Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - whether exceptional circumstances exist justifying an extension of time - no exceptional circumstances - application dismissed.

• [1] This decision concerns an application by Ms Tiffany Harrison (Ms Harrison or the Applicant) to extend the time for filing her unfair dismissal application pursuant to s.394(3) of the Fair Work Act 2009 (the Act).

• [2] Ms Harrison's employment with CFC Consolidated Pty Ltd (the Respondent) was terminated on 23 December 2024. Ms Harrison's application was lodged with the Fair Work Commission (the Commission) on 2 April 2025.

• [3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as allowed by the Commission considering the matters relevant under section 394(3).

• [4] In this instance, the period of 21 days concluded on 13 January 2025. The application was filed 100 days after the Applicant's dismissal took effect, making the application 79 days out of time. It is, therefore, necessary that the Applicant be granted an extension of time for her application to proceed.

• [5] The Applicant requests the Commission grant an extension of time for her application under s.394(3) of the Act.

• [6] Ms Harrison was employed by the Respondent from 22 February 2023 until her dismissal on 23 December 2024. There is no evidence before me about the role that was performed by the Applicant.

• [7] The Applicant said in her Form F2 that she had been dismissed for falsifying work hours. The Respondent elaborated on the reasons for termination in its Form F3, wherein it asserted that the Applicant had been dismissed for serious misconduct because she had "falsified timesheets to claim wages she was not entitled to on several instances between 20 November - 10 December 2024."[1] The Respondent then set out the dates and times of the seven occasions on which they say the Applicant falsified her timesheets by recording times at which she was not at work as she claimed.

• [8] The Respondent says that there was a meeting with the Applicant on 20 December 2024, during which Ms Harrison was offered an opportunity to respond to the allegations.

• [9] On 23 December 2024, the Applicant was dismissed and provided with a termination letter. The Commission has not been provided with a copy of the letter.

• [10] A handwritten Form F2 Unfair Dismissal Application was received by the Commission via post on 2 April 2025. The Form F2 was dated 2 January 2025.

• [11] A directions hearing was held on 17 April 2025. At that hearing, the Applicant submitted that she had sent an initial application by post to the Commission soon after she had completed and dated the application on 2 January 2025. Ms Harrison then said that when she had not had a response to the application, she telephoned the Commission sometime later and was informed that her application had never been received. Ms Harrison told the Commission that some weeks after the telephone call to the Commission she then sent another copy of the same Form F2. This was the copy received by the Commission on 2 April 2025.

• [12] My Chambers made enquiries to attempt to substantiate the contact Ms Harrison said she had with the Commission, however, there were no records of any calls from the Applicant's telephone number, as provided by the Applicant on her Form F2, between 1 January and 2 April 2025.

• [13] The parties were advised that if the Applicant's number was blocked or otherwise obscured, then a record of the call may be able to be located if the Commission was provided specific information about the time and day on which the Applicant contacted the Commission. The Applicant was invited to provide this information to the Commission to attempt to locate the record of her call. She did not provide further information to assist this enquiry.

• [14] The Applicant filed her materials in compliance with my directions, however after reviewing her combined submissions and witness statement, it was evident that Ms Harrison had not provided sufficient information about the events after her dismissal to explain the lateness of her application or support her application for an extension of time. In particular, no evidence was provided that made clear the timeline of events in filing the application that were known only to the Applicant. My Chambers requested that the Applicant file further material by 5 May 2025, including the specific details of her call to the Commission so further enquiries could be undertaken. The Applicant did not file any further evidence.

• [15] The Respondent filed their material in compliance with my directions. The Respondent requested, with the consent of the Applicant, that the Commission deal with the application on the papers.

• [16] Given the omissions in the evidence of the Applicant regarding the matters necessary for me to consider, I refused the application to have the matter dealt with on the papers.

• [17] The Commission attempted to conduct a hearing in respect of the matter on 12 May 2025. The parties had requested at the directions hearing that a video hearing, rather than an in-person hearing, be convened.

• [18] Ms Harrison advised the Commission on the morning the hearing was scheduled to commence at 10:00am that she had to alter her childcare responsibilities at short notice and move another appointment such that she was not available to attend the hearing until after the appointment concluded at approximately 11:30am. In order to offer Ms Harrison every opportunity to attend to give evidence in support of her application to extend the time for the filing of her application, the hearing was rescheduled to 1:00pm on the same day.

• [19] At the rescheduled time the Applicant did not join the hearing. The Respondent attended the video hearing and was represented, with permission, by their solicitors, Mr Hodge and Ms Lendich, instructed by Mr Fitzsimmons, People and Capability Advisor of the Respondent.

• [20] Telephone calls were made to the Applicant by my Chambers requesting she join the hearing, however, she failed to respond or join the proceeding. Ms Harrison later advised the Commission by email that she had attempted to join the hearing but could not do so. This was despite my Chambers calling her at the time the hearing was scheduled to facilitate her participation.

• [21] As the Applicant was not in attendance, I decided that there was little alternative but to determine the matter on the papers. The Respondent confirmed it had no objection to that approach.

• [22] Section 394(3) of the Act requires that when considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay; and

(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

(e) the merits of the application; and

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

• [23] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether exceptional circumstances exist in the context of this matter.

• [24] For an extension of time to be granted, the Commission must first find that exceptional circumstances exist. The relevant legal test to find whether exceptional circumstances exist is set out in the matter of Nulty v Blue Star Group Pty Ltd[2]:

"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."[3]

• [25] It is the Applicant's contention that she initially attempted to file her application for an unfair dismissal remedy in January 2025, but this application was never received by the Commission. She told the Commission at the directions hearing that after speaking with an employee of the Commission on an unspecified date and being advised that her application had not been received, "within the next two weeks"[4] she posted another copy of the application completed in January 2025 to the Commission. The second copy of the application was the one received by the Commission and date stamped 2 April 2025.

• [26] A copy of the envelope in which the application was sent was kept on the Commission's file. The Respondent submitted in its Form F3 that the date stamp over the postage stamp on the top right-hand corner of the envelope indicates that the letter was processed by Australia Post on 31 March 2025. When this was raised in the directions hearing the Applicant said that she thought she posted it before 31 March 2025 but did not offer an alternative date. I have since inspected the original envelope in hard copy and can see that the date stamp referred to says "31 MAR 2025".

• [27] I emphasise that the information proffered by the Applicant about when she attempted to file her claim via post and when she spoke with an employee of the Commission was advanced in a directions hearing and was not given in evidence. That information is not evidence and I cannot rely on the statements or give them the weight of evidence. All that the Applicant said about the difficulties in filing her claim in her written evidence was that "I have sent in twice" and that her application sent in January 2025 "never arrived".

• [28] In the Applicant's written evidence, she submitted that the reasons for her delay in filing her claim were:

(a) The date of the dismissal of 23 December is a "peak time of year for all";

(b) She had been "in & out daily looking for work, in between numerous job interviews which have still been unsuccessful";

(c) She had been looking after her two children; and

(d) She has "duties that need to be filled through my family court orders".

• [29] As Ms Harrison did not attend the hearing to give evidence, I was unable to clarify any further with her the impact each of those matters had on her ability to file her application within time.

• [30] Ms Harrison also made reference in her statement to being under a lot of emotional and physical pressure and had been exhausted by dealing with the employer's conduct and the unfair dismissal claim. Again, I could not clarify the nature and impact of these matters on the late filing of the application.

• [31] There is not sufficient evidence before me to enable me to accept that Ms Harrison made the claim within time and that due to events beyond her control her initial application had been lost in the post. I also have insufficient evidence about the nature and time of her alleged telephone call with the Fair Work Commission that would enable me to form a view about whether the telephone call occurred or that she had followed up the application with any diligence.

• [32] The Respondent asserts in their submissions that it was open to the Applicant to send her application by express or registered post or otherwise email or electronically file her application.[5] The Applicant's failure to attend the hearing meant that questions about whether Ms Harrison could have filed the application in an alternative manner were not able to be asked of her.

• [33] What is clear is that Ms Harrison sent her unfair dismissal claim to the Commission on or about 31 March 2025 and it was received on 2 April 2025. This was a significant amount of time after her dismissal.

• [34] The reasons advanced by Ms Harrison to explain the significant delay, including the time of year, her busyness in looking for work after her dismissal, the provision of care to her children and unspecified duties in complying with Family Court orders, do not provide a credible reason for her delay in filing her claim. Ms Harrison asserted that she had sent the application twice and otherwise suggested by dating the application 2 January 2025 that she was aware she had to act with some urgency. If she did complete the application promptly, she demonstrated that she had capacity to file her claim within the statutory time limit.

• [35] The Applicant's reasons for filing the application a significant time after the dismissal are not exceptional or out of the ordinary. Looking for work is necessary for most applicants who have been dismissed from employment. Ms Harrison's description of being active in applying for jobs and engaging in job hunting on a daily basis shows her capacity to engage in activities that are akin to completing an application for unfair dismissal. Looking after children and families is often demanding, in particular in times of significant stress. I accept that Ms Harrison was likely under stress and exhausted by the events of the dismissal and subsequently looking for work. However, these responsibilities are also not exceptional or out of the ordinary and form part of the experience of a lot of employees who have been dismissed.

• [36] Ms Harrison has not provided a valid or exceptional reason for the delay. This consideration does not weigh in favour of granting an extension of time.

Any action taken by the person to dispute the dismissal

• [37] There is no evidence before me that the Applicant took steps to dispute her dismissal other than by filing her unfair dismissal claim. The Respondent asserts in their written submissions that "[t]he Applicant, other than lodging an unfair dismissal application, did not take any other additional action to contest the dismissal with the Respondent."[6] I have no evidence before me to contradict that submission.

• [38] This factor weighs against a finding of exceptional circumstances.

When the Applicant first became aware of the dismissal

• [39] There is no dispute in this matter that the Applicant was made aware of her dismissal on 23 December 2024. She had the full statutory period to file her claim.

• [40] This factor weighs against a finding of exceptional circumstances and a granting of an extension of time.

Prejudice to the employer, including prejudice caused by the delay

• [41] The Respondent asserts that there "will be prejudice to the employer in that witness memory has been eroded by time delays and witness availability is hindered, noting that some witnesses are no longer employed."[7] The Respondent's submission did not contain specific information about what witnesses were no longer employed or how memories may have been compromised by the passage of time. I do not accept at face value that an employee having left employment with the Respondent necessarily means they are unavailable to give evidence in a proceeding.

• [42] The Applicant sent an email to my Chambers on the day of the hearing, after the hearing had concluded. In that email she indicated her view that the witnesses with relevant evidence remain employed by the Respondent. Ms Harrison asked that her correspondence be taken into account in determining the matter.

• [43] As I cannot identify the actual prejudice to the Respondent, this consideration is neutral and has no bearing on my decision in this matter.

• [44] The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[8] Further, the primary consideration is whether the Applicant has an arguable case.[9]

• [45] There is so little material before me regarding the merits of the case that I am unable to even undertake a preliminary consideration or form a view as to whether the Applicant has an arguable case. What can be said is that the Respondent says the Applicant falsified her time sheets and the Applicant says she did not, and that at one site at which she performed work there was no management present who could verify whether she was at work when she claims she was.

• [46] There is nothing conspicuously apparent which leads me to think that the Applicant does not have an arguable case. However, I am unable to go as far as to say that she has an arguable case. Consequently, this factor is neutral and has no bearing on my decision.

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

• [47] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[10] considered this criterion and said:

"Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission."[11]

• [48] I have considered the relevant matters I am required to consider under the Act. This matter turns on its own facts, and as such this criteria is neutral in my decision.

• [49] I have considered the relevant matters as required by section 394(3) of the Act. There are no factors that weigh in favour of a finding that exceptional circumstances exist in this case. The lack of a valid reason or evidence to support the Applicant's broad contentions weigh particularly heavily in my decision. There are also considerations that I have found to be neutral in my decision. As I am not satisfied there are exceptional circumstances in this case, there is no basis to grant an extension of time.

[2] [2011] FWAFB 975.

[4] Audio recording of directions hearing at 7:09.

[5] Submissions of the Respondent at paragraphs 20 and 21.

[8] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at paragraph [14].

[9] Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34].

[10] [2016] FWCFB 6963.

[11] Ibid at paragraph [41]. See also Higgins v FQM Australia Nickel Pty Ltd [2023] FWC 750.

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