s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made outside of 21-day time limit - no exceptional circumstances present - extension of time not granted - unfair dismissal application dismissed.

• [1] This decision concerns an application made by Ms Vanessa Phillips (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 Cth (the FW Act). The Applicant, who was employed by BlueScope Steel Limited (the Respondent), alleges she was dismissed on 26 February 2025. The unfair dismissal application (the Application) was lodged on 21 March 2025. In its Form F3 response, the Respondent raised two jurisdictional objections, firstly that the Application was filed outside the 21-day statutory time period and secondly, the Applicant was not dismissed. This decision deals only with the out of time jurisdictional objection.

• [2] Section 394(2) of the FW 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 the Fair Work Commission (the Commission) allows pursuant to s 394(2) of the FW Act. The period of 21 days ended at midnight on 19 March 2025. The Application was therefore filed 2 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s 394(3) of the FW Act.

• [3] The application for an extension of time to file the unfair dismissal application was set down for a Hearing on 23 April 2025 in advance of which the parties filed material in accordance with directions issued. At the Hearing, the Applicant appeared and gave evidence while the Respondent was represented by Mr Marcus Topp of Kingston Reid who was granted permission to appear on behalf of the Respondent pursuant to s 596(2)(a) of the FW Act. Mr Topp called Ms Fiona Magnus (Head of Talent) and Ms Samantha Gates (People Manager) to give evidence for the Respondent.

• [4] A full-time role of Employer Brand and Communications (the Role) was advertised by the Respondent in August 2023.[1] The 'home base' of the Role was advertised to be either 'Mt Waverly VIC, Mascot NSW or Port Kembla NSW with hybrid flexible work arrangements available'. The Applicant explained in her evidence the availability of 'hybrid work arrangements' was critical to her decision to apply for and ultimately accept the Role and signed an Employment Contract[2] (the Contract). The Applicant commenced in the Role on 4 October 2023 and was based at the Respondent's Mt Waverly office, reporting directly to Ms Magnus. The Role primarily involved the Applicant with assistance of the Respondent's marketing team, articulating to prospective employees what it was like working for the Respondent.[3]

• [5] Ms Magnus states the Applicant was advised at the time of her recruitment that while the Role was based at Mt Waverly, she may be required to travel on an ad-hoc basis to other sites of the Respondent. According to Ms Magnus, the Applicant was also advised at the time of recruitment and subsequently that the Respondent's default position was that all employees were required to attend the workplace at least three days per week unless they had reached an agreement with their manager on an alternate arrangement. However, at the time of the Applicant's recruitment, the Respondent was in the process of considering relocation of its Mt Waverly office and Ms Magnus had secured approval for her staff (including the Applicant) to only be required to attend the office a minimum of two days per week (the Interim WFH Arrangement). Ms Magnus was adamant that the Interim WFH Arrangement was explained to the Applicant including that in the long term she would be required to attend the office more frequently.[4]

• [6] The Applicant disputed Ms Magnus' evidence of what was explained to her on commencement of employment regarding the Interim WFH Arrangement. While the Applicant agreed that the Contract did not specify the number of days to be worked in the office and could point to no other written agreement on such, she nonetheless maintained that a verbal agreement was reached on commencement of employment that she would only be required to work in the office two days per week. When cross-examined on this point Ms Magnus maintained the interim nature of the Interim WFH Arrangement was clearly explained to the Applicant.

• [7] Ms Magnus states that during August 2024, she advised her direct reports the Respondent had deferred the relocation of the Mt Waverly office meaning the Interim WFH Arrangement would cease, requiring her direct reports to attend the office at least three days per week from January 2025.[5] This evidence was not challenged by the Applicant. Ms Magnus also states that during separate discussions with the Applicant in July/August 2024, the Applicant raised with her whether she could move to a four-day week. Ms Magnus says that while she was open to having a discussion about a four-day working week, the Applicant conceded her role was a 'five day role' and did not subsequently pursue the matter formally with Ms Magnus.[6]

• [8] The Applicant gave evidence that challenges with her workload and difficulties in her working relationship with Ms Magnus led to formal mediation between the two in August 2024.[7] No evidence was led by either the Applicant or the Respondent regarding the outcome of the confidential mediation. The Applicant also claimed that the issue of her need to maintain her three day per week work from home arrangements was raised with Ms Magnus on a number of occasions including in a meeting around the time of the August 2024 mediation in which the Applicant claims she advised Ms Magnus the loss of the three days per week work from home arrangement was a 'deal breaker' for the Applicant.

• [9] On 12 December 2024, Ms Tania Archibald, Chief Executive of ASP, emailed all staff asking them to be physically present in the workplace at least four days per week.[8] The email from Ms Archibald made clear that the Respondent would continue to support flexibility across its workplaces and encouraged employees to familiarise themselves with the Respondent's 'B-flex Guidelines'.[9] Ms Magnus recalls that during a one-on-one meeting around this time, the Applicant queried whether she could continue to work from home two days per week, citing the duration of her commute as the reason for the request. Ms Magnus says that while she suggested to the Applicant in response that she consider moving her start and finish times to avoid peak commuting times, the Applicant did not subsequently pursue the matter formally.[10]

• [10] Ms Magnus states that while the Applicant did not formally pursue a flexible working arrangement pursuant to the B-flex Guidelines, the Applicant was open in discussions with Ms Magnus about challenging issues she confronted in her personal life, which led Ms Magnus to provide her with support and a degree of flexibility. This included allowing the Applicant to work from home on additional days, permitting the Applicant extended meal breaks on occasions when she had medical appointments near the Mr Waverly office, allowing the Applicant to work half days as required to attend medical appointments and suggesting that the Applicant work on an occasional basis from the Respondent's corporate office in the Melbourne CBD.[11] After suffering serious medical events in February and November 2024, the Applicant was also approved to take five days of paid compassionate and personal leave and seven days of unpaid leave.[12]

• [11] On 28 January 2025, the Applicant advised Ms Magnus during a one-on-one meeting that after considerable thought during her recent leave, she had decided to resign from her employment. She explained to Ms Magnus that she had been working for around 23 years and having not had the opportunity to take long service leave, wanted to take an extended break from work. The Applicant also explained that when she was ready to return to work she would prefer to take up a marketing role. Ms Magus states the Applicant also expressed gratitude to Ms Magnus for the opportunity presented by the Role and that she had enjoyed working for the Respondent.[13] The Applicant subsequently confirmed her resignation in writing on 28 January 2025 which relevantly stated as follows;

Following on from our meeting and only as a formality, this note is to explain that after 23 years of continuous fulltime work I've decided to take an extended break. I'm looking forward to taking 3-4 months of "life leave" to refocus on some personal projects for my wellbeing. This means resigning from my role at BlueScope for which I'm grateful, thanks again for the opportunity. With a last day of COB 26 Feb 2025 or as needed - I'm flexible and happy to work with you to package up my work and provide a thorough

• [12] When cross-examined on her resignation, the Applicant explained that she had not disclosed the true reasons for her resignation to Ms Magnus out of a concern to not offend or create discomfort for Ms Magnus. She went on to explain that the last straw that led to her resignation was a voice message left by Ms Magnus on her phone on 13 January 2025[15] in which Ms Magnus advised the Applicant that she was required to work in the office three days per week from the following week. According to the Applicant, that advice from Ms Magnus was despite an earlier telephone conversation between the two on 11 December 2024[16] during which the Applicant reaffirmed to Ms Magnus her need to continue working from home three days per week. The Applicant claimed that Ms Magnus' direction on 13 January 2025 blindsided her although she conceded that staff had been on notice since August 2024 that they would be required to attend the office three days per week from January 2025. She went on to explain that the August 2024 notice from Ms Magnus had in her view been made irrelevant by Ms Archibald's December 2024 email to all staff requiring office attendance a minimum of four days per week from February 2025.

• [13] Ms Magnus states that the Applicant worked out her notice period on a work from home basis and was permitted to work her final day on 24 February 2025 although she was paid up until 26 February 2025. The Applicant challenged Ms Magnus' evidence and claimed that she had in fact continued to attend the office during the notice period. When pressed on this point during cross-examination Ms Magnús conceded that her recollection regarding the Applicant's office attendance during the notice period may have been incorrect. Ms Magnus further states that at no stage did the Applicant advise Ms Magnus that her resignation was related to a need for additional flexibility, nor did she make a formal request for any form of flexible working arrangement or advise Ms Magnus that she wished to reconsider or withdraw her resignation.[17]

• [14] During cross-examination, the Applicant confirmed that she had not at any stage sought to maintain her work from home arrangements of three days per week for medical reasons. She also acknowledged that she was aware of the Respondent's B-flex Guidelines and conceded that she had not made a formal application for a flexible working arrangement under that or the FW Act. Nor was her existing work from home arrangements documented anywhere. She explained that her failure to make a formal application was because she understood from the B-flex Guidelines that discussion and agreement between her and Ms Magnus as her line manager was required before she could make a formal application. As Ms Magnus had at no stage agreed during their various discussions to the preservation of the Applicant's three days per week work from home arrangements, she did not believe she was able to make a formal application. The Applicant also explained that she was not seeking to change her work from home arrangements, but was simply seeking to preserve the arrangements that had been in place since her commencement in October 2023 and which she claimed had been agreed.

• [15] An exit interview between Ms Gates and the Applicant was conducted approximately two weeks prior to the Applicant's cessation of employment. Ms Gates gave evidence that the interview was generally positive, and that the Applicant did not say anything that led Ms Gates to believe the resignation was for any medical reason, conduct of the Respondent or that the Applicant wanted to retract her resignation. While the Applicant expressed frustration during the exit interview with the Respondent's default requirement that employees attend the office a minimum of four days per week, at no point during the interview did she refer to Ms Magnus having refused any formal flexible working arrangement request made under the FW Act or the Respondent's B-flex Guidelines. Ms Gates went on to state that the Applicant only referred to her informal request to work from the Respondent's Melbourne CBD Corporate office which was unable to be accommodated on a permanent basis.[18]

• [16] The Applicant gave evidence that prior to the exit interview she sent a message to Ms Gates that included three dot points of issues of concern she wished to discuss. While the message was not in evidence, the Applicant stated that the three dot points were her inability to retain her flexible working arrangement, her poor working relationship with Ms Magnus and her rejected offer to work in the Respondent's Melbourne CBD corporate office one day per week as an alternative to attending the Mt Waverly office for an additional day per week. Ms Gates' recollection of the three dot points was somewhat different. She recalled the three points being the Applicant's concerns over the four day per week office attendance requirement, the Applicant's feeling of isolation from the team and her relationship with Ms Magnus, although Ms Gates understood the latter point to be related to the relationship between the two prior to the August 2024 mediation.

• [17] In relation to the late filing of the Application, the Applicant confirmed during cross-examination that she was unaware of the 21-day filing requirement until she undertook research into her rights under the Sex Discrimination Act 1984 (Cth) and FW Act. She stated that she did not commence researching her rights until four days before she filed the Application. She responded during cross-examination that she was initially unsure of whether she had a case in circumstances where she had resigned, until she had undertaken that research. The Applicant also confirmed that she did not seek any independent advice but relied on her own research into her rights.

• [18] The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances.' 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.[19] Exceptional circumstances may 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 can be considered exceptional.[20]

• [19] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

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

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

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

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

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

• [21] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.

• [22] The Application needed to have been made by midnight on 19 March 2025 to be within the 21-day filing period. The delay is the period commencing immediately after that time until 21 March 2025, although circumstances arising prior to that day may be relevant to the reason for the delay.[21]

• [23] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[22] An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay.[23]

• [24] The Applicant submits the Application was made two days late because it took her longer than usual to explore and understand her rights under the Sex Discrimination Act 1984 (Cth) and FW Act. This included her becoming aware that employees could make flexible working arrangement requests under the FW Act because of pregnancy and/or potential pregnancy and that such requests could only be refused on reasonable business grounds. She further submits that it took her an additional two days to research her rights her rights on what constitutes reasonable workplace adjustments in circumstances where she was experiencing recurrent and challenging medical issues.

• [25] The Applicant's submission rises no higher than the late filing of her application was due to her being unaware of rights under the FW Act and Sex Discrimination Act 1984 (Cth). The Applicant submits that the delay was caused by her research into her workplace rights although I note that those rights to which the Applicant refers are at best only tangentially related to the Application as they bare upon rights to make flexible working arrangement requests under the FW Act. Significantly, the Applicant confirmed during her evidence that she did not commence research into her rights until two days prior to expiry of the 21-day filing period. There is considerable Full Bench authority that an ignorance of the statutory framework is not in the ordinary course, unusual, special, or uncommon. The Full Bench in Nulty v Blue Star Group Pty Ltd[24] (Nulty) said as follows when considering the equivalent extension of time provisions in a general protections dismissal matter on appeal before it;

"[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances." In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance."

• [26] In the above circumstances I am not persuaded the Applicant has advanced an acceptable explanation for any part of the delay in filing her application for an unfair dismissal remedy. The absence of an acceptable explanation for the filing delay weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

• [27] It was not in dispute, and I find that the Applicant became aware of her dismissal on the same day that it took effect on 26 February 2025 and therefore had the benefit of the full period of 21 days within which to lodge her unfair dismissal application. This weighs against a finding of exceptional circumstances.

[24] The Applicant took no action to contest her dismissal after it took effect on 26 February 2025, other than lodging the Application. This weighs against a finding of exceptional circumstances.

• [28] The application was filed two days outside of the 21-day period. I find in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.

• [29] The FW Act requires me to take into account the merits of the application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[25] it said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

• [30] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case"[26] for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.

• [31]  The Applicant submits that her resignation was because of conduct, or a course of conduct engaged in by the Respondent which left her no choice but to resign. She refers to having accepted the Role on the basis of being able to work from home three days per week, which pattern she worked on the basis of from October 2023 to the time of her employment cessation in February 2025. She submits that the Respondent's requirement that she change those 'agreed' arrangements to that of attending the office three and then four days per week was a unilateral change to her employment conditions that failed to have regard to her personal circumstances, and specifically her medical condition and needs. She claims the failure of the Respondent to accommodate her personal circumstances and allow her to preserve her three days per week work from home arrangements left her no choice but to resign.

• [32] The Respondent submits that the Applicant was not dismissed at its initiative. It submits she resigned her employment to take an extended break from work, did not retract that resignation during her notice period, at no stage formally pursued a flexible working arrangement under the B-flex Guidelines or FW Act, did not advise the Respondent that she needed flexibility due to a medical condition, but in any case was afforded significant flexibility during her employment by the Respondent. Nor did the Applicant raise the issues she now presses, at the time of her resignation, either with Ms Magnus or with Ms Gates.

• [33] Based on the limited material before me, I accept that the Applicant was strongly desirous of maintaining the work from home arrangements she believed had been agreed on commencement of her employment, that being three days per week. It is also clear that the Applicant and Ms Magnus discussed the Applicant's working arrangements on a number of occasions after Ms Magnus had advised staff that the Interim WFH Arrangement would end in January 2025. That said, the Applicant did not in the wake of notification of the changed office attendance requirements, formally pursue a flexible working arrangement under either the B-flex Guidelines or FW Act. Nor did she advise the Respondent or provide medical evidence to support the claimed need to preserve the three days per week work from home arrangements. It is also significant that at the time of her resignation, the Applicant did not set out what are now said by her to be the real reasons for her resignation and nor did she seek to retract her resignation during the four-week notice period.

• [34] It is evident to me that the merits of the Application are likely to turn on contested points of fact which would need to be tested if an extension of time were granted, and the matter were to proceed. While the case for the Applicant does not appear strong on the material presently before the Commission, I am prepared to accept that she may be able to lead further evidence that might establish an arguable case. The Respondent has raised a strong prima facie defence. In these circumstances the merits of the case do not tell in favour of an extension of time being granted. I also note that if I were to grant an extension of time the further jurisdictional objection raised by the Respondent would need to be dealt with. In all these circumstances I regard this factor as a neutral consideration.

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

• [35] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. 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 therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

• [36] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

• [37] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3) of the FW Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.

[1] Exhibit A3, Advertisement for role of Employer Brand and Communications Lead

[2] Exhibit R1, Witness Statement of Fiona Magnus, dated 10 April 2025, Annexure FM-1, Vanessa Phillips Employment Contract

[7] Exhibit A6, Mediation Agreement, dated 22 August 2024

[8] Exhibit R1, Annexure FM-2, Tania Archibald email to staff dated 12 December 2025, titled 'Strengthening Connections and Collaboration in 2025'

[14] Exhibit R1, Annexure FM-3, Email from Applicant to Fiona Magnus, dated 28 January 2025, titled "Note from Vanessa"

[15] Exhibit A5, Telephone call record and voice message transcription

[18] Exhibit R2, Witness Statement of Samantha Gates, dated 10 April 2025, at [6]-[9]

[19] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[21] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[22] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[24] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

[25] Print PR3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

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

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