Deanne Margaret Harris v No. 1 Riverside Quay Proprietary Limited
[2025] FWC 690
•7 MARCH 2025
| [2025] FWC 690 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Deanne Margaret Harris
v
No. 1 Riverside Quay Proprietary Limited
(U2024/13798)
| COMMISSIONER HUNT | BRISBANE, 7 MARCH 2025 |
Application for an unfair dismissal remedy – Application made beyond 21-day time limit – Applicant under impression that representative would file application – Representative instructed Applicant to file application – No representative error – Death and funeral of Applicant’s friend – Reasons for delay not supportive of extension – No exceptional circumstances – Application dismissed
On 18 November 2024, Mrs Deanne Harris made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed from her employment with No. 1 Riverside Quay Proprietary Limited (the Respondent) and that her dismissal was harsh, unjust or unreasonable.
Mrs Harris was dismissed on 25 October 2024. To be within the 21-day time limit to bring an unfair dismissal application, the application needed to have been made by 15 November 2024. The application has therefore been made three days out of time. Mrs Harris seeks an extension of time within which to make her application.
Legislative requirements
Section 394 of the Act states:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Hearing
Directions were issued, providing the parties with an opportunity to file witness statements and submissions in relation to Mrs Harris’s application for an extension of time. A hearing was convened by video using Microsoft Teams on 19 February 2025. Mrs Harris was represented at the hearing by her friend, Ms Tammy Everett. The Respondent was represented by Ms Katie Salvatore, People Relations Partner and Ms Maia Luxford-Sullivan, Retail People and Culture Advisor.
The following people gave evidence at the hearing:
· Mrs Harris;
· Ms Everett; and
· Ms Salvatore
Other individuals completed statutory declarations or witness statements going to the merits of the application.
Background
Mrs Harris was employed as an Assistant Store Manager at the BP Mareeba service station. She commenced in May 2018.
On 2 October 2024, Mrs Harris was stood down by the Respondent pending an investigation into allegations that she had breached the Respondent’s Locked Door Policy by permitting employees she managed to allow members of the public into the store after 10:00pm. The Locked Door Policy is enforced from 10:00pm to 5:00am and provides restrictions on members of the public entering BP stores. The conditions on which members of the public may enter stores during the Locked Door Policy hours include entering to pay for fuel or goods, or where a person is in danger and needs to retreat.
It was alleged that on 1 October 2024, Mrs Harris said to a person she was interviewing for a role that “sometimes we let the indigenous community inside the store to sleep after hours”. This was said to have been overheard by an employee of the Respondent.
On 25 October 2024, Mrs Harris was dismissed by the Respondent. It was determined by the Respondent that the allegations against Mrs Harris had been substantiated, and that Mrs Harris had engaged in serious misconduct. Accordingly, following a meeting on 25 October 2024, Mrs Harris was summarily dismissed.
Mrs Harris contends that she did not engage in the misconduct alleged by the Respondent, and did not breach any of the Respondent’s policies, including the Locked Door Policy.
Evidence of Mrs Harris
Mrs Harris stated that the unexpected death of a close family friend and miscommunication with a lawyer from Working Women Queensland, a community legal centre, were both exceptional circumstances justifying an extension of time.
Shortly before her dismissal, Mrs Harris learned of the passing and subsequent funeral of a close family friend. His funeral notice states that he passed away in late October 2024. The funeral took place on 15 November 2024, the day on which the 21-day timeframe for the filing of Mrs Harris’s unfair dismissal application expired. Mrs Harris stated that she was affected during this time. In evidence given during the hearing, she said that in the week of the funeral she was visiting family, mostly in the afternoons.
In respect of the legal advice received during the 21-day period, Mrs Harris stated that her capacity to understand and retain information was affected by the death of her family friend.
Mrs Harris first telephoned Working Women Queensland on 28 October 2024. She spoke with Ms Samarah Kerr, Senior Solicitor and organised an appointment with Ms Kerr in person on 6 November 2024.
Mrs Harris has waived legal professional privilege in this matter.
Mrs Harris stated that she was aware of the 21-day timeframe in which to bring her application. She was under the impression, however, that Ms Kerr was going to make the application on her behalf.
The following emails were sent between Mrs Harris and Ms Kerr in November 2024:
(a) 6 November 2024 at 3:42pm:
“Good afternoon Deanne,
…
An unfair dismissal application must be made within 21 days of dismissal taking effect. As you were dismissed on 25 Oct 2024, your last day to lodge your application will be Friday 15 Nov 2024. It is best to get your application in before the due date to avoid any argument of your application being out of time.
Please find attached Form F2 – Unfair Dismissal Application for you to complete. This is the application that will be sent to the Commission to commence your claim. It is important to be concise and set out your legal position clearly. I have also attached the Unfair Dismissal Bench Book which is a useful resource to review before making an application.
If you are able to provide a copy of your application by Tuesday next week, I will be able to review your application and provide feedback to strengthen your legal position.
…
Samarah”
(b) 8 November 2024 at 3:14pm:
“Hi Samarah,
Am I able to do Stuart for Bullying or is it I can only do 1 case.
Do you need all the letter from ex employees that support my case or is it just for the meeting.
I have attached a photo of a young indigenous boy which is explained in my letter that is to come as I want to get this application in now, should have been sooner but I have had heaps of interruptions day and accidently deleted my first copy of this letter so I'll sent this part off now and you can ask me for info if you need while I do a letter up and watch a fairwork video I found last night to prepare myself.”
(c) 11 November 2024 at 9:21am:
“Good morning Deanne,
Thank you for providing the information and your Form F2 for my review. I noticed that your Form F2 refers to a Word document outlining why the dismissal was unfair, but I haven’t received this document yet. Could you please send a copy at your earliest convenience?
I understand that you experienced bullying behaviours, and I acknowledge the impact this has had on you. Unfortunately, an application for a bullying order cannot be made once you are no longer employed, as the purpose of such an application is to request orders for a safe workplace. Since you no longer work there, the Commission considers there to be no ongoing risk to your health and safety.
Look forward to hearing from your shortly”
(d) 11 November 2024 at 10:27am:
“Sorry Samarah,
I have just clicked to what I have done. Sorry I’m really sick at moment yes I am getting that word doc together, I thought I’d better get that application form in asap. I’ll get that together as soon as I can.
Dee”
(e) 11 November 2024 at 12:01pm:
“Hi Samarah,
I have attached some pointers in F2 in regards to my application I’m hoping this will be adequate to file application. I am still going to write up all my story to a word document for you to read what I have put together for this meeting. I know the part about Stuart getting fired and that I know that wont happen, that’s fine I’m going to make sure this seniors hear about this thou. I put my heart and sole in that place.
Dee Harris
Let me know if this is all you need for the submission of the application.
Thamk you”
(f) 12 November 2024 at 10:52am:
“Hi Deanne,
Thank you for providing this additional information. I am sorry to hear you are not feeling well and hope you have been able to find some rest.
Please find attached F2 with my changes.
A few things to note:
1. bp appears to be a multinational company and therefore their employees will be greater than what existed in store. I have changed 1.3 to reflect this.
2. I recommend that you remove your request for Stuart to be fired as a outcome. I appreciate why this would be included however you risk your ex-employer thinking you are being vexatious and therefore not taking your application seriously. I have highlighted this in yellow for your consideration of removing.
3. With your reasons, I have re-framed them for you in line with the legislation and expanded based on our previous discussion. I have highlighted your response in yellow to remove and ask that you expand on the added framework. Ill also note that why your point 1 may be true, I would recommend that you avoid any obscene language in the application.
It is always best to provide as much relevant information as possible in your starting application. However, the Commission does have discretion to permit additional information to be provided at a later date.
I am happy to review your final application again tomorrow or Thursday. I unfortunately will only have a small amount of time but can confirm if there any significant risks with your changes.
After that you can submit the application before the 21 days period ends [emphasis added].
Kind regards”
(g) 12 November 2024 at 11:51pm:
“Completed F2 document as attached let me know what you think and as soon as possible I shall have the other documents as discussed sent to you to review.
Dee Harris”
(h) 13 November 2024 at 8:50am:
“Hi Deanne,
I hope you are feeling better today.
Great job on your application! I have no further changes to suggest.
Your application is in a good position to be submitted to the Fair Work Commission along with your fee waiver request. The Commission will provide a copy of your application to bp to respond and you will receive a copy of the respondent’s response to review. The Commission will then schedule a conciliation conference between you and bp, facilitated by an independent conciliator to attempt resolution. As a reminder, no evidence is being considered, no witnesses are called, no decision or orders are being made at conciliation.
Conciliation typically goes for 90 minutes and moves quickly. The process beings with a joint session where you will give a brief opening statement, then bp will give a response, and then the parties will break into private sessions to negotiate a resolution.
The information you are preparing may be best suited in the form of an opening statement. This statement should be no more than a page long, outlining what happened and why you believe the dismissal is unfair.
I will not have capacity to review any further documents before you need to submit your application [emphasis added]. However, I may have capacity to review an opening statement before your conciliation.
I hope this information assists you to prepare for the next step in the process.
Kind regards”
(i) 13 November 2024 at 10:11am:
“Hi Samarah,
Ok! So, you’re saying I don’t need to write up a letter of events or produce evident documents till the day of the meeting. All will be submitted and reviewed at meeting.
Dee Harris
Thank you do much for your guidance”
(j) 13 November 2024 at 7:29pm:
“Hi Samarah
Disregard last email I have a friend who helped me with that application thank goodness and she understands it and has volunteered to do me summary letter which I'll send to you with your input. She'll be able to produce something that you won't have to spend much time on. Is she allowed to be my support like a solicitor at this meeting. She's good with this stuff, she also was my boss SM, so she knows the company drill.
Thanks
Dee Harris”
(k) 18 November 2024 at 11:05am:
“Good morning Deanne,
Thank you for your patience, I am glad to hear you found additional support.
Yes, you can have your friend represent you at the conciliation conference. You should review the Fair Work Commission website on representatives here.
I hope you are able to have your voice heard and work towards resolving your concerns at the conciliation conference.
Kind regards”
(l) 18 November 2024 at 12:15pm:
“Thank you so much for your support you have been a great help. Just to conform that you submitted the F2 & F80 applications or do I need to. If I need to can you let me know who and where too.
Thanks
Deanne Harris”
(m) 18 November 2024 at 12:44pm:
“I have submitted my F2 and F80 application through to the email address [email protected] I am hoping that this is the correct portal to submit the documents?
I am so sorry I was under the impression that you may have submitted the application for me, my mistake in misunderstanding I have just realised in going over our email correspondence that you never actually advised me that you were going to submit I have just misunderstood.
I am concerned now that I have missed the 21 day cut off being today is Monday.
Do you think that this will be an issue for me considering that I have only realised and submitted my application today?”
(n) 20 November 2024 at 4:12pm:
“Hi Deanne,
Thank you for your email. I understand your concerns and appreciate you seeking clarification.
As discussed, we did not submit the application on your behalf, and I understand how the misunderstanding may have occurred. I’m pleased to see that you have now submitted the documents directly to the correct email address.
Your application appears to be a few days outside the 21-day timeframe. This means your previous employer may raise a jurisdictional objection, arguing that the application cannot proceed due to being out of time. If this happens, you will have the opportunity to explain the delay to the Commission. If your employer does not raise an objection, your application should proceed to a conciliation conference.
The Fair Work Commission has discretion in handling jurisdictional objections, which may be addressed either before or after the conciliation conference. The Commission will inform you of the next steps after receiving your employer’s response.
Your previous employer is required to respond within approximately seven days of receiving your application from the Commission.
If you need further advice on the process or the next stages of your application, please don’t hesitate to contact our service.
Kind regards”.
[errors in originals]
Mrs Harris stated that it was when she sent the email at 12:44pm on 18 November 2024 that she became aware of the possibility that the application had not been submitted by 15 November 2024, that her lawyer would not be submitting the application, and that she would be required to submit it herself. Upon reviewing the email communication with her lawyer, Mrs Harris stated she realised that she “may have misunderstood the advice and information [she] received” about the filing of her application.
In evidence given during the hearing, Mrs Harris stated that while she is not illiterate, she is “terrible at reading” and did not absorb all the information provided in the email correspondence from her lawyer. She stated this was the reason why she did not understand that she was required to submit her own application, despite the emails from her lawyer. However, Mrs Harris also stated that she understood “at the beginning” that she would be required to submit her own application, but she later forgot.
Mrs Harris stated that throughout the 21-day period, she was receiving assistance from Ms Everett. Ms Everett assisted with the wording of certain parts of her application.
Referring to her lawyer’s email of 20 November 2024, Mrs Harris noted that her lawyer understood her concerns, appreciated her seeking clarification, and understood how the misunderstanding may have occurred.
Mrs Harris stated that she understands that ignorance of the timeframe for lodgement is not an exceptional circumstance, but stated that, if not for the stress and inattention arising from the death of her friend and subsequent funeral, she would have had the capacity to explicitly ask her lawyer about the process involved in filing her unfair dismissal application and would have understood that she needed to file the application herself.
In response to questions from me during the hearing, Mrs Harris rejected Ms Salvatore’s evidence that during the disciplinary meeting on 25 October 2024 she admitted to condoning customers sleeping in the store during locked hours. She instead stated that she merely admitted to allowing customers into the store.
During the hearing, Mrs Harris stated that in the week leading up to her friend’s funeral, she was spending time with other attendees in the afternoons. I noted that at least on the mornings of 11 and 12 November 2024, she was at her computer sending emails about her application. It is evident from her email of 13 November 2024 that this email was sent from her phone.
Evidence of Ms Everett
While Ms Everett did not provide a witness statement in advance of the hearing, it became clear during the hearing that she had relevant evidence to give in relation to her interactions with Mrs Harris in the week leading up to the filing of Mrs Harris’s unfair dismissal application. Accordingly, I considered it appropriate for Ms Everett to give evidence at the hearing, to which she agreed.
Ms Everett gave evidence that while her communication with Mrs Harris was limited, she did speak with Mrs Harris over the phone in the week prior to 15 November 2024 and helped her complete the Form F2 application. Ms Everett confirmed that Mrs Harris did not forward her any email correspondence from her lawyer.
Ms Everett assumed that Mrs Harris would have known she needed to file her own application. Ms Everett considered that if it had been discussed, Mrs Harris would have picked up on that.
On 18 November 2025, Ms Everett visited Mrs Harris at her home and asked her if she had submitted her application. Mrs Harris stated that she had not, and Ms Everett then told Mrs Harris that she would be required to submit the application herself.
Submissions of Mrs Harris
Mrs Harris submitted that the impact, stress and grief associated with the passing of her friend of 35 years was the same as it would have been for the death of a family member. Mrs Harris noted that despite the stress she was under and her limited capacity, she had provided her completed application to her lawyer two days prior the expiry of the 21-day timeframe in the mistaken belief that it would be filed on her behalf.
Mrs Harris submitted that because of the Respondent’s allegations leading to her dismissal, she was diagnosed with depression and was prescribed medication. Mrs Harris did not attend upon a medical practitioner until 4 December 2024 and 23 January 2025, periods that are outside the relevant period in the Commission’s consideration of the matter before it.
Evidence of Ms Salvatore
Ms Salvatore provided a document expressed to be a witness statement, however this statement consisted almost entirely of hearsay. While I have decided to admit the statement into evidence, I will afford it due weight taking into account its probative value.
Ms Salvatore’s statement noted that on 1 October 2024, Mrs Harris interviewed a candidate. Another attendee at the interview purportedly heard Mrs Harris tell the candidate that she has allowed people to come into the store after hours to sleep on the bench because they have nowhere else to go. Ms Salvatore’s statement also said that another witness heard Mrs Harris state that “they would often let young indigenous kids stay in the shop because they had trouble at home”, and “just the other night we let a young boy sleep on the bench”.
Submissions of the Respondent
The Respondent submitted that that ignorance of the timeframe for lodgement is not an exceptional circumstance. It noted that Mrs Harris has confirmed that she was in contact with a lawyer for the majority of the 21-day period post-termination, and that she had been informed that she would be required to submit her unfair dismissal application herself.
The Respondent acknowledged that late lodgement of an application due to representative error may be grounds for an extension but submitted that in this instance there was no communication breakdown with Mrs Harris and her lawyer.
The Respondent submitted that it would be prejudiced by an extension of time being granted as the application is without merit. The Respondent argued that Mrs Harris was afforded procedural fairness, was offered an opportunity to respond to the allegations made against her and admitted to the allegations. The Respondent also noted that following the termination, it had discovered stock count variances attributable to Mrs Harris. In any event, the Respondent submitted that even if there was no prejudice to the Respondent, a mere absence of prejudice does not itself justify a finding of exceptional circumstances.
Recording of disciplinary meeting
On 7 February 2025, Mrs Harris alerted the Commission to the fact that she had covertly recorded her disciplinary meeting on 25 October 2025, despite a direction from the Respondent not to make any recordings of the meeting. She sought permission to admit into evidence a copy of the recording and a transcript, as she considered the recording relevant to her extension of time application. Mrs Harris indicated that she did not trust Mr Stuart Cassidy, Business Manager, who conducted the meeting, and this is why she considered it necessary to make the recording.
I sought the views of the Respondent as to whether the recording should be admitted into evidence for these proceedings. On 12 February 2025, the Respondent submitted that the recording should not be admitted into evidence.
I have not listened to the recording nor read the purported transcript of the recording. I informed the parties that the recording and transcript will not be admitted into evidence in this jurisdictional decision as the recording was made in direct contravention of a direction by the Respondent to Mrs Harris not to record the meeting.
Applicable case law
The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd,[1] where the Full Bench said:
“[10] It is convenient to deal first with the meaning of the expression ‘exceptional circumstances’ in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression ‘exceptional circumstances’ in s.394(3) and held:
‘[5] The word ‘exceptional’ is relevantly defined in The Macquarie Dictionary as “formatting an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.’
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression ‘exceptional circumstances’ was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
‘23. I am of opinion that the expression “exceptional circumstances” requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
“Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.”
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CL at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25 And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
“We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
26. Exceptional circumstances within the meaning of s 106KA(2) can 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 are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.’
[13] In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” [footnotes omitted].
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmon Oysters,[2]
a Full Bench of the Commission rejected the finding at first instance that that the decision in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers[3] stood for a decision rule that, absent a credible explanation for the entirety of the delay, there could be no finding of exceptional circumstances. The Full Bench reaffirmed the test for exceptional circumstances as follows:[4]
“As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.” [emphasis in original]
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[5]
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an application seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[6]
Consideration
The reason for delay – s.394(3)(a)
The reason for the delay in lodging an application is a factor that must be considered. The Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[7] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[8]
A reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[9] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[10]
Mrs Harris was affected by her close friend’s passing just prior to the dismissal and throughout the 21-day period. She was also confused with understanding, towards the end of the 21-day period, that she was responsible for filing the application, not the community legal centre lawyer who had been kindly reviewing and improving her application.
Mrs Harris had been informed in writing that it was she who needed to make the application. The following is evidenced by the communication between Mrs Harris and Ms Kerr:
(a) 11 November 2024, Mrs Harris wrote, “…I thought I’d better get that application form in asap.”
(b) 12 November 2024, Ms Kerr wrote, “After that you can submit the application before the 21 days period ends.”
(c) 12 November 2024, Mrs Harris wrote, “…discussed sent to you to review.”
(d) 13 November 2024, Ms Kerr wrote, “I will not have capacity to review any further documents before you need to submit your application.”
Mrs Harris confirmed at the hearing that she knew at the very beginning of the 21-day time period that it was she who needed to file the application. She stated that she read it, but then later became confused.
Ms Kerr’s email to Mrs Harris on 13 November 2024, informing her that her application was great, and she had no further changes to suggest, and for Mrs Harris to submit her application, was instructive. It was clear that Ms Kerr considered Mrs Harris’s application ‘ready’, and it was up to Mrs Harris to file her application. Mrs Harris confirmed in the hearing that she probably did not read all of the email to her, or if she did, she was confused.
Ms Kerr met her obligations to Mrs Harris; there was no representative error. Mrs Harris simply was not paying attention at the time, yet had understood a few weeks earlier it was her responsibility to file the application.
Mrs Harris visited upon a medical practitioner in December 2024 and January 2025. There is no evidence that during October and November 2024, she was unwell, or unwell enough such as to affect her ability to bring the application within time. I do not consider the effect of the loss of her friend to be so devastating that she could not bring her application to the Commission within time, noting that Mrs Harris spent a considerable amount of time on the application and forwarded many documents to Ms Kerr within the time limit.
The reasons for the delay provided are, in my view, not reasons that are supportive of an extension of time being granted.
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
Mrs Harris became aware of the dismissal on the day it took effect. I consider this to be a neutral factor in the determination of whether there are exceptional circumstances.
Any action taken by the person to dispute the dismissal – s.394(3)(c)
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[11]
Mrs Harris sent emails to the Respondent’s HR team on the afternoon of her dismissal. She indicated she would be discussing her dismissal with a solicitor, was extremely distressed and signed off with “Fuck BP”. The HR officer responded, concerned with the information within the email and requested Mrs Harris respond that afternoon otherwise a welfare check would be sought. Mrs Harris responded to the email that afternoon.
There was further communication between Mrs Harris and the Respondent on 29 October 2024, advising that she wished to contest the dismissal.
Mrs Harris’s notifications to the Respondent that she intended on disputing the dismissal are supportive of an extension of time being granted.
Prejudice to the employer (including prejudice caused by the delay) – s.394(3)(d)
The Respondent’s relevant personnel are still employed by the Respondent. I do not consider that there would be any prejudice to the Respondent caused by the delay in bringing the application. I consider this to be a neutral factor in the determination of whether there are exceptional circumstances.
The merits of the application – s.394(3)(e)
In the matter of Kornicki v Telstra-Network Technology Group,[12] the Commission considered the principles applicable to the exercise the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996. In that case the Commission said:
“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.”
In respect of the reason for the dismissal, that being the Respondent’s satisfaction that Mrs Harris permitted her staff members to allow people to sleep overnight in the store, my preliminary view is that I consider the Respondent’s case is relatively weak, based on the hearsay evidence the Respondent presented to the Commission. Despite my advice to the Respondent that it should put at least a modicum of evidence before the Commission in respect of the merit issue, it failed to do so, other than for Ms Salvatore to recite what others had said. It was entirely unsatisfactory.
Mrs Harris is adamant that she did not make any concessions in the meeting when the allegations were put to her, and she was ultimately dismissed. That would need to be tested in a substantive hearing.
I am, however, very troubled by Mrs Harris’s actions in deliberately disobeying a direction to record the conversation where she was dismissed. She was expressly informed that the meeting was not to be recorded, but Mrs Harris chose to do so in defiance of the direction given to her. Mrs Harris’s direct breach of a reasonable direction made to her is a very serious matter.
In submissions to the Commission as to why the Commission should admit the recording and transcript into evidence, on 14 February 2025, Mrs Harris submitted that she made the recording in defiance of the direction not to because she felt the employer/employee relationship ‘line of trust and confidence’ had been destroyed because an earlier complaint made by her had not been treated seriously.
I consider that Mrs Harris’s act of recording the conversation in defiance of a direction not to is a significant breach of trust and confidence and if the application for an extension of time were to be granted, and a substantive hearing held, this issue would have a very significant bearing on determining if Mrs Harris had been unfairly dismissed. My preliminary view is that I would find that she had not been unfairly dismissed with the information now known to the Respondent and to the Commission.
Whilst the reason provided by the Respondent to dismiss Mrs Harris is, in my preliminary view, a weak case based on hearsay evidence, having regard to Mrs Harris’s conduct in deliberately defying a direction not to record the meeting, I do not consider the merits support an extension of time being granted.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
The criterion of “fairness as between the person and other persons in a similar position” was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm,[13] where it was said:
“...cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”
I am not satisfied that the criterion of fairness between Mrs Harris and other persons in a similar position weigh strongly in favour of either party. As such, I consider it a neutral consideration.
Conclusion
Taking into consideration the matters I am required to take into account under s.394(2) of the Act, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Whilst noting that Mrs Harris was dealing with the loss of a close family friend and then suffered confusion as to how to bring her claim to the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
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(2).
Accordingly, the application must be dismissed. An order [PR785072] will be issued with this decision.
COMMISSIONER
Appearances:
T Everett and D Harris for the Applicant.
K Salvatore and M Luxford-Sullivan for the Respondent.
Hearing details:
2025.
Video using Microsoft Teams.
19 February.
[1] [2011] FWAFB 975.
[2] [2018] FWCFB 975.
[3] (2010) 197 IR 403 at [16]–[18].
[4] [2018] FWCFB 901 at [38].
[5] Smith v Canning Division of General Practice [2009] AIRC 959.
[6] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[7] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36].
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 at [35]-[45].
[9] Ibid; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288.
[10] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]-[33]; and Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.
[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[12] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[13] [2015] FWC 8885 at [29].
Printed by authority of the Commonwealth Government Printer
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