Fair Work Act 2009

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 (the Application) made by Ms Vanessa Portia (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 Cth (the Act). The Applicant alleges she was dismissed on an unspecified date in April 2020 by the Greater Shepparton City Council (the Respondent). The Application was lodged by the Applicant on 20 March 2025. The Respondent confirmed the date of the Applicant's dismissal was 7 April 2020 in its Form F3.

• [2] Section 394(2) of the Act states 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 Act. As the dismissal took effect on 7 April 2020, the period of 21 days ended at midnight on 28 April 2020. The Application was therefore filed 1,787 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 Act.

• [3] The application for an extension of time to file the Application was set down for determinative conference on 5 May 2025 in advance of which the parties filed material in accordance with directions issued. At the conference, the Applicant appeared and gave evidence while the Respondent was represented by Ms Karen Liversidge (Manager People and Development), who also gave evidence.

• [4] The Applicant signed a contract of employment on 14 January 2015[1] (the Contract of Employment) confirming her commencement of employment on a casual basis with the Respondent on 12 January 2015 in the position of Sales and Customer Service Officer (the Casual Role) at the Respondent's public swimming pool, Aquamoves. Ms Liversidge states the Respondent issued the Applicant with a letter[2] on 3 July 2018 (the 3 July Letter) advising of the outcome of a review of the various teams at Aquamoves, which in the case of Applicant's Casual Role was described as follows;

Following an operational review of the various teams providing services at Aquamoves and the resources needed to provide those services, the decision has been made to rename your role to Leisure Services Officer.

Therefore now that consultation with all staff involved has been completed, I have pleasure in confirming that your position with Greater Shepparton City Council is now

Leisure Services Officer and is able to encompass the duties of Lifeguard, Swim Instructor, Gym Instructor, Customer Service and Activities in the Park Assistant, dependant on relevant and appropriate qualifications.

• [5] The 3 July Letter confirmed the Applicant's role remained a casual position and advised of other relevant matters relating to the position including the hours of work. It went on to relevantly state as follows;

1. Hours of employment will range between 5.00am and 11.00pm and may include weekend and public holiday work. You will be employed on an hourly basis to work on an intermittent or irregular basis. We cannot guarantee you set hours of work. In

order to manage our casual staff, we undertake a 6 month database check. Any casual employee who has not worked within that period will automatically be removed from the system.

• [6] The Applicant was requested to sign and return the 3 July Letter along with her position description if she wished to accept the position as detailed. Ms Liversidge was questioned on how the Applicant was provided the letter. She responded that the 3 July Letter would have been provided to Aquamoves management who would have then provided it by email or directly to the Applicant. She conceded she could not say with certainty the Applicant received the 3 July Letter, and the Applicant denied receiving it. In any case, there is no record the Applicant signed and returned the 3 July Letter.

• [7] Ms Liversidge gave evidence, with which the Applicant agreed, that the Applicant worked between 8 and 60 hours per fortnight between January 2015 and May 2018 and while she did not work any shifts after that date, she did attend staff meetings in December 2018.[3] In explaining the fact she did not work any shifts after May 2018, the Applicant gave evidence she took 'a bit of an unplanned break due to various health conditions & COVID-19', at no stage had she received the 3 July Letter or resign from her employment.[4] When pressed during cross-examination, the Applicant conceded that another contributing factor to her not working any casual shifts for the Respondent after May 2018 was that she worked full time for two other companies in the period between July 2019 and July 2022.

• [8] Ms Liversidge states that in April 2020, the Respondent's payroll department performed an audit which identified casual staff who had not worked for at least 6 months. This resulted in Aquamoves management being contacted and confirming the Applicant had not worked for over a year. An email dated 7 April 2020[5] (the Termination Email) was subsequently sent from the Respondent's People & Development team to the Applicant advising her employment was to be terminated effective that day and if she had any questions, to get in touch. The email stated as follows;

Our records indicate that you have not worked in your position of Leisure Services Officer within the past six months.

Therefore in accordance with your letter of appointment for this position, your employment in this role will be terminated effective from 7 April 2020.

I would like to take this opportunity to thank you for your valued contribution to our organisation and I wish you the very best in your future endeavours.

Please contact our People and Development Department should you have any questions regarding this matter.

• [9] The Applicant gave evidence she did not receive the Termination Email and was not otherwise contacted by the Respondent regarding her dismissal, be that in person, over the phone or by letter. She further states as she never received the 3 July Letter she did not accept the condition that her employment could be terminated if she failed to work a shift for a period of at least 6 months.[6] The Applicant agreed during cross-examination that she could not rule out that the Termination Email was received by her and she had simply not seen or read it. When further pressed, the Applicant could not recall contacting the Respondent between 7 April 2020 and 29 April 2022 to advise she was available to perform casual shifts or query why she had not been offered any shifts by the Respondent during that period.

• [10] On 29 April 2022, the Applicant formally applied for a part-time position of 'Leisure Service Officer - Customer Service Position'[7] (the Part-time Role) at Aquamoves. In her application letter (the Application Letter), the Applicant said as follows;

Re: Leisure Services Officer Customer Service Position

I am writing to apply for the position of Leisure Services Officer Customer Service (part-

time, 23 hours weekly) at Aquamoves, which was advertised online. I firmly believe I am the ideal candidate for this position as my previous experience and past position within

Aquamoves' customer service team for four years (2015-2019).

I am a passionate, motivated organised professional who has excellent written and verbal skills. I always put the customers needs first and work with integrity to ensure protocol is always followed.

I have enclosed my resume to support my application. It shows that I would bring important skills to the position, including:

• I have 8 years' experience in administrative and customer service roles. Including previous experience in the exact position advertised within Aquamoves.

• Impressive customer service skills, computer skills, sales skills, cash handling, current working with children's check, document filing and administrative tasks.

• During my time employed at Aquamoves, I exceeded membership sales goals, became diligent in booking 'learn to swim' students built meaningful and supportive relationships with customers and staff within the centre.

Aquamoves has always held a special place in my heart, and I thoroughly enjoyed my time working within the company. I believe I have left behind a reputation of hard work, dedication and diligence and I would be honoured to return and carry on that reputation.

I would enjoy having the opportunity to talk with you more about this position, and how I could use my skills to benefit your organisation.

Thank you for considering my application. I look forward to hearing from you.

• [11] Attached to the Applicant's job application was a resume[8] which identified her employment history as follows;

• [12] The Applicant maintained her employment with the Respondent remained on foot at the time of her application for the Part-time Role in April 2022. She explained she had been attempting to hold down full-time employment at Pental & Kreska Brothers while maintaining her casual employment with the Respondent. When questioned on the claim her casual employment remained on foot in April 2022, the Applicant agreed she had not worked any casual shifts for almost four years at that point nor sought any casual shifts in that period. She nonetheless maintained she had not resigned nor received notification of her dismissal.

• [13] The Applicant further states she deliberately completed the application for employment for the Part-time Role as a 'new recruit' because she had not worked at Aquamoves for a period of time. She also states she put in her active years of employment with the Respondent from 2015 - 2019 to avoid confusing the recruitment team on where her 'training was at and if additional training was required'. In her application, the Applicant also referred to wanting to return to Aquamoves, which she says was again expressed in those terms to ensure any required training in systems/process was able to be identified. The Applicant resisted the proposition put to her during questioning that the language used in the Part-Time Role application and resume made clear she understood she was no longer a casual employee in April 2022.

• [14] According to Ms Liversidge, the Applicant attended an interview for the Part-Time Role on 25 May 2022, was successful in her application, commenced in the role on a permanent basis on 25 July 2022 and remains employed by the Respondent as at the date of hearing of this matter.[9] The Applicant when questioned during cross-examination stated she could not recall raising the status of her employment during the interview and recruitment process for the Part Time Role.

• [15] On or about 28 November 2024, the Applicant queried her long service leave (LSL) entitlement with the Respondent. Ms Jacinta Rennie (Team Leader - People & Workforce) responded by email at 9.20am on 28 November 2024, relevantly advising the Applicant as follows;

An employee is eligible to access pro-rata LSL once they reach 7 years completed service, however, noting you had a break in service and left the organisation 5 April 2020 and then re-employed from 25 July 2022 the break in service is greater than 12 months so your entitlement to any carried over LSL is not applicable.

Therefore you accrual to LSL has recommenced from 25 July 2022 and you will be eligible to access that LSL once you reach 7 years' service.

• [16] The Applicant responded to Ms Rennie shortly after at 9.46am on 28 November 2024 in the following relevant terms;

My reason for not completing shifts during this time was due to the COVID-19 pandemic and severe risk to my health as a result. I have ample documentation and proof of hospitalisations during this time if required.

I am wondering if you can advise on the process for someone having absence for over 12 month but under 3 years due to the reasons above?

• [17] The Applicant was subsequently advised by Ms Rennie at 11.39am on 28 November 2024 that a break in service greater than 12 months where the employment was terminated means her prior service did not count for the purpose of calculating the qualifying service period.[12] The Applicant requested an opportunity to discuss the matter further and ultimately met with Ms Kiara Mason on 10 December 2024. Following that meeting, Ms Mason sent an email to the Applicant on 17 December 2024 advising the LSL regulations dealing with redundancy and service breaks did not apply to the Applicant as her position was not made redundant.[13] The Applicant then responded on 18 December 2024 claiming she had not been notified of her dismissal and that notifying someone of their dismissal by email was not valid.[14]

• [18] On 6 February 2025, Ms Mason belatedly responded to the Applicant's 18 December 2024 email. Ms Mason said as follows in her email;

My apologies for the late reply, I have just returned in the office this week from leave.

When casual staff members have not worked within a 6 month period, they will automatically be removed from the system as outlined in your Letter of Appointment. This process is undertaken by notifying the employee via email which was sent to you on 7 April 2020 (as attached).

As per Fair Work, "an employer must provide an employee with written notice of the day of termination when ending their employment." As we advised you via email, this is considered a valid way to terminate an employee.

• [19] The Applicant stated during cross-examination that any doubts she held about the termination of her employment on 7 April 2020 were removed when she received a copy of the Termination Email from Ms Mason on 6 February 2025. She says she then engaged in further communication with the Respondent to try and resolve the matter of her employment continuity up until 4 March 2025 at which point she was advised by Ms Mason the matter was closed. It was after this communication the Applicant resolved to file the Application which she did on 20 March 2025.

• [20] The 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.[16] 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.[17]

• [21] 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.

• [22] 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.

• [23] 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.

• [24] If the dismissal took effect on 7 April 2020, the Application needed to have been made by midnight on 28 April 2020 to be within the 21-day filing period. The delay is the period commencing immediately after that time until 20 March 2025, although circumstances arising prior to that day may be relevant to the reason for the delay.[18]

• [25] 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.[19] 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.[20]

• [26] The Applicant claims she was unaware of her dismissal from the Casual Role on 7 April 2020 until she queried her LSL entitlement on 28 November 2024. She further contends that formal evidence of her dismissal by way of a copy of the Termination Email was not provided to her until 6 February 2025 following which she continued to engage with the Respondent up until 4 March 2025 to try and resolve the matter, without success. It was only after this date she resolved to file the Application. She submits the failure of the Respondent to advise her of the termination of her employment until 6 February 2025 and her efforts to resolve the matter after that date explains the delay in filing the Application. For the reasons that follow I find the Applicant's evidence on her having been unaware of her dismissal to be unconvincing.

• [27] Firstly, the Termination Email was sent to the Applicant's personal email address, which she still uses. The Applicant conceded she could not be certain she did not receive it although she neither saw nor read it. In the circumstances and having regard to the Applicant's conduct after 7 April 2020 I am satisfied the Termination Email was received by the Applicant, and she was aware of her dismissal when it took effect.

• [28] Secondly, the Applicant's conduct in the wake of the Termination Email was entirely consistent with her being aware of her dismissal. There is no evidence she made any contact with the Respondent to advise of her availability for shifts or query why she had not been rostered to work any shifts between 7 April 2020 and 29 April 2022 when she applied for the Part-Time Role

• [29] Thirdly, the Applicant's evidence she did not work any shifts with Aquamoves after May 2018 because she took 'a bit of an unplanned break due to various health conditions and COVID 19' must be rejected. The Applicant properly conceded during cross-examination that her evidence did not tell the whole story. She agreed she worked full-time between July 2019 and February 2021 for Pental Products and then from March 2021 until July 2022 for Kreskas Brothers Transport and that her full-time employment prevented her from working any casual shifts for the Respondent. I also note that the commencement of her employment with Pental Products in July 2019 pre-dated the onset of COVID-19 restrictions by 9 months. The foregoing causes me to distrust the explanation provided by the Applicant in her witness statement that COVID-19 and health issues prevented her from working any casual shifts after May 2018.

• [30] Fourthly, her application for the Part-Time Role in April 2022 was clearly couched in terms of the Applicant having been previously, and not then currently, employed by the Respondent. While the Applicant sought to explain the language of her Part-Time Role application as due to her wanting to ensure she received up to date training if she were successful with her application, I found her explanation unconvincing. The application letter and attached resume is replete with references to her employment with the Respondent in the past tense. She did not at any stage contend in her application for the Part-Time Role or in the subsequent interview process she was a current employee at the time of her application for the Part-Time Role in April 2022.

• [31] Fifthly, the Applicant did not perform any shifts for the Respondent after May 2018 and made no enquiries about available shifts. It strains credulity that the Applicant believes her employment remained on foot for a period of over four years until she commenced in the Part-Time Role on 25 July 2022 despite her not having worked any shifts for the Respondent in the intervening four-year period. The Applicant's conduct was consistent with her casual employment having ended with the Respondent in early 2020. She said as much in the resume attached to Part-Time Role application in April 2022.

• [32] It follows from the foregoing that I am satisfied the Applicant's conduct was consistent with her having been aware of the termination of her employment when it took effect on 7April 2020. Her claims to the contrary are not credible. As such, I am satisfied the Applicant's dismissal was communicated to her and took effect on 7 April 2020. Further, I am not persuaded there was an acceptable reason for any part of what was a long delay in the filing the Application. This weighs against a finding of exceptional circumstances.

• [33] If I am wrong in my above conclusion and if the Applicant was in fact not aware of her dismissal from the Casual Role when it took effect on 7 April 2020, it is appropriate for me to consider the alternative position advanced by the Applicant. That is, she only became aware of her dismissal from the Casual Role on querying her LSL entitlement in November 2024. The chronology of events establishes the Applicant was advised on 28 November 2024 her employment had ceased on 7 April 2020 following which the Applicant engaged with the Respondent until 4 March 2025. She received a copy of the Termination Email on 6 February 2024.

• [34] Putting her case at its highest, the Applicant says she was unaware of her dismissal from the Casual Role on 7 April 2020 until she received a copy of the Termination Email from Ms Mason on 6 February 2025. As a termination of employment is taken not to have occurred until it is communicated to an employee, it may be accepted for the sake of my alternate consideration the Applicant was notified of her dismissal from the Casual Role on 6 February 2025. This means the Application in these circumstances needed to have been filed by midnight 27 February 2025.

• [35] The Applicant explains the further delay in filing the Application on 20 March 2025 was due to her engagement with the Respondent up until 4 March 2025 over the issue of her qualifying service for LSL entitlement calculation. It is clear the Applicant was made aware on 28 November 2024 her employment had been terminated on 7 April 2020. Any doubt was removed when she received a copy of the Termination Email on 6 February 2025. The further communication up until 4 March 2025 was no more than the Applicant continuing to press her argument she had not been advised of her dismissal back in April 2020 and the Respondent restating its position that the break in service caused by the 7 April 2020 termination of employment rendered the Applicant's prior service as a casual employee between 2015-2019 irrelevant for the purpose of calculating her LSL entitlement. In these circumstances I am not persuaded that the Applicant has provided a reasonable explanation for the delay beyond 27 February 2025.

• [36] It follows from the above that the Applicant has failed to advance an acceptable explanation for any part of the delay in filing the Application, be that in circumstances where she was aware of the dismissal when it took effect on 7 April 2020 or in the alternative, where she was not notified of her dismissal until 6 February 2025. Under either scenario, 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

• [37] I am satisfied on the evidence that the Applicant was dismissed on 7 April 2020, she became aware of her dismissal on the same day it took effect and therefore had the benefit of the full period of 21 days within which to lodge the Application. This weighs against a finding of exceptional circumstances.

• [38] The Applicant says she took action to dispute her dismissal when she became aware of it in November 2024 and continued to dispute it up until 4 March 2025. As I have already found, I am satisfied the Applicant was aware of her dismissal when it took effect on 7 April 2020. The fact the Applicant belatedly challenged her April 2020 dismissal needs to be seen in the context of her pursuing recognition of her casual employment service for the purpose of calculation of her LSL entitlement. This criteria does not weigh in favour of a finding of exceptional circumstances.

• [39] The Application was filed 1,787 days outside the 21-day period. I find in the circumstances, there would be significant prejudice to the Respondent if an extension of time were to be granted. This weighs against a finding of exceptional circumstances.

• [40] The 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[21] 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."

• [41] 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"[22] for the purpose of determining whether to grant an extension of time to an applicant to make their application. I have adopted this reasoning.

• [42] The Applicant submits her dismissal was unfair because she did not receive the 3 July Letter, was unaware of the change to her Contract of Employment that enabled dismissal of a casual employee after a 6-month period of inactivity and had not agreed to the change by signing and returning the letter. Additionally, she contends she was not properly notified of her dismissal at the time it took effect, be that in person, by phone or by letter. All of these matters should she says lead to a finding the dismissal was unfair.

• [43] The Respondent contends the Applicant was employed as a casual employee on 12 January 2015 and as part of her casual employment was required to notify her availability for shifts, which she did not do for an extended period of time. She was also notified of a change in her employment contract on 3 July 2018 in which it was foreshadowed casual employees' employment would be terminated if they were inactive for a period of at least 6 months. In April 2020 it was established by the Respondent the Applicant had not worked any casual shifts since May 2018, a period of over 18 months, following which the Applicant was sent an email confirming the termination of employment.

• [44] It is plainly apparent there are significant factual contests, including over whether the Applicant received a copy of the 3 July Letter and whether she was aware of the change to her contract of employment. Even if it were accepted she was unaware of the contract change, there is compelling evidence she was unavailable and did not work any casual shifts for the Respondent over an extended period. This was conceded by the Applicant in circumstances where she had obtained full-time employment elsewhere between mid-2019 and mid-2022. Even on the Applicant's case that she remained employed as a casual employee between 2019 and 2022, her unavailability for casual shifts persisted for a period of four years as her last casual shift was in May 2018. A failure to work any casual shifts or contact the Respondent in that period is consistent with the employment relationship having been terminated, if not by the Respondent then by the Applicant's conduct.

• [45] Notwithstanding the foregoing, 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. The Applicant has an arguable case, to which the Respondent raises a prima facie defence. In these circumstances the merits of the case do not tell for or against an extension of time

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

• [46] 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 there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

• [47] 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 there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

• [48] Because I am not satisfied 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 Act. Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.

[1] Exhibit R2, Contract of employment for 'Sales and Customer Service Officer - Casual Position' dated 6 January 2025

[2] Exhibit R3, Letter to Applicant titled 'Leisure Service Officer - Restructure', dated 3 July 2018

[3] Exhibit R1, Witness Statement of Karen Liveside, at [3]

[4] Exhibit A1, Witness Statement of Vanessa Portia

[5] Exhibit R4, Email to Applicant, titled 'Leisure Services Officer', dated 7 April 2020

[7] Exhibit R7, Job application for Leisure Services Officer - Customer Services Position, dated 29 April 2022

[10] Exhibit A2, Email exchange between Applicant and Respondent re Long Service Leave entitlement, at Court Book p28

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

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

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

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

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

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