Danina Sutton v Brimbank Pre-School Association Inc
[2025] FWC 2891
•29 SEPTEMBER 2025
| [2025] FWC 2891 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Danina Sutton
v
Brimbank Pre-School Association Inc.
(U2025/11921)
| COMMISSIONER YILMAZ | MELBOURNE, 29 SEPTEMBER 2025 |
Application for an unfair dismissal remedy – application lodged out of time – application dismissed
Ms Danina Sutton (the Applicant) commenced employment with Brimbank Pre-School Association Inc. (the Respondent), on or about 8 May 2023 as a full-time Risk and Compliance Manager.
It is not in contention that Ms Sutton tendered her resignation on 2 May 2025 in writing. However, Ms Sutton contends that she was forced to resign.
The Applicant has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act). She alleges she had no choice but to resign because she says her only choice was to either remain on unpaid leave or tender medical evidence which her own doctor considered excessive and exposed her private medical circumstances unreasonably or unlawfully. The options to her, she says, was no real choice other than to resign.
Ms Sutton delayed her unfair dismissal application because she sought a remedy through the Respondent’s internal review process. This application was subsequently lodged on 21 July 2025.
The Respondent objects to the application on the basis that the application has not met the statutory 21-day limit.
Application was filed outside the statutory timeframe
Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.
The Applicant’s employment was terminated with effect from 2 May 2025, on receipt of the Applicant’s letter of resignation emailed to the Respondent on the same day.
Based on a termination date taking effect on 2 May 2025, the application for a remedy should have been lodged by no later than 23 May 2025.
The application was therefore lodged outside of the time prescribed and 59 days after the last date on which it could have been made. The Act allows the Fair Work Commission (the Commission) to extend the period within which an application for an unfair dismissal remedy may be made. The principles that are to be applied in considering whether I should exercise my discretion to extend the time limit require consideration of the text of s.394 of the Act. The statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:[1]
· the reason for the delay,
· whether the Applicant first became aware of the dismissal after the date it took effect,
· any action taken by the Applicant to dispute the dismissal,
· prejudice to the Respondent including prejudice caused by the delay,
· the merits of the application, and
· fairness as between the Applicant and other persons in a similar position.
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. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.[2]
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 or unprecedented, nor do they need to be very rare.[3] I must be satisfied, taking into account s.394(3) that there are exceptional circumstances.
I now consider these matters in the context of the Application.
a) Reason for the delay
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.[4]
The Applicant submits that her application is late because following her resignation she contacted the Respondent’s Board on 13 May 2025 to report the conduct of the interim CEO and HR Manager seeking an internal review. This review request sought a response by 27 May 2025. Ms Sutton submits that this deadline would still allow her to make an application within time. She submits that initially she was confident that the Board would consider her complaint but as time went by, she reasoned that the Board was disingenuous in addressing her complaint.
Ms Sutton submits that she followed up further seeking a response as the delay in investigating her grievance was causing her harm. The Acting President of the Board wrote to the Applicant on 16 May 2025 suggesting if she wished to provide any information in support of the harm she says she has suffered due to a lack of resolution she may send it to the Acting President.
Ms Sutton contends that the delay and ultimately silence from the Respondent was apparent to her that the Respondent had not acted in good faith and she filed this application.
Ms Sutton suggests the delay was intentional to prevent a potential application being made on time.
It is apparent that Ms Sutton was aware of her requirement to file her application within the 21-day limit. Although, seeking a resolution through an internal process as the reason for filing the unfair dismissal application late is not ordinarily a reason considered exceptional in circumstances to warrant an extension of time.[5]
I observe that Ms Sutton in her grievance was not seeking a reversal of her resignation and reinstatement, but a review of the actions of two staff members, which she says constitute breaches of her workplace rights and protections, but also placed her in a position which left her no choice but to resign. The grievance seeks resolution by the payment of compensation for her forced leave and unpaid time she was stood down.
In her formal grievance letter, Ms Sutton provides extensive material and attaches evidence in support of her submission of adverse action and unfair treatment that she experienced despite providing medical evidence supporting her capacity to perform her job. Despite this medical evidence, the two staff members imposed on her further detailed requirements before she would be permitted to return to work. Ms Sutton’s grievance was acknowledged as received on 15 May 2025 by the Acting President and an undertaking was given to provide a response by 27 May 2025. However, on 21 May 2025, the Acting President wrote explaining the process to be adopted with no indication of the timeframe to resolve the grievance other than stating that the Respondent takes the grievance seriously and is committed to resolving the issues as expeditiously as allowable for procedural fairness. Ms Sutton requested an update on the investigation, and she was informed on 12 June that the review of her complaint is underway and to expect a conclusion in the next 4 weeks, however, the Acting President did not give a hard deadline.
At this stage, some 4 weeks had passed, and Ms Sutton followed up again on 11 July which now was 8 weeks with no contact to seek clarification or confer on any of the evidence. The response from the Respondent[6] made it clear that no conclusion date could be offered. Reasonably the Applicant concluded that the Respondent had not in good faith, nor intended to, investigate her grievance and resolve it “expeditiously.” At the hearing the Respondent confirmed that it abandoned the investigation due to the unfair dismissal application. This response did nothing other than heighten Ms Sutton’s concerns that the Respondent at no time intended to genuinely resolve her grievance,[7] and based on the evidence it is in my view a reasonable conclusion.
I empathise with the Applicant that the conduct or lack of it, in response to her grievance on its face appears disingenuous, and the fact that the Applicant was initially hopeful that the Respondent would resolve her grievance based on her observation of past conduct when dealing with employee matters. Unfortunately for Ms Sutton her expectation for a resolution of her grievance through the internal process does not meet the test of exceptional circumstances. Decisions dealing with delay because an Applicant pursues an internal review process is not deemed to suffice for an extension of time and consistent with the authorities, Ms Sutton’s reasons for the delay similarly must also weigh against an extension.
b) Whether the Applicant first became aware of the dismissal after the date it took effect
Turning then to the question of whether the applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant tendered her resignation in writing by email on 2 May 2025.
The clarity of the date of termination, followed by removal of access to communications and a letter accepting the resignation was clear and unambiguous evidence that the employment came to an end. This unambiguity does not assist the Applicant’s application for an extension of time.
In the circumstances, that is a matter that weighs against the Applicant.
c) Action taken by the Applicant to dispute her dismissal
Turning next to the question of the action taken by the Applicant to dispute her dismissal. The evidence was that the Applicant wrote to the Board detailing a grievance in relation to the conduct of two staff which led to what she describes as adverse action and unfair.
I observe the grievance was not seeking a reversal of the resignation but rather a complaint about how she was treated which led to her resignation, which she says was forced, together with compensation for her stand down.
The grievance was raised through the available internal complaint process after the resignation and is evidence of Ms Sutton’s complaint about her termination of employment as contemplated by s.394(3)(c) of the Act. In the complaint she also raises serious breaches of legislation and possible litigation. The Respondent submits no action was taken other than filing the unfair dismissal application. I disagree and on the basis of the grievance and corresponding communications, I accept that Ms Sutton placed the Respondent on notice that further action was highly likely and therefore this evidence falls in favour of an extension of time.
In the circumstances, that is a matter that weighs in favour of the Applicant.
d) Prejudice
Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour for an extension of time.
The Respondent does not contend prejudice, nor the Applicant assert disadvantage arising from the delay. However, consistent with the authorities the mere absence of prejudice does not weigh in favour of an extension therefore I consider this a neutral factor.
e) Merits of the application
As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.
The Applicant submits that she was unfairly stood down from duties after her medical episode of 9 April 2025. This stand down was without pay, thereby pressuring Ms Sutton to exhaust her leave entitlements and once she no longer had any leave, the indefinite stand down period[8] was without pay. Despite having a medical report that identified the reason for the episode was dehydration with no requirement for follow up medical treatment, the Respondent did not accept this evidence, being the hospital report, and instead insisted on further (and extensive) medical examinations and a report at the Applicant’s expense before she would be permitted to return to work. Further, the Respondent’s letter of 10 April 2025[9] states it is open to alternative arrangements, but no discussions will be entered into until the “necessary” medical evidence is provided.
The Respondent contends that this instruction was lawful and reasonable. However, the Applicant contends that the direction was neither lawful nor reasonable.
What does appear unreasonable in the circumstances is that the Applicant was denied the opportunity to return to paid work despite the evidence from the hospital she was taken to by the Respondent against her will. Further, the Respondent insisted on medical evidence to satisfy itself of its alleged health and safety obligations that required the Applicant to attend to appointments with a medical practitioner and submit herself to numerous tests to rule out any identifiable risk to the Respondent’s satisfaction, as it not only relies on the incident of 9 April, but vaguely refers to “this current pattern of behaviour.”[10] This letter fails to clarify the concerns of the Respondent given that it already has medical evidence from the Applicant’s psychologist in relation to the private matter that occurred in January 2025 and the hospital report of 9 April 2025. The letter further does not clarify what is “necessary” for it to be satisfied to engage with the Applicant.
Ms Sutton submits that her treating medical practitioner was uncomfortable to provide the materials requested on the basis that their opinion was that the evidence being sought was unethical and potentially illegal. Despite these concerns Ms Sutton initially commenced the process of numerous medical assessments in compliance with the direction but then determined that regardless of what medical evidence was provided, she was concerned that the open-ended nature of the request left her uncertain whether she would be permitted to return to work.
After Ms Sutton’s leave entitlements were exhausted, she had no income but continued to incur medical costs. Faced with the uncertainty and lack of support, she emailed her employer her resignation.
Ms Sutton submits that her decision to resign was because her only choice was to provide “necessary” medical information[11] for which she would be expected to relinquish privacy and control (over medical information that her medical practitioner and herself feared was irrelevant and too open ended to meet any requirement for a return to work) and still be unclear if the Respondent would even be satisfied by the material to engage in a discussion for her return to work, all while she was stood down without pay.
The Respondent, however, submits that Ms Sutton resigned voluntarily because she had a job. It tendered into evidence a copy of her LinkedIn profile showing that she commenced employment in May 2025. This submission was disputed, and I am satisfied by the Applicant’s evidence that she had no job to go to but actively sought and obtained employment in late May 2025. The Respondent did not respond to Ms Sutton’s submissions querying whether the stand down was lawful, particularly given that employees stood down were not stood down without pay.
A preliminary assessment of the employer’s conduct is at least arguable that the directions were unreasonable and/or unfair and the lawfulness of the stand down questionable. But also, it is evident that the Applicant contends that the employer’s conduct was in breach of her general protections and she suffered adverse action which may be arguable. However, I do observe the Applicant does not seek a remedy in reference to the unfair dismissal provisions, rather more relevantly, the Applicant refers to her protections under equal opportunity law and the general protection provisions under Part 3-1 of the Act.
To further add complexity to the merits of the Applicant’s unfair dismissal application is the uncontested fact that she resigned, albeit she contends it was a forced resignation.
A forced resignation is not a simple and easy argument to mount. Whether Ms Sutton can prove that she resigned involuntarily will require evidence that it was the employer’s actions, namely the stand down and directions to produce “necessary” medical evidence was intended to bring the relationship to an end. Or at least she can distinguish the employer’s actions against her decision to resign to cross the line to meet the requirement of s.386(1)(b) of the Act. The line distinguishing the employer’s conduct that leaves the Applicant with no choice, from an employee’s decision to resign is a narrow one.[12]
Without substantially examining the merits, the preliminary assessment is that the Applicant may have an arguable case of unfairness, but not necessarily an unfair dismissal case. I cannot discern at this stage whether it is likely to be a strong case under s.394 of the Act. All the circumstances before me are relevant in an extension of time including the reasons for the application and the remedy sought through the internal grievance process. For those reasons merit carries some importance, but I cannot say it is a compelling or strong consideration in favour of an extension. I do consider some weight ought to be attributed to merit.
f) Fairness as between the Applicant and other persons in a similar position
As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. 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.
Neither party made submissions directly on this issue, nor did any party bring to my attention any relevant decision of the Commission which is in terms similar to the facts in this case or where the Commission granted an extension of time or found exceptional circumstances on facts that are similar to the facts before me. Consequently, that matter is a neutral consideration in the present circumstances.
Conclusion
Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly. Otherwise except in exceptional circumstances, the right to bring the action will be lost.
A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in s.394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.
As I have indicated, the reasons for the delay (which was a lengthy period of 59 days) weighs against an extension as does the consideration of awareness. Further, prejudice and fairness I do consider to be neutral factors. I do consider both the action taken by Ms Sutton to challenge her dismissal and merits weigh in favour, but I do not consider that these two considerations have equal weight or outweigh the reason for delay and awareness. The period of delay is significant against the 21-day statutory time limit and Parliament’s intention as to one’s exercise of unfair dismissal rights. This delay and the reasons must be balanced against the nature of the grievance raised and the remedy being sought by the action taken by Ms Sutton following her resignation against the unfairness and potential unreasonableness of the employer’s actions.
In those circumstances, as I have indicated, while there are some exceptional circumstances, namely what appears to have been questionable conduct of the Respondent following the medical episode of 9 April 2025, I am not satisfied that the bar has been met in terms of exceptional circumstances overall. While I empathise with Ms Sutton’s situation, there is on balance an insufficient basis to exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused, and the application for an unfair dismissal remedy made by the Applicant is dismissed.
COMMISSIONER
Appearances:
D Sutton, Applicant
T Watts with N Sim of Turks Legal for the Respondent
Hearing details:
2025.
Melbourne:
September 22.
[1] Fair Work Act 2009 s.394(3).
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] Gao v Department of Human Services[2011] FWAFB 5605 (Giudice J, Harrison SDP, Asbury C, 23 August 2011).
[6] On 15 July 2025 via email, exhibit R7.
[7] Oral evidence.
[8] The Respondent states the stand down was to last until it has the medical evidence to inform its discussions with the Applicant. But the Applicant contends this is unclear and may also mean until the Respondent is satisfied that there was no health and safety risk to the Applicant and others.
[9] Exhibit R8.
[10] Letter of 10 April 2025 to be provided to the medical practitioner with accompanying documents, Exhibit R8.
[11] But uncertain of the test for “necessary” medical information.
[12] Doumit v ABB Engineering Construction Pty Ltd, Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
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