Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application - whether to extend time - application dismissed

• [1] Yanjun Liu has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Hills Health Pty Ltd (Hills Health) objects to the application on the basis that it was filed out of time. Section 394(2) of the Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). The applicant was dismissed on 20 December 2024. The 21-day period ended on 10 January 2025. The application was lodged on 17 January 2025, one week out of time. In order for her application to proceed, Ms Liu requires an extension of time. The Act permits the Commission to extend time only if it is satisfied that there are 'exceptional circumstances' taking into account the matters in s 394(3).

• [2] As to the reason for delay (s 394(3)(a)), the applicant said that she had a mental health condition that affected her mood, focus and attention. She submitted a letter from her doctor stating that during the period between her dismissal and the filing of her application, her condition 'significantly impaired her ability to initiate and complete the application process.' The letter stated that the applicant experienced severe difficulty in concentration, heightened anxiety and reduced cognitive function, which made it 'challenging for her to process legal information, make timely decisions, and complete the necessary paperwork within the required timeframe.' The letter concluded that the applicant was 'unable to submit her claim by the standard deadline'. I accept that the applicant is suffering from the mental health condition described in the letter but I do not accept the conclusion that it rendered her unable to lodge her application on time. This conclusion is not consistent with the applicant's submissions at the hearing, in which she described in some detail her numerous approaches to various legal advisers seeking assistance with her claim, in the course of which she rejected a suggestion that she lodge a general protections claim, because this was not what she wanted to do. To do these things required significantly more concentration and cognitive function than filling out a short, simple form F2 application. The applicant's mental health condition did not prevent her from lodging it one week late. I am not persuaded that it prevented her from lodging it on time. The reasons for the delay weigh against an extension of time.

• [3] As to the matters in ss 394(3)(b), (c), (d) and (f), I note the following: the applicant does not claim to have become aware of the dismissal after it took effect; the applicant says that she took other action to dispute the dismissal by seeking out legal advice, but this is of little moment; there is no apparent prejudice to the employer; and I do not consider that there are any matters that are relevant to fairness between the applicant and other people in a similar position. These are neutral matters.

• [4] As to the merits (s 394(3)(e)), the applicant stated in her application that the dismissal was unfair for various reasons, including because it was in retaliation for her having raised various concerns and complaints, including with WorkSafe, and for having taken sick leave in the lead up to her dismissal. The respondent denied this and said that it dismissed Ms Liu simply because she no longer had the legal right to work in Australia, as her working visa had expired on 8 November 2024. The respondent said that it had contacted the applicant about this on multiple occasions, but she did not respond until 25 November 2024, stating that she was working on the visa issue with her migration lawyer. Based on the information before me, I consider that the merits of the case weigh strongly against an extension. In my opinion, even if there had been a good medical reason for the delay, that would be outweighed by the weak merits of the case.

• [5] The Commission can extend the time for making an unfair dismissal application only if it is satisfied that there are exceptional circumstances. Taking into account the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case. Consequently, there is no basis for the Commission to extend time. Further, even if the discretion to extend time were enlivened, I would not exercise it in this particular case.

• [6] The unfair dismissal application is dismissed.

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