Amanda Lach v BSG Distribution Services Pty Ltd
[2025] FWC 361
•7 FEBRUARY 2025
| [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 her application 1 day late in her written submissions and in oral evidence.
Ms. Lach has “struggled with her mental health”
Ms. Lach on her mental health reason
In her written submissions she gave, as one of her reasons, her mental health:
“My redundancy took place on Thursday 19th December 2024 in a public place of my work. I have struggled with my mental health since my redundancy as the embarrassment and humiliation I felt as my termination was witnessed by Bunnings team members and other representatives from different suppliers. I quickly became talk of the stores and have struggled with this.”[4]
In her oral evidence, she stated she had self-diagnosed her mental health problems and that it led to a delay in the filing of her application because she was “not functioning” and was “vomiting” and had “diarrhoea”.
BSG on mental health
BSG made the following submissions about the claim of mental health:
“[Ms. Lach’s] reason of mental health has no basis as the Applicant was offered psychological services by letter dated 16 December 2024 and the Applicant was given a brochure of psychological services during this period.”[5]
The redundancy happened just before the Christmas Break
Submissions of Ms. Lach
In her written submissions, Ms. Lach claimed the fact the dismissal happened just before Christmas was a reason for the delay:
“My redundancy also happened just before Christmas which is a sacred time in which there are Public holidays involved.”[6]
Ms. Lach elaborated in her oral evidence that Christmas was the “second most holy celebration in the Christian calendar” and she had to “prepare for a function”.
Submissions of BSG on the Christmas Break reason
BSG made the following submission on this issue:
“[Ms. Lach] was dismissed on a work day on 19 December 2024 and there were approximately 12 business days available to the Applicant to arrange for the Application to be filed within 21 days from the date of the dismissal.”[7]
Lack of awareness of the Commission or the unfair dismissal jurisdiction
In her oral evidence Ms. Lach stated:
“I didn’t know how to go about this. I had tried contacting fair trading and the options were not given to me…. I know someone else who was made redundant at another company. I asked her where she went to and that’s when I stumbled on fair work.”
When I asked her what date she “stumbled on fair work” she said “|I think that was the first afternoon before I submitted, which was Thursday 9th January.”
In response to this argument, Ms. Gardner submitted that ignorance of the law was not an exceptional circumstance.
Consideration
Exceptional circumstances are to be given their ordinary meaning. Exceptional circumstances are out of the ordinary course, unusual, special or uncommon. The circumstances do not need to be unique, nor unprecedented nor very rare.
Mental Health
Deputy President Easton has helpfully summarised the approach of the Commission where mental health is claimed as a reason for delay in Bianca Mamo v. ICLED Australia Pty Ltd (with emphasis added):
“It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However, the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit.
In summary the following principles apply:
(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves….
(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant’s capacity to lodge the application within the statutory time limit …
(iii) the evidence should positively demonstrate that the applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame …and
(iv) an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient…”[8]
Applying these principles, Ms. Lach’s self-diagnosis of mental health problems and claimed psychological incapacity are not enough to found mental health as an adequate reason for delay.
The fact she was informed of her redundancy in a public place might be regarded as less than satisfactory for an employee of 15 years. However, the fact she suffered distress, shock and confusion cannot be described as unusual, special or uncommon. The physical symptoms she describes may be uncommon, however, consistent with approach in Mamo, without “proper and specific medical evidence” I cannot ascribe these symptoms to her self-diagnosed mental health condition.
Christmas Break reason
The fact the period following her dismissal included Christmas and New Year is unexceptional. The annual celebration of Christmas and the religious observances that occur during this period cannot be regarded as unusual.
Unfortunately, dismissals routinely take place at Christmas time. As a matter of law, no additional days are added to the time for filing an application by reason of public holidays occurring during the post dismissal period unless the final day occurs on a public holiday.
Ignorance of the Fair Work Commission and the unfair dismissal jurisdiction
It is well settled ignorance of the law by non-lawyers is routine rather than exceptional.
Relevance of the short time period to the reasons for delay
Where an applicant has filed her application one day late, it does not weigh in favour of a discretion to extend time, nor does it militate against the need for a satisfactory explanation for the delay. I adopt the observation made by Deputy President Gostencnik in Ozsoy v. Monstamac Industries Pty Ltd:
“The fact that the application was lodged one day late does not take the matter further. Whether the delay is one day or one year, there must be an acceptable explanation for the delay.”[9]
None of the reasons provided by Ms. Lach are adequate reasons for the delay either collectively or individually. A self-diagnosis of mental health issues following a dismissal can be regarded as common. Dismissals at Christmas time are commonplace, and ignorance of the law is not special or uncommon.
It follows the reasons Ms. Lach gives for the delay are unexceptional. This factor counts against an extension of time.
When did Ms. Lach first become aware of the dismissal after it had taken effect?
Ms. Lach was notified of the dismissal on 19 December 2024. She had the benefit of the full period of 21 days to lodge the unfair dismissal application.
This factor is neutral in a consideration of whether to extend time.
What action was taken by Ms. Lach to dispute the dismissal?
It is not contested Ms. Lach took no steps to dispute her dismissal before lodging the application.
This factor counts against an extension of time.
What is the prejudice to BSG (including prejudice caused by the delay)?
BSG made the following submissions on prejudice it suffered:
“The employer's position is prejudiced. The employer is spending legal fees on technical arguments on a case that has no merit. The Application states the Applicant was made redundant based upon the loss of a major account of the Respondent and also says the Applicant was given notice of a meeting to discuss the proposed redundancy and the option of a support person and attended a meeting to discuss the matter. The Applicant says that she was made redundant the next day at a second meeting. The Application by the Applicant itself demonstrates the Respondent has carried out due process for the redundancy by consulting with the Applicant first and giving the Applicants response fair consideration, before terminating her employment based upon redundancy.”[10]
In exercise of my discretion, I am required “take into account” each of the six factors prescribed in s 394(3). If BSG wishes to advance an argument the application “has no merit” that is a matter to be considered in relation to s 394(3)(e), not s 394(3)(d). I will consider this argument in assessment of that factor. To consider a merits argument on the issue of prejudice would allow employers to “double dip”. As a matter of construction, such an approach would militate against the words of s 394(3).
During the hearing, I asked Ms. Gardner whether she would concede BSG is unlikely to have suffered forensic prejudice by reason of a one-day delay. She resolutely refused to make this concession. I asked Mr. Miano, who participated in the hearing, and was involved in some of the meetings in issue in the proceeding, whether he “remembered what went on” and he said “Yes, pretty much yes.”
I find the twenty-four-hour delay would not prejudice BSG in the prosecution of its case. It follows this factor is neutral in a consideration of whether to extend time.
What are the merits of the application?
Merit arguments of Ms. Lach
Ms. Lach sets out the reasons why she says her dismissal was unfair in her form F2. In that document she takes issue with the process by which she has been made redundant and she alleges the job she was performing is now being performed by someone else:
“I am a sales representative, and my job involves me servicing accounts within Bunnings. My previous employer made the NSW State Manager redundant as he was based in Victoria and the company wanted a state-based manager.
The employer then offered the position to a representative who was also full time on the road. Sarah accepted the position and commenced her role as state manager on 1/10/2024. Her role changed so she now only covered 2 stores on the road which would entail 1 day, and the remaining 4 days were managerial duties.
The same week the business lost a major account and were given the required 3 month's notice for cease of services. After approximately 8 weeks of the new state manager carrying out the new role she went on sick leave, this leave had continued so the Queensland state manager had taken on the additional duties of NSW state manager.
I received an email on Monday 16th December from Mark Tysoe Director saying a meeting was going to be held on Wednesday 18th December to discuss my ongoing role within the company. A time was set and an additional email was sent saying I was able to bring a support person and was able to access counselling. The meeting took place in a public cafe at Bunnings Blacktown in full view of other sales representatives and customers in which changes to the business were being conducted and a full time position was going to be made redundant. A second meeting was held on Thursday 19th December 2024 in a public place in the cafe at Bunnings Minchinbury in which I was told my position was redundant.
I believe my redundancy was an unlawful dismissal as Sarah who had been promoted to state manager is coming back on the road as a sales representative again as her role as state manager did not work out so she has been given hours back on the road and my job has been made redundant to make room for this to happen.”[11]
BSG argument that the application has “no merit”
The position of BSG in relation to the merits is adequately summarised in the submission that it has been in respect to the issue of prejudice above at paragraph [37].
On the very limited material before me, the submission that Ms. Lach’s application has “no merit” seems an overstatement. At first blush, there appears to be at least an arguable case the consultation provisions of the Commercial Sales Award 2020 may not have been complied with. Also, the way the termination was effected (particularly as it was not done in private) may arguably be harsh for a person who had been employed for fifteen years. I would need to hear evidence and full submissions from both parties before I could reach a concluded view on these matters.
I cannot assess the genuineness of the redundancy, the consultation process engaged in, nor Ms. Lach’s claims that a current employee of BSG does the job she had without the benefit of a full hearing. The merits turn on contested facts. It is not appropriate for the Commission to resolve contested facts in an extension of time application. In the absence of a full hearing, it is not possible to make any firm assessment of the merits.
This factor is therefore neutral in a consideration of whether to extend time.
Fairness as between Ms. Lach and other persons in a similar position
Neither party made submissions on this issue. There is nothing for me to weigh in my assessment of whether there are exceptional circumstances under s 394(3)(f). It follows this factor is also neutral to a consideration of whether to extend time.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
· Reasons for Delay: The reasons for delay do not provide an adequate explanation for the delay. The self-diagnosis of her mental health issues and their symptoms, the fact the dismissal was around Christmas time, and the fact Ms. Lach was ignorant of the Fair Work Commission and the unfair dismissal jurisdiction are not adequate reasons to explain the one-day delay. Therefore, this factor counts against an extension of time under s 394(3)(a).
· Action to dispute the dismissal: It is not contested Ms. Lach took no action to dispute her dismissal prior to filing her application. This factor counts against an extension of time being granted under s 394(3)(c).
The considerations in s 394(3)(b), (d) (e) and (f) are neutral factors in an assessment of exceptional circumstances for the purposes of s 394(3):
· Notification of the Dismissal: Ms. Lach was notified of her dismissal on 19 December 2024. She had the benefit of the full 21-day period to lodge her unfair dismissal application.
· Prejudice to the employer: BSG made no compelling submissions that it would suffer prejudice by reason of the one-day delay.
· Merits: On the untested and limited evidence before me, I am not able to assess the merits as a factor in determining whether I should grant an extension of time.
· Fairness between persons: No submissions were made on fairness arising between Ms. Lach and other persons in a similar position.
I conclude the reasons for the delay under s 394(3)(a) and the failure of Ms. Lach to dispute her dismissal under 394(3)(c) both count against an extension of time granted. All the other factors in s 394(3)(b), (d), (e) and (f) are neutral.
Two factors count against an extension of time being granted. The rest are neutral considerations. Therefore, on balance, taking into account all the factors under s 394, I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.[12]
COMMISSIONER
Appearances:
Ms. Amanda Lach, the Applicant, for herself.
Ms. Holly Gardner of Grace Solicitors on behalf of the Respondent.
Hearing details:
7 February 2025
Microsoft Teams
[1] Singh v BSG Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2]Ken Ormond v. Pilbara Logistics WA Pty Ltd[2014] FWC 1673, [5]
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Digital Commission Book (DCB) at 23.
[5] DCB at 25.
[6] DCB at 23.
[7] DCB at 25.
[8] [2021] FWC 3903, [24]-[25].
[9] [2014] FWC 479, [21].
[10] DCB at 26.
[11] DCB at 2-3.
[12] PR784144.
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