support a level 2 severity (i.e., requires substantial support) in social interaction and social communication domain of ASD.

I note that the ASD diagnosis was provided without any consideration of additional differential diagnoses. The detailed developmental history raises a possible diagnosis of attention deficit hyperactivity disorder (ADHD). The developmental history is also noteworthy with regard to "disruptive behaviours", which may warrant further diagnostic considerations.

On current assessment, MMPI-2-RF personality and psychopathology (mental health symptoms) testing comprised in-built symptom validity measures. The test profile was invalid due to fixed inconsistent reporting. The invalid response style raises concerns about the 2024 psychology assessment, during which no symptom validity scales were used. The structured interview and test responses in the 2024 assessment were based on self-report. Further, there was no informant report (information from a significant other). Overall, the validity of the test responses remains unclear.

The 2024 assessment was undertaken with ASD diagnosis in mind. While exploring ASD, key differential diagnoses do not appear to have been considered. Detailed clinical interview and developmental history on current assessment raise potential competing diagnoses, the evaluation of which requires psychiatry opinion.

I remain uncertain about the diagnosis of ASD, and I will not exclude it but defer it to psychiatry opinion with consideration of differential diagnoses. In any case, even if ASD is confirmed, I disagree with the moderate severity (level 2) attributed to social interaction and communication domains.

During current assessment, Mr. Nkomo denied any language delays, any communication deficits, and any resultant academic delays. Consistent with this, on cognitive testing, he had solid performances in verbal skills of intellect (reasoning, general knowledge) and very good verbal fluency. I also note his clinical presentation. I continue to remain unconvinced about the level 2 severity for social communication and interaction.

As a neuropsychologist with extensive Area Mental Health Service experience, I have difficulty reconciling the ASD diagnosis in the report with Mr. Nkomo's presentation and history on current assessment, and in the least, disagree with proposed severity...As stated before, I defer the final diagnostic opinion to the psychiatrist, who will consider differential diagnoses in this case.

The Dr. March report itself on cognitive impairment

• [43] Mr. Nkomo filed a full copy of the Dr. March report which deals with the question of cognitive impairment of Mr. Nkomo.[15] At paragraph 79 of that report, Dr. March opined under the heading "Cognitive Profile" (with emphasis added)

"Across cognitive domains, Mr. Nkomo demonstrated a select significant cognitive weakness in the area of processing speed of intellect. He was considerably slow (borderline range) in processing information, this falling around the lowest 5% of his age group. It was noted that the slow processing was contributed by an underlying slow psychomotor speed. Otherwise there was no slowing on mental based speed tasks; that is speed was efficient in skills that required mental processing and problems solving."

• [44] Under a heading "Does Mr. Nkomo have a physical or mental impairment, disability or condition or disorder which detrimentally affects or is likely to detrimentally affects his capacity to process his profession" [of Nursing] Dr. March noted (with emphasis added):

"From a cognitive perspective, Mr. Nkomo does not have cognitive disorder or severe cognitive impairment. He only has the specific weakness as explained above [part of which I have quote above] ...Mr. Nkomo is otherwise a man of generally average abilities, and reasonably intact cognitive status. The diagnosis of ASD, if correct does not have an impact on cognition."[16]

• [45] In the course of the hearing, I asked Mr. Nkomo why it took until 2024 to seek a diagnosis of his condition. He explained because of his cultural background, he did not look at the symptoms of his condition from a medical perspective. He sought what might be described as alternative remedies and explanations beyond Western medicine.

"****Intersecting Layers Of Complexity Which Compounded The Delay Rooted In His Background And The Hidden Nature Of ASD"

• [46] Mr. Nkomo lists ten factors which compounded the delay "rooted in his background and hidden nature of ASD:" These factors are:
  • Immigrant status.
  • Lack of education by parents and cultural beliefs.
  • Fear of dismissal based on past experience.
  • Hidden nature of autism.
  • Financial difficulties after forced resignation.
  • Intersectionality of race, gender, build and disability.
  • Lack of self-advocacy training.
  • Impact of public record and epistemic justice.
  • Misinterpretation of honest explanations.
  • Autistic Burnout from continued pressure.

Consideration of Mr. Nkomo's reasons as a factor

• [47] Mr. Nkomo argues his ASD and its symptoms are so severe that it took him three years to make an application.

• [48] The principals for dealing with mental health as a reason for delay has been helpfully

summarised by Deputy President Easton in Bianco Mamo v. ICLED Australia Pty Ltd[17] which deals with an extension of time to make an unfair dismissal application. In that case, the Deputy President, after a considering the decisions in this area, summarised the approach as follows:

• Stress, shock, confusion and similar conditions are not exceptional circumstances in

• 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

• 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

• An applicant's self-assessment of their alleged psychological incapacity is unlikely

• [49] The medical opinions before me conflict as to Mr. Nkomo's diagnosis of ASD and as to the severity of the symptoms he suffers. Dr. March assesses Mr. Nkomo is "a man of generally average abilities with reasonably intact cognitive status."

• [50] In order for a medical condition to justify an extension of time of three years, it would require consistent medical assessments of both the condition and its effects. The medical opinions before me are divided on Mr. Nkomo's ASD diagnosis and on the severity of its effects. Without a clear diagnosis and uncontested medical opinion about the diagnosis and the effects of the condition, Mr. Nkomo's condition cannot provide a sufficient reason for a delay of this length.

• [51] The fact Mr. Nkomo comes from a background where medical conditions are explained by factors outside those recognised by Western medical science cannot be regarded as uncommon in an immigrant nation.

"Intersecting Layers of complexity which compounded the delay"

• [52] I will address each of these in turn:

• Immigrant Status: A third of Australian citizens were not born here. This cannot be regarded as special.
• Lack of education by parents and cultural beliefs: This is related to his general reason in relation to his cultural beliefs. The lack of formal education of his parents cannot excuse or explain a delay by Mr. Nkomo himself. Cultural beliefs outside of Western medicine to explain illnesses or afflictions cannot be regarded as rare.
• Fear of dismissal based on past experience: It is routine for persons who have had their employment terminated to fear it will happen again.
• Hidden Nature of Autism: This relates to his condition which I have dealt with earlier.
• Financial difficulties after forced resignation: An utterly routine circumstance of dismissal.
• Intersectionality of race, gender, build and disability: The gravamen of this factor is that Mr. Nkomo was discriminated against because of these attributes. He says, "such stereotypes continue to contribute to ...a reluctance to challenge unfairness". There is insufficient evidence to support this as a reason.
• Lack of self-advocacy training: Mr. Nkomo says "without prior self-advocacy training, he could not articulate what caused his autistic shutdowns and meltdowns". Given the divided medical opinion on his ASD and its effects, this cannot provide a sufficient reason for the delay.
• Impact of public record and epistemic justice: Mr. Nkomo was involved in another proceeding in 2011 in which his "lived experience and disability were disregarded" and resulted from "neurodivergent behaviours are misattributed to misconduct rather than disability". This "layer of complexity compounding the delay" arises from his claims about his ASD and its effects which I have dealt with earlier.
• Misinterpretation of honest explanation: This is not an uncommon complaint after a decision has been made to dismiss an employee.
• Autistic burnout from continued pressure: Once again, this derives from his medical condition which I have dealt with earlier.

• [53] An application for an extension of time for three years requires very compelling reasons for the delay. The divided medical opinion on his ASD diagnosis and its effects do not provide an adequate foundation for a finding it prevented him from filing the application for three years

• [54] Further, neither his cultural background nor any of the "layers of complexity that compounded the delay" provide an adequate reason for the delay. None of these reasons, either individually or collectively, provide an adequate reason for the delay.

• [55] This factor counts against a finding of exceptional circumstances.

WHEN DID MR. NKOMO FIRST BECOME AWARE OF THE DISMISSAL AFTER IT HAD TAKEN EFFECT?

• [56] Mr. Nkomo makes the following submissions on this factor:

"The Applicant became aware of the dismissal on the date it took effect, 1 September 2022, via zoom meeting on 31 August 2022. However, due to ASD-related processing delays, full comprehension and acceptance took several weeks, during which I was in a state of shutdown (as described in Appendix C). This factor supports extension, as the effective "awareness" was hindered by disability. The dismissal could not be connected to a disability without proof of a diagnostic letter and I couldn't understand it so I didn't act upon it."

• [57] RDHS submits Mr. Nkomo was "aware of the conclusion of his employment on 31 August 2022" where Mr. Nkomo provided his resignation for personal reasons which was accepted by RDHS on that date.

• [58] Mr. Nkomo was aware of the cessation of his employment on 31 August 2022 when he tendered his resignation. It follows he had the full benefit of the 21 days to file his application. This factor is a neutral consideration in an assessment of exceptional circumstances.

WHAT ACTION WAS TAKEN BY MR. NKOMO TO DISPUTE THE DISMISSAL?

• [59] In his written submissions Mr. Nkomo addressed this factor where he submitted.

"The Applicant did not seek prompt informal steps to dispute the dismissal because he felt intimidated by the contents of the disciplinary letter with the allegations as I saw that I could not defend myself against them so I just left to avoid any confrontation as it would jeopardise my future employment prospects. This was caused by the need to get away from this unsafe environment. Mr. Nkomo was not aware of the Fair Work process at the time. The shutdown and emotional dysregulation prevented him from multitasking so he left it until he had enough evidence to convince the commission as the truth does not die its lies that die."[18]

• [60] RDHS submitted Mr. Nkomo had taken no action to dispute the dismissal.

• [61] In his oral submissions Mr. Nkomo stated that in 2024, he had sent a copy of a medical report to RDHS with an accompanying e-mail. During the hearing I asked Ms. Brigante, the Manager of People & Culture at RDHS, about the email which attached the report. She stated:

"He sent an e-mail to us with a copy of the report. The e-mail explained that he had the condition and basically if we knew about his condition and had we taken all of that into account then maybe the situation would have gone different."

• [62] In the material before me, I have a letter dated 24 June 2025 from the Victorian Equal Opportunity & Human Rights Commission to RDHS which attaches an undated complaint completed by Mr. Nkomo in which he alleged discrimination by RDHS in the area of employment. In the body of the complaint, Mr. Nkomo alleges (amongst other things) he "was forced to resign". There is also a letter dated 7 August from VEOHRC to RDHS which stated, "conciliation was attempted" and the "Commission will now close the matter"

• [63] The material before me does not contain the 2024 e-mail by which Mr. Nkomo forwarded the medical report which included his ASD diagnosis to RDHS. On the basis of the oral submissions from Mr. Nkomo and Ms. Brigante it appears this 2024 correspondence falls short of action to contest the dismissal. Ms. Brigante said the e-mail attaching the medical report explained his condition and stated if RDHS had known about the condition then "maybe the situation would have gone different". This does not contest the dismissal.

• [64] From July 2025, RDHS was informed Mr. Nkomo had initiated a complaint before VEOHRC regarding discrimination in work which included the circumstances of the cessation of employment. This amounts to action to dispute the dismissal.

• [65] The only action Mr. Nkomo took to contest the dismissal was the initiation of his complaint before VEOHRC. Given the length of the delay and the length of time between the cessation of his employment and taking this action, it cannot count in his favour to support a finding of exceptional circumstances. It is unarguable, however, he took some action. I therefore consider this factor is a neutral consideration in an assessment of exceptional circumstances

WHAT IS THE PREJUDICE TO RDHS (INCLUDING PREJUDICE CAUSED BY THE DELAY)?

• [66] Mr. Nkomo considers that RDHS would suffer no prejudice if an extension of time was granted.

• [67] RDHS identifies four sources of prejudice:[19]

• The lengthy delay in the filing of the application.
  • Ms. Lyn Bland, the previous Director of Nursing of the Manangatang campus, who was instrumental in providing mentorship, supervision to and addressing the performance issues with Mr. Nkomo during his employment with the RDHS, is no longer employed by it, and therefore may not be able to provide witness evidence.
  • RDHS has already participated in the conciliation proceedings concerning Mr. Nkomo's complaint to the VEORHC and incurred legal costs for representation in those proceedings; and
  • RDHS will incur additional legal costs in responding to the Unfair Dismissal Application which will impact it as a public multi-disciplinary service that is dependent on government funding."

• [68] In a recent Full Bench appeal from a decision of Commissioner Ryan in Shiralee Dollar and RC Group Holding,[20] the Bench did not disturb the observation of Commissioner Ryan that "it is well settled a lengthy delay gives rise to a presumption of prejudice". The Full Bench observed: "That observation was reasonable in the context of a case where the delay in the Appellant filing her unfair dismissal application is 101 days, the observation is also consistent with the Full Bench in [GHD Pty Ltd v. Kevin Allan Black] where the relevant delay was 168 days." The delay in the filing of the application in this case is ten times the delay in Dollar.

• [69] RDHS provide examples of real prejudice should I grant the extension of time:
  • I accept the forensic prejudice RDHS will experience on the basis of Ms. Bland leaving the employment of RDHS. It is entirely predictable the ability of RDHS to defend itself will be compromised by a three-year delay.
  • I also accept RDHS will suffer the prejudice of additional legal expenses where they had already participated in a conciliation process before the VEOHRC.

• [70] The length of the delay of itself gives rise to a presumption of prejudice. I fully accept the forensic prejudice RDHS will suffer as a result of Ms. Bland leaving the employment with RDHS. I also accept the prejudice that RDHS must incur further legal costs after Mr. Nkomo has been through a conciliation process in VEOHRC.

• [71] Given the length of the delay and the prejudice RDHS will suffer, this factor is a significant one against Mr. Nkomo in an assessment of exceptional circumstances.

• [72] Mr. Nkomo argues this unfair dismissal proceedings has strong merits.[21] He states

• "The dismissal appears harsh, unjust, or unreasonable under s.387, as it stemmed from misunderstandings of the Applicant's ASD (e.g., perceived "dishonesty" or errors in explaining meltdowns and executive functioning challenges) as in prior 2014/2019 proceedings Mr. Nkomo was employed from 6 June 2022 during probation with no prior misconduct in this role, and reasonable adjustments (e.g., for masking and sensory overload) were not made, breaching obligations under the Disability Discrimination Act 1992.
• RDHS relied on the 2014 HCCC v Nkomo decision to question Mr. Nkomo's credibility, assuming his explanations of vulnerabilities (now confirmed as ASD-related) were untruthful. This decision, which found professional misconduct without considering undiagnosed ASD, empowered HR to dehumanize Mr. Nkomo by portraying him as lacking integrity.
• The 2024 psychological and 2025 neuropsychological reports prove these vulnerabilities were genuine manifestations of lifelong autism, not deception. RDHS used a misinformed assumption from the 2014 decision - a "lie" disproven by current evidence - to justify the 2022 termination, compounding discrimination and rendering the dismissal unfair. This reliance exemplifies epistemic injustice, where Mr. Nkomo's testimony about his experiences was discredited due to prejudice against neurodivergence, perpetuating systemic harms in disability contexts. A full hearing would likely find in the Mr. Nkomo's favor, warranting extension to avoid injustice.

• [73] RDHS relevantly argues:[22]

• The application is devoid of any merits. Mr. Nkomo was not dismissed from his employment. Mr. Nkomo voluntarily elected to resign from his employment, effective as of 31 August 2022 for personal reasons.

• • There is no evidence Mr. Nkomo was forced to resign as a result of the conduct or a course of conduct of RDHS. RDHS had implemented a fair process with Mr. Nkomo in terms of his probationary review by detailing the findings of the review and issues of concern, allowing Mr. Nkomo an opportunity to respond to these details, and allowing Mr. Nkomo to attend the meeting with RDHS with the assistance of a support person or representative, before making any decisions in relation to the outcome of the probationary review.[23]

• [74] The gravamen of Mr. Nkomo's claim of unfairness rests on discrimination on the basis of his condition of ASD. His argument seems to be because he had undiagnosed ASD, the process followed by RDHS up to the time he resigned amounted to a forced resignation.

• [75] On the material before me there is nothing to suggest RDHS knew he had ASD at any time during his employment.
• • On taking up employment with RDHS in June 2022 Mr. Nkomo had made a pre -employment declaration of preexisting medical conditions and did not disclose any medical conditions or injuries that impacted on his capacity to perform work.[24]

• The first time Mr. Nkomo brought his diagnosis of ASD to the attention of RDHS was in 2024, when he sent the e-mail which attached the medical report. The date of the first medical report of Ms. Skentzoz is 27 March 2024. This is years after his employment ended.

• [76] In those circumstances, the merits of his unfair dismissal application can only be described as poor. This factor must count against an assessment of exceptional circumstances.

FAIRNESS AS BETWEEN MR. NKOMO AND OTHER PERSONS IN A SIMILAR POSITION

"Granting extension is fair whose delay arises from a protected disability...compared to neurotypical applicants. Denying it would discriminate against those with ASD or mental health conditions, contrary to the Act's equity principles and human rights standards. Colleagues in similar positions (e.g., with disabilities) have received extensions in comparable FWC cases involving health-related delays."

"Any previous RDHS employee that may have challenged the termination of their employment ..., has either taken action to challenge the decision in a timely manner with the Respondent, or filed an unfair dismissal application within the jurisdictional time limit permitted under the Act."

Consideration of fairness as between persons in a similar position as a factor

• [79] The criterion of "fairness as between the person and other persons in a similar position" was considered by Deputy President Gostencnik in Morphett v. Pearcedale Egg Farm:[25]

"Cases of this kind will generally turn of their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may related to matters currently before the Commission or matters which have been previously decided by the Commission."

• [80] Mr. Nkomo's argument seeks to address the consideration of fairness between himself and other neurodivergent people. Applicants who seek an extension of time based on their neurodivergent condition have a range of capabilities in a myriad of different circumstances. On the basis of his submission, I cannot determine whether particular neurodivergent applicants are in a "similar position" to him or not, particularly following the approach of Deputy President Gostencnik in Morphett.

• [81] The class of people against which fairness is sought to be compared by RDHS is former employees who bring unfair dismissal proceedings against it. I know nothing of the circumstances of any of these persons to determine whether or not they are in a "similar position" to Mr. Nkomo.

• [82] No compelling submissions were made by either party with respect to this factor. It is therefore a neutral consideration for an assessment of exceptional circumstances.

IS THE COMMISSION SATISFIED THAT THERE ARE EXCEPTIONAL CIRCUMSTANCES, TAKING INTO ACCOUNT THE MATTERS ABOVE?

• Reasons for Delay: Mr. Nkomo has no adequate reasons for delay. He cannot rely on disabilities caused by his ASD because there is a disagreement in the medical reports before me as to his diagnosis of ASD and its effects. For a medical condition to provide a sufficient reason for a three-year delay, it requires more consistent medical reports. Mr. Nkomo's cultural background cannot provide an adequate reason. Nor do any of the "intersecting layers of complexity which compounded the delay". This factor counts against an extension of time under s 394(3)(a).

• Prejudice: Given the length of the delay in this case RDHS would suffer a forensic prejudice due to the change in personnel at RDHS in the ensuing three years. Further they would have to spend legal costs on a matter that has already been agitated by Mr. Nkomo in VEOHRC. This prejudice counts against an extension of time being granted under s 394(d).
• Merits: The merits of Mr. Nkomo's application are poor because he claims discrimination on the basis of a condition which his employer did not know he had. The merits of the application count against an extension of time being granted under s 394(3)(e).

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

• Notification of the Dismissal: Mr. Nkomo was notified of his alleged dismissal on 31 August 2022. He had the benefit of the full 21 days to file an application.
• Action taken to dispute the dismissal: I have found Mr. Nkomo disputed the dismissal in 2024 by the commencement of a proceeding in VEOHRC. Given the delay here is three years this action is insufficient to count in favour of an extension of time. This factor is therefore neutral.
• Fairness between persons: No compelling submissions were made on fairness arising between Mr. Nkomo and other persons in a similar position.

• [84] I conclude three factors count against a finding of exceptional circumstances: the lack of adequate reasons for the three-year delay, the prejudice that RDHS will suffer if I grant an extension of time, and the poor merits of the application. The other three factors are neutral to a finding of exceptional circumstances.

• [85] On balance, taking into account all the factors under s 394(3), I am not satisfied there are exceptional circumstances to justify an extension of time, particularly where the delay is 1093 days. This application is therefore dismissed.[26]

Paula Robinson of Workforce Legal Solutions on behalf of the Respondent

[1] Digital Commission Book (DCB) at pages 256-260.

1. [4] 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.

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

[7] Despite being referred to as an Appendix to his submissions Mr. Nkomo did not provide a full copy of this report to the Commission. It is however referred to in documents before the Commission.

[17] [2021] FWC 3903.

[20] [2025] FWCFB 122.

[23] Mr. Nkomo argues that in fact his probationary period had ended before the action was taken to end his probationary period.

[24] DCB at 218, Statement of Ms. Brigante at paragraph 8.

[25] [2015] FWC 8885 [29].

[26] PR793442.

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