Amanda Lach v BSG Distribution Services Pty Ltd - [2025] FWC 361

[2025] FWC 361

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Amanda Lach
v

BSG Distribution Services Pty Ltd

(U2025/505)

COMMISSIONER PERICA

MELBOURNE, 7 FEBRUARY 2025

Application for an unfair dismissal remedy

On 19 December 2024, Ms. Amanda Lach was dismissed from her employment with BSG Distribution Services Pty Ltd (BSG). The reason given was redundancy.

On 10 January 2025, she made an application claiming she was unfairly dismissed from her employment. Unfair dismissal applications are required to made within 21 days of the dismissal taking effect. Her application was one day late

The Commission has power to extend the time for making the application if the Commission is satisfied that there are exceptional circumstances under s 394(2)(b).

On 7 February 2025, I heard Ms. Lach’s extension of time application by way a determinative conference through Microsoft Teams. Ms. Lach appeared and represented herself. BSG was represented by Ms. Holly Gardner, Managing Principal of Grace Solicitors. I granted Ms. Gardner leave to appear. Mr. Bart Miano, a sales manager with BSG also participated in the hearing.

For the following reasons, I have decided not to grant an extension of time and the application in this matter is therefore dismissed.

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

The 21-day period does not include the day on which the dismissal took effect.[1] As a result the first day of the period commences on the day following the dismissal.

If the final day of the 21-day time period falls on the weekend or on a public holiday (where the Commission is closed) the time frame will be extended to the next business day.

If public holidays or weekends fall during the 21 days, this does not extend the time period.[2] In this case, the public holidays between Christmas and New Year do not extend the 21-day period for Ms. Lach to file her application.

The dismissal took effect on 19 December 2024. The final day of the 21-day period was 9 January 2025 and ended at midnight on that day.

Ms. Lach’s application was filed at 2:32 PM (AEDT) on 10 January 2024. It was made one day late. I therefore need to consider whether to make an order to extend the period to make the application.

I may allow a further period for an unfair dismissal application if I am satisfied there are exceptional circumstances, taking into account:

(a) Ms. Lach’s reason for the delay;

(b) when Ms. Lach first became aware of the dismissal after it had taken effect;

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

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

(e) the merits of the application; and

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

Each of these matters must be considered in assessing whether there are exceptional circumstances.[3] I set out my consideration of each matter below.

Reason for the delay

Ms. Lach explained the reasons for filing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 361
Decision Date: 7 FEBRUARY 2025

CaseChat Overview and Summary

Amanda Lach was dismissed from her employment with BSG Distribution Services Pty Ltd, and she applied for an unfair dismissal remedy one day late. The Fair Work Commission (FWC) had to determine whether the application was made within the statutory time period of 21 days, and if not, whether exceptional circumstances existed to justify an extension of time. The dismissal took effect on 19 December 2024, and the application was lodged on 10 January 2025, one day past the deadline. The Commission must consider several factors to determine if there are exceptional circumstances justifying an extension of time.

The reasons provided by Ms. Lach for the delay, including her mental health, the timing of the dismissal around Christmas, and her lack of knowledge about the FWC and unfair dismissal jurisdiction, were found to be unexceptional. Self-diagnosed mental health issues, the occurrence of Christmas, and ignorance of the law are not unusual or special circumstances. Ms. Lach's failure to take any steps to dispute the dismissal before filing her application also counted against her. The prejudice to BSG was considered neutral, as the one-day delay was unlikely to cause significant harm. The merits of Ms. Lach's application and the fairness between her and others in similar positions were also neutral factors.

Taking all the factors into account, the Commission was not satisfied that exceptional circumstances existed to justify an extension of time. The application for an extension of time was therefore dismissed.

Orders