s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - out of time - no exceptional circumstances - application dismissed

• [1] On 19 July 2025, Ms Tsz Wa Carmen Li made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Australian Nursing Home Foundation Limited (ANHF).

• [2] Section 394(2) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.

• [3] In her application, Ms Li stated that her employment ended on 28 April 2025. Therefore, the application was made outside of the 21-day period prescribed by s.394(2) of the FW Act.

• [4] Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application. To determine whether there are exceptional circumstances, the factors in ss.394(3)(a)-(f) of the FW Act are considered.

• [5] In summary, I have found that Ms Li ceased working for ANHF on 28 April 2025. The application should have been made on 19 May 2025 to comply with s.394(2)(a) of the FW Act. The application was therefore made 61 days outside of the 21-day limit.

• [6] I have found that the circumstances in which the application was made are not exceptional, according to the factors in s.394(3) of the FW Act, and so I have not granted an extension of time to file the application.

• [7] Ms Li commenced employment with ANHF as a casual Communications and Marketing Officer on 23 February 2022. Later that year, Ms Li's employment was converted from casual to permanent. In March 2024, Ms Li was promoted to the full-time role of Communications and Marketing Lead. Ms Li said that in this role, she led a small team of four people in the communications and marketing function.

• [8] On 28 April 2025, Ms Li was informed that her role of Communications and Marketing Lead was no longer required and that there were no suitable internal positions for redeployment. Ms Li said that during the meeting, where she was advised that her employment would be terminated due to redundancy, her direct manager asked her to hand over her responsibilities, which gave her the impression that her work was still needed. Ms Li was also asked about a film she was involved in which continued to be produced and broadcast after her departure. This led Ms Li to have further doubts about the redundancy being genuine.

• [9] Ms Li explained that in March 2025, ANHF created a new position of Customer Engagement Manager, who became the new supervisor for her team. Ms Li said that from that time, she was informed both verbally and via email that she would be demoted back to Communications and Marketing Officer role on 1 July 2025. Ms Li said she was instructed to change her email signature accordingly and had all decision-making authority removed. Ms Li said that until her dismissal, she only carried out operational tasks such as social media publishing, website updates, Canva design, answering phones and managing enquiries. Ms Li said that these changes caused her to be suspicious that the redundancy was not genuine, but she did not have sufficient evidence to support an unfair dismissal claim.

• [10] Ms Li explained on or shortly after 1 July 2025, she became aware that ANHF had filled a new internal role called 'Marketing Assistant' which was not externally advertised. The duties of this role matched the work Ms Li was performing before she was terminated, particularly the Communications and Marketing Officer role tasks that she had been reassigned to in the months prior to her dismissal. Ms Li also learned that the person employed for the role was an internal candidate which she said suggested that ANHF replaced her under a different job title rather than eliminating the role entirely. She had no knowledge of this recruitment until after the 21-day deadline for filing the unfair dismissal application had passed. Upon learning of it, she took prompt steps to seek advice and prepare the application.

• [11] Ms Li said that she believed that the termination not a genuine redundancy. Ms Li said her duties were still needed by the organisation but were transferred to a new position under a different title. Ms Li said that she was not consulted properly, nor given any alternatives. She said she believed she was unfairly dismissed under the appearance of a redundancy that was not real.

• [12] Ms Ada Chee Har Cheng, Chief Executive Officer, gave evidence on behalf of ANHF. Ms Cheng said that on or about 1 April 2025, ANHF changed Ms Li's title to Communications and Marketing Officer to avoid confusion following a change of her reporting line. Ms Cheng said that Ms Li's duties and remuneration remained unchanged.

• [13] Ms Cheng said that on or around 1 July 2025, ANHF commenced recruitment for a newly created Marketing Assistant role and provided the Commission with a copy of the position description for this role. Ms Cheng said that the casual Marketing Assistant role was established to support ANHF's Communications and Marketing Unit with occasional and temporary operational needs on an ad hoc basis, without any commitment to ongoing work. Ms Cheng said that the duties and responsibilities of the casual Marketing Assistant role differed significantly from those performed by Ms Li in her role prior to her dismissal, in particular that it was comparatively junior and primarily involves administrative duties.

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

• [14] As the Full Bench has stated in relation to a general protections application, but equally applicable here, "[t]he 21 day period prescribed... does not include the day on which the dismissal took effect."[1]

• [15] There is no dispute that the dismissal took effect on 28 April 2025. The final day of the 21-day period was therefore 19 May 2025 and ended at midnight on that day.

• [16] I find that the application was made on 19 July 2025 and note that this is not in dispute.

• [17] As the application was not made within 21 days of the date on which the alleged dismissal took effect, I need to consider whether the Commission should allow a further period for the application to be made.

Should the Commission allow a further period for the application to be made?

• [18] Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

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

(c) any action taken by Ms Li to dispute the dismissal;

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

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

• [19] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

• [20] I set out my consideration of each matter below.

• [21] Ms Li said that she became aware in early July 2025 that a new Marketing Assistant position had been created. Unlike normal external recruitment, the role was not publicly advertised, so details of the position and its responsibilities were not immediately available. Ms Li said that it took time for her to notice the recruitment notice and understand that the duties of this role substantially overlapped with her previous responsibilities. This was the first time she had experienced redundancy, and she required a reasonable period to research and confirm whether her circumstances could give rise to an unfair dismissal claim. Ms Li said that the 18 days between awareness and lodgment reflected the time required for her to properly verify the situation and understand her rights under the FW Act. Once Ms Li had sufficient clarity, she lodged her application without further delay.

• [22] In my view it was reasonable for Ms Li to refrain from making an unfair dismissal application immediately following the dismissal in the absence of evidence that the redundancy was not genuine. Although Ms Li held suspicions in this regard, these suspicions would not have been sufficient to result in a successful claim. Given that Ms Li's history of employment with ANHF commenced with a casual role with similar duties to the casual Marketing Assistant role, the advertising of this role on 1 July 2025 provided some evidentiary basis (which did not exist previously) for Ms Li to argue that the redundancy was not genuine. I therefore accept that Ms Li had a valid reason for delaying the filing of the application until shortly after the casual Marketing Assistant role was advertised.

• [23] However, Ms Li has not provided a convincing explanation as to why it took her 18 days after the role was advertised to lodge the application. Ms Li's explanation is that she took this time to properly verify the situation and understand her rights under the FW Act. It is unclear why Ms Li could not have verified the situation and understood her rights under the FW Act within one or two days after becoming aware of the casual Marketing Assistant role. Ms Li's explanation of the 18-day delay between the casual Marketing Assistant role being advertised and Ms Li lodging the application is vague and lacking in detail and does not support a finding of exceptional circumstances.

Whether Li first become aware of the dismissal after it had taken effect?

• [24] There is no dispute between the parties that Ms Li was notified of the dismissal on 28 April 2025. This does not weigh in favour of a finding that there are exceptional circumstances.

What action was taken by Li to dispute the dismissal?

• [25] There is no basis for me to make a finding that Ms Li took action to dispute the dismissal before she filed the application on 19 July 2025. As such, this does not weigh in favour of a finding that there are exceptional circumstances.

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

• [26] Ms Li submitted that she anticipated that ANHF would experience minimal prejudice as she is seeking only a fair review of the dismissal and further that she will provide her witness statement and materials promptly.

• [27] ANHF submitted that Ms Li's long delay gives rise to a general presumption of prejudice. ANHF further submitted that the absence of a specific prejudice to ANHF does not of itself create exceptional circumstances and does not favour Ms Li. ANHF submitted that it will have to bear the cost and inconvenience of defending a claim without merit. ANHF submitted that these factors weigh against the granting of an extension of time.

• [28] ANHF did not point to any specific prejudice that it would suffer if the extension of time is granted apart from being required to defend Ms Li's claim. I find that this matter is a neutral consideration which neither weighs in favour or against a finding that there are exceptional circumstances.

• [29] Ms Li was dismissed on the ground of redundancy. A person will not be regarded as unfairly dismissed under s.385 if the dismissal was a case of genuine redundancy. Under s.389(1) of the FW Act, a person's dismissal was a case of genuine redundancy if:

(a) the employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

• [30] Section 389(2) provides that a person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise or the enterprise of an associated entity of the employer.

• [31] Ms Li submitted that she has a credible claim that the redundancy was not genuine, supported by:
  • ANHF's removal of Ms Li's Lead responsibilities prior to dismissal;
  • Ms Li's demotion to the role of Communications and Marketing Officer reflected in email signature and business card changes;
  • Discussion of ongoing work during the termination meeting; and
  • Subsequent hiring of a Marketing Assistant performing the same tasks

• [32] Ultimately the matters relied upon by Ms Li to submit that she has a credible claim will be the subject of evidence adduced by both parties so it is not possible to form a concluded view about the merits of the application at this preliminary stage. I regard the merits of the application as a neutral consideration which neither weighs in favour or against a finding that there are exceptional circumstances.

Fairness as between Li and other persons in a similar position

• [33] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

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

• [34] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

• Ms Li becoming aware on or shortly after 1 July 2025, that ANHF had advertised a new Marketing Assistant role; and
• Ms Li requiring time between becoming aware of the Marketing Assistant role and filing the application to properly verify the situation and understand her rights under the FW Act

(b) Ms Li becoming aware of the dismissal when it took effect;

(c) no action taken by Ms Li to dispute the dismissal prior to making the application;

(d) the employer identifying no potential prejudice apart from being required to defend Ms Li's claim;

(f) no issue of fairness arising between Ms Li and other persons in a similar position.

• [35] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[3] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually have no particular significance, when taken together can be considered exceptional.[4]

• [36] The reasons for the delay do not weigh in favour of a finding of exceptional circumstances. While Ms Li had a valid reason for delaying the filing of the application until shortly after the casual Marketing Assistant role was advertised, she did not provide a convincing explanation as to why it then took her 18 days to make the application. In addition, the time that Ms Li became aware of the dismissal and the fact that no action was taken by Ms Li to dispute the dismissal prior to making the application are both matters which do not weigh in favour of a finding of exceptional circumstances. The matters in subsections 394(3)(d)-(f) are neutral considerations.

• [37] Having regard to all of the matters listed at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.

• [38] As I am not satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time.

• [39] Therefore, Ms Li's application for an unfair dismissal remedy is dismissed. I order accordingly.

[1] Singh v Trimatic 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] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]

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

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