Clare Thrift v AQC Dartbrook Management Pty Ltd

Case •

[2025] FWC 532

•

21 FEBRUARY 2025
[2025] FWC 532

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Clare Thrift
v

AQC Dartbrook Management Pty Ltd

(U2025/553)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 21 FEBRUARY 2025

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed

Introduction

  1. This decision concerns an application by Ms Clare Thrift (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against her former employer, AQC Dartbrook Management Pty Ltd (Respondent).

  1. The Applicant seeks an extension of time to lodge her unfair dismissal application in the Fair Work Commission (Commission).

  1. The Applicant’s dismissal from her employment with the Respondent took effect on 20 December 2024. The Applicant lodged her unfair dismissal application in the Commission on 15 January 2025.

  1. Section 394(2) of the Act states that 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 Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 10 January 2025. The application was therefore filed five 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). 

  1. 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.[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 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.

  1. Section 394(3) 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)   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);

(e)   the merits of the application; and

(f)    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 will now consider these matters.

Reasons for the delay

  1. The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

  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.[5]

Relevant facts and submissions

  1. In an email to the Commission sent on 7 February 2025, the Applicant provided the following information in support of her request for an extension of time:

“Thank you for your prompt response. I note that the application was 5 days late. However, there were extenuating circumstances relating to my termination which I hope you will take into consideration and permit an extension of time.

·The first notice of the termination was sent via email on 17 December 2024 at 11:01PM, which is the date that the termination became effective.

·I did not see the email until the morning of 19th December 2024 as my child was ill on the 18th December and I had to be at home and take carers leave.

·On 20 December 2024, I then received a second letter advising an confirmation of immediate release, effective immediately. Request for Company property to be returned. No details on where and to whom I was to return the items to. i.e. Sydney office 4hr drive, Brisbane 8hr drive. I was based in the Muswellbrook office.

·I was aware that if the termination was due to the role becoming redundant that I would not be entitled to challenge the termination.

·However, if the termination was for other reasons then I was aware that I had certain rights, including the right to be provided with a warning before the termination took effect.

·There was no previous verbal or written notice given to me that my role would be terminated. In fact, my supervisor, Mr Theo Renard (Chief Financial Officer) was also not aware that my role was being terminated until after the termination took effect.

·I then attempted to contact Mr Craig McPherson on the 19th and 20th of December to enquire the reasons for the termination on [sic]. He did not respond to my phone calls.

·From the period 21 December to 6 January the office was closed for the Christmas break and there was no one whom I could speak to about the reasons for the termination.

·I believe that the two weeks of office closure significantly impacted on my ability to file an application as I remained uncertain about the cause of the termination.

·On 14th January I then sent an email to Mr McPherson to enquire whether the termination was the result of a redundancy or termination without cause. I did not receive a response from Mr McPherson.

·I also discussed the termination with Mr Renard, who was also not aware of the reason for the termination. However, Mr Renard was of the view that the role was not redundant and that they still needed the role filled.

·I had been in the role since 2021 and was a good employee. I had never received negative feedback and maintained an exemplary clean record of employment during my time with Australian Pacific Coal.

·Therefore, on 15th January 2025, I sought personal advice and decided to file an unfair dismissal claim.

·To date the Company has not responded to my request for an explanation for the termination. I can only assume that given the role is not redundant that this was termination without cause.

I am of the view that the notice of termination was deliberately sent during the week before Christmas at 11PM on the 17th December as it would not give me an opportunity to discuss or challenge the termination. I believe this has prejudiced my position in respect of the termination and that the employer did this knowingly and intentionally. This was not a fair and proper way to inform me of the termination of my employment and all attempts by me to have a discussion with the employer was ignored. To date, I have yet to receive a response to my email correspondence in relation to the nature of the termination.

Without the necessary information it was difficult for me to challenge the dismissal directly with the employer. This is why I referred the matter to the Commissioner and filed for an unfair dismissal claim as I was not provided with any reason for the termination. Unfortunately due to the delays that were caused directly by the employer my application was late.

I hope the above gives a clear outline of the circumstances and the reasons why the application was filed outside of the 21 day limit. I would greatly appreciate your kind consideration of these extenuating circumstances and provide the necessary extension for my matter.”

  1. In a further email sent to the Commission on 17 February 2025, the Applicant provided the following information:

“As per below I am very sorry I couldn’t connect due to technical issues. I did want to mention the below things to you:

1. I am interested in getting reinstated into my job
2. I live in a rural area where work is limited
3. Chances of me finding a similar job are very low
4. There is a need for my job and it was not made redundant
5. The mine site and AQC still need administration staff (company director can confirm)
6. Administration jobs have been given to other people (CFO can confirm)
7. I feel I was terminated as retribution more than anything. I feel the termination came as i was part of a larger whistleblowing drama where I identified certain unethical behaviour onsite with multiple persons.
8. No warning of my termination was given
9. I have been under enormous stress financially and emitional stress since being terminated. And at Christmas was very heartless.

I hope you are able to take the above into account in my absence today.

Sorry again.”

  1. Although I have sympathy for the Applicant, taking into account all the circumstances, I do not consider that the matters relied on by the Applicant, considered individually or collectively, provide an acceptable or reasonable explanation for the five day delay in filing her unfair dismissal application. The letter of termination did not inform the Applicant of the reasons for the decision to terminate her employment. However, I consider that the Applicant was in a position on 20 December 2024 to form an opinion as to whether her dismissal was unfair. The Applicant believed that she had performed well in her role and there was a need for her role on an ongoing basis.

  1. The absence of an acceptable or reasonable explanation for the five day delay in lodging the application on 15 January 2025 weighs against the Applicant’s contention that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

  1. The Applicant was aware of her dismissal on the day it took effect and therefore had the full period of 21 days to lodge her unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

  1. It is apparent from the information set out in paragraph [11] above that the Applicant made various enquiries about her termination in the period between 20 December 2024 and 15 January 2025, but I do not consider that the Applicant took action to dispute her dismissal, other than filing her unfair dismissal application in the Commission. This is a neutral consideration.

Prejudice to the employer

  1. I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

  1. The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed, and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.

  1. The Applicant says that she performed well in her role and no reason has been provided for her dismissal.

  1. The Respondent provided the following response to the Applicant’s contentions in its Form F3 Response:

“The applicant was employed under an agreement which provided for three months’ notice of termination of such arrangements. The application was provided such notice and has been paid out the relevant notice period. The agreement with the applicant provides that any payment made in lieu of notice under the agreement may be offset against any entitlement under an award (including redundancy).”

  1. Compliance with contractual obligations may be relevant to whether a dismissal was unfair or not, but it is not determinative. For example, an employer may have a contractual right to terminate an employee’s employment on the giving of a particular period of notice. But if there is no valid reason for the dismissal and no procedural fairness was afforded to the employee prior to their dismissal, it is likely that the dismissal will be found to be unfair.

  1. On the basis of the limited information before the Commission, I consider there to be some merit to the Applicant’s unfair dismissal case. This weighs in support of a finding of exceptional circumstances.

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

  1. 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.

  1. Neither party made any submissions in relation to this factor. In all the circumstances, I consider this factor to be a neutral consideration.

Conclusion

  1. Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. The Applicant does not have an acceptable or reasonable explanation for the five day delay in lodging her unfair dismissal application in the Commission. Apart from the merits of the application, the other relevant factors are neutral or of little weight. The merits of the application weigh in favour of a finding of exceptional circumstances. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

  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 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT


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

[2] Ibid.

[3] Long v Keolis Downer[2018] FWCFB 4109 at [40]

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

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

Printed by authority of the Commonwealth Government Printer

<PR784629>

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0