Ahsen Soybas v Task Retail Pty Ltd

[2025] FWC 411

[2025] FWC 411

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Ahsen Soybas
v

Task Retail Pty Ltd

(C2024/8349)

DEPUTY PRESIDENT CROSS SYDNEY, 28 FEBRUARY 2025

Application to deal with contraventions involving dismissal

1. This decision arises from an Application to the Fair Work Commission (the Commission) by Ms Ahsen Soybas (the Applicant) for an extension of time for the lodgement of an application for a general protections remedy (the Application), pursuant to s.365 of the Fair Work Act 2009 (the Act).

1. The Applicant was notified of her dismissal from employment with Task Retail Pty Ltd (the Respondent) on 28 October 2024. Accordingly, the Application should have been filed by midnight on 18 November 2024.The Application was lodged on 20 November 2024 and was 2 days out of time.

1. The Act allows the Commission to extend the period within which a general protections 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.[1] 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.[2]

1. The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day14-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.

1. Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a)   the reason for the delay;

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

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

(d)   the merits of the application; and

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

1. 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 consider these matters in the context of the Application.

Background

1. The Respondent operates in the information technology and communication industry. The Applicant commenced employment with the Respondent on 13 May 2024 as a Technical Writer.

1. During the Applicant’s employment, the Respondent conducted a disciplinary process due to the Applicant’s performance and conduct.

1. On 28 October 2024, the Respondent conducted a meeting with the Applicant to terminate her employment summarily.

1. On 28 October 2024, the Applicant was issued with a termination letter confirming her employment was terminated as of that date. The Termination Letter relevantly stated:

Termination of your employment

We refer to our meeting today. As discussed, we have reviewed your performance during your period of probation and, regrettably, confirm that you will not be offered on-going employment in this position.

The reason for termination of your employment is due to underperformance.

Accordingly, we confirm that your employment with us is terminated effective today, 28 October 2024.

You are not required to work out your notice period of 1 week, 1 week’s payment in lieu of notice will be paid out to you.

Your untaken Annual Leave will be paid out to you on 29 October 2024.

The Company would like to take this opportunity to remind you of your implied and express contractual obligations which continue to apply post-termination:

Confidentiality and intellectual property

Confidentiality clause 17 and Intellectual Property clause 18 of your employment contract prohibit you from using Confidential Information for any purpose other than the Company’s benefit either during or after your employment with the Company. This includes client details, data and and other company specific information.

The Company may take steps to enforce these obligations if the Company becomes aware of any breach by you.

You are required to hand over all property belonging to Task Retail Pty Ltd to me (laptop).

Ashen, we wish you all the best going forward. Please note that our EAP service remains available to you and your family for 3 months, until 28 January 2025.. You can contact them on the below details:

[Emphasis added]

1. On 4 November 2024, the Applicant emailed Mr Ritchie, the Human Resources Business Partner for the Respondent, seeking provision of a separation certificate. There were other emails sent by the Applicant regarding Laptop and charger returns, and payroll discrepancies.

1. On 20 November 2024, the Applicant filed the Application with the Fair Work Commission. The Applicant filed a statement dated 16 January and a response document dated 29 January 2024. On 28 January 2024, the Respondent filed an Outline of Submissions and a Statement of Jamie Ritchie, the Human Resources Business Partner for the Respondent.

1. The Hearing was conducted over Microsoft Teams on 12 February 2025.

Reason for the delay

1. The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. 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.[3]

1. The Applicant incorrectly noted on her Form F2 that her Application was being lodged within the 21 day timeframe. The Applicant submits that she was under the mistaken belief that her dismissal took effect on 4 November 2024, due to a misunderstanding regarding her notice period.    

1. The Applicant argues that she was informed by her supervisor that she had one week of notice and was not required to work during this period, leading her to believe her employment ended on 4 November 2024.

1. The Respondent submits that the Applicant has not provided any reasonable explanation for the 2-day delay in filing the application. The Respondent contends that the termination letter explicitly stated the termination date as 28 October 2024, and the Applicant was paid one week’s notice in lieu of working.

1. The Applicant also accepted that she was aware of the 21-day limitation period at least 7 days prior to the expiry of that 21 day21-day limitation period. While the Applicant claimed shock, the Applicant was not unable to advance her claim. She was able, within the 21 day21-day period, to send numerous emails advancing various claims and enquiries.

1. It is clear that the Applicant simply chose not to comply with the 21-day limitation period. That is not an exceptional circumstance. The absence of an acceptable explanation weighs against the Applicant.

Action Taken to Dispute the Dismissal

1. The Applicant contends that she took prompt action to dispute her dismissal by seeking clarification on her notice pay and attempting to resolve the issue with the Respondent. The Applicant states that she was in shock and distress following her dismissal, which contributed to the delay in filing her application.

1. The Respondent argues that the Applicant took no action to dispute her dismissal within the 21-day period. The Respondent asserts that the Applicant was capable of filing the application within the legislative timeframe but failed to do so.

1. In all the circumstances, I do not find that the Applicant took any action with the Respondent to dispute the dismissal after it occurred. I consider this factor, however, is a neutral consideration.

Prejudice to the employer

1. The Respondent submitted that it has already been required to spend substantial time and money to defend the Applicant’s vexatious and baseless claim, and the exercise of the discretion to extend the time for filing would require the Respondent, to defend the Application in circumstances which it would otherwise be barred because of the Applicant’s failure to comply with the time limit.

1. The Respondent further submitted that should the Applicant be granted extension of time, the Respondent would suffer economic hardship and would be unfairly prejudiced as a result.

1. There is no current evidentiary basis to the claim that the Application is vexatious or baseless. The Respondent will only have to further defend the matter where exceptional circumstances are found.

1. A delay of two days would not be likely prejudice the employer. In the circumstances, I consider this consideration to be neutral.

Merits of application

1. This is a general protections claim. I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues.”

1. In the matter of Kornicki v Telstra-Network Technology Group[4] a predecessor of the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. 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.”[5]

1. I adopt this reasoning of the Full Bench of the former Commission in relation to the consideration of merits. I consider that this is a neutral factor.

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

1. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

1. As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any significant weight, being the absence of any acceptable reason for delay, weighs in favour of a conclusion there are not exceptional circumstances. None of the factors weigh against such a conclusion.

1. Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together.

1. 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.366(2). Accordingly, the Application must be dismissed.

DEPUTY PRESIDENT

Appearances:

Ms A Soybas, the Applicant.

Ms M Noorzai, Solicitor on behalf of the Respondent.

Hearing details:

12 February 2025.
3PM.
Microsoft Teams.

Printed by authority of the Commonwealth Government Printer

<PR784266>

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

[2] Ibid.

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

[4] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[5] Ibid.

Printed by authority of the Commonwealth Government Printer

<PR784266>