Ivan Maurice Ambrus v Lite n Easy

[2025] FWC 1185

[2025] FWC 1185

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ivan Maurice Ambrus
v

Lite n Easy

(U2025/2353)

COMMISSIONER SIMPSON BRISBANE, 29 APRIL 2025

Application for an unfair dismissal remedy – application 28 days out of time – No exceptional circumstances – Application dismissed.

1. On 27 February 2025, Mr Ivan Maurice Ambrus (Mr Ambrus / the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with Lite n’ Easy (QLD) Pty Ltd (the Respondent). The Respondent objected to the application as it said the Applicant’s application was filed outside of the 21-day statutory timeframe. Directions were issued for the filing of submissions and parties filed further material.

1. On 8 April 2025, my Chambers wrote to the parties by email to indicate that based on the Applicant choosing not to file further material by the date in the directions, I proposed to determine the matter without the need for a hearing. The Respondent also requested that the matter be heard on the papers. A response from the Applicant was not received. On 9 April 2025, my Chambers notified the parties by email that, having regard to the Respondent’s request and noting that the Applicant had not objected, I would determine the extension of time issue based on the material filed by the parties.

1. On 15 April 2025, the Applicant submitted a letter which sought an extension of time and noted he was in the process of seeking legal advice through Legal Aid.

1. Mr Ambrus provided a witness statement dated 10 April 2025 for himself, and Ms Judy Schache, the Applicant’s housemate provided a witness statement dated 18 February 2025. The Respondent did not file a witness statement and chose to rely on the material provided with their Form F3 – Employer Response and on correspondence to my Chambers from Ms Alison Duncan, People and Culture Business Partner for the Respondent on 8 April 2025.

1. In the circumstances of the additional material filed, I determined it was appropriate to conduct a hearing rather than proceed with the initial decision to determine the matter on the papers. The matter was set down for a hearing on 24 April 2025. Mr Ambrus represented himself and Ms Duncan appeared for the Respondent. Both parties confirmed they had received the Digital Court Book with all material filed, and the additional material filed by Mr Ambrus on the day of the hearing. 

Background and Submissions

1. On 9 January 2025, the Respondent terminated the Applicant’s employment for abandonment of employment.

1. On 24 August 2023, the Applicant was issued a First and Final warning for not undertaking the inherent duties of his role, for spending excessive amounts of time outside his specified work location, for failing to follow processes relating to his duties, and for failing to follow absenteeism processes when he did not attend work.

1. On 19 August 2024, the Applicant was issued a Formal Written Warning for taking further unauthorised leave, specifically for three consecutive shifts and failing to follow the absenteeism process. The following month, the Applicant was issued a Final Formal Written Warning for repeatedly failing to complete/document sanitation checks, and failing to follow policy and procedure.

1. On 9 October 2024, the Applicant was issued with a notice to attend a formal meeting for operating a machine without the required PPE when he was not trained nor signed off to operate the machine. The Applicant attended the meeting the following day, however prior to an outcome being issued, the Applicant commenced a period of personal leave until 18 October 2024.

1. On 4 December 2024, following the Applicant failing to attend work for three shifts from 2-4 December 2024, and failing to adhere to the absenteeism process, the Respondent commenced the Abandonment of Employment process as outlined in clause 2.4.6 of the Mitchell’s Group Enterprise Agreement 2024 (the Agreement).

1. On 5 December 2024 at 10:24am, the Applicant sent an email to the Respondent informing that the first available appointment he could have with his GP was that day. The email also said that he would contact the Respondent regarding his return to work. The Respondent replied to the Applicant and said that he was required to phone the Respondent’s Injury Management Team, Direct Health Solutions (DHS) to advise of an absence.

1. On 26 December 2024, the Applicant did not attend the workplace and alleges that he had been told by a senior team leader not to attend that day.

1. On 31 December 2024, the Respondent sent a letter to the Applicant identifying that his failure to attend the workplace on 26 December 2024 and failure to inform of his absence required a response from him by no later than 5:00pm on 1 January 2025. The Letter stated:

“Re: Absence from Work

Dear Ivan

I write to you again in relation to your current absence from work as a process worker at Lite n’ Easy.

You failed to return to work on Thursday, 26 December 2024, after your recent period of sick leave, which as stated on your supplied medical certificate ended on Wednesday, 25 December 2024. You have not been in contact with DHS or us to advise us of your absence, nor have you advised of your anticipated return to work.

You are therefore again absent from work on unauthorised leave.

As we have not received any contact from you it has necessitated us to write to you.

As per clause 2.4.6 of the Mitchell’s Group Enterprise Agreement 2024, we are providing you with an opportunity to contact us by 5pm on Wednesday, 1 January 2025 in relation to your absence and to advise us of your intention to return to work.

Please contact me via email [EMAIL] or [EMAIL]. Should we not hear from you by this time, the company will make a decision with regards to your ongoing employment.”

1. The Applicant did not respond. On 2 January 2025, the Applicant was advised of his termination of employment in writing for Abandonment of Employment with an effective date of 9 January 2025. The Letter stated:

“Re: Abandonment of Employment

Dear Ivan,

I write to you in relation to your current absence from work as a process worker at Lite n' Easy. You failed to return to work on Thursday, 26 December 2024, after your recent period of sick leave, which as stated on your supplied medical certificate ended on Wednesday, 25 December 2024. You have not been in contact with DHS or us to advise us of your absence, nor have you advised of your anticipated return to work.

Tuesday, 31 December 2024, I wrote to you and requested that you contact us by 5pm on Wednesday, 1 January 2025 in relation to your ongoing employment.

We have not received any contact from you. As a result, we have determined that your actions warrant termination of your employment as per clause 2.4.6 of the Mitchell's Group Enterprise Agreement 2024.

This letter therefore serves to advise you that your employment with Lite n' Easy will be terminated due to abandonment of employment, effective Thursday, 9 January 2025, providing you with a 1 week notice period.”

1. On 6 January 2025, the Applicant phoned DHS to provide information about his upcoming medical appointments. Ms Duncan sent an email to the Applicant informing him that as his employment with them had been terminated the week prior, there was no requirement for him to contact DHS. The email stated:

“…
We have noticed that you have phoned DHS this morning and provided information to Kandida around your upcoming medical appointment.

Please note as per the attached letters and emails below that your employment with Lite n’ Easy was terminated last week for abandonment of employment. There is therefore no requirement for you to phone DHS.

I will forward hard copies of these letters via Australia Post to you for your records.
…”

1. On 7 January 2025, the Applicant contacted the Respondent by email informing he would prefer to attend to retrieve his belongings and return his ID and locker key at 11:00am.

1. On 9 January 2025, the Applicant returned his security card and locker key. Ms Duncan sent the Applicant an email confirming receipt of the property:

“…

Thank you for returning your locker key and security access card to me just now.

Confirming that I have returned your security card to IT, while you were present, and I will return your locker key to Colin today.

I have also emailed payroll and asked them to email you a Separation Certificate that you can take to Centrelink.

Confirming I have also issued you with a 4^th copy of your abandonment of employment letters after emailing them to you twice and sending a copy via Australia Post.”

1. The Applicant responded to Ms Duncan stating: “I have a different perspective of the event which occurred.”

1. On 14 January 2025, the Applicant contacted the Respondent by email and provided a summary of events from his perspective. 

1. On the same day, Ms Duncan responded noting she had instructed Payroll to issue him a Separation Certificate as per his request and confirmed that his final day of employment was 9 January 2025:

“…
As discussed with you last week when you were onsite, I asked Payroll to send you a separation certificate as per your request. I advised you at this time that given your final date of employment with Lite n’ Easy was last Thursday, 9 January 2025, payroll are unable to generate the separation certificate until tomorrow at the earliest after they run payroll for last week. This is inside the required timeframe.

There also appears to be some confusion regarding your end date. As communicated to you in writing, your last date of employment was Thursday, 9 January 2025.

Should you not have received the separation certificate by close of business this coming Thursday, please let me know and I will follow this up as a priority”

1. The Applicant responded later that afternoon stating “please do not contact me again. You cause me emotional distress. I am happy to communicate with anyone else except you.”

1. On 15 January 2025, the Applicant received a Separation Certificate from the Respondent.

1. On 19 February 2025, the Applicant submitted that he attempted to scan and send his application for unfair dismissal to the Commission and provided a receipt from Officeworks to support this. The Commission did not receive this email.

1. On 27 February 2025, the Applicant attended the Fair Work Commission in Brisbane and filed his Form F2 – Unfair Dismissal Application.

Consideration

1. In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under section 394(2) of the Act. This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.

Reason for the delay

1. In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[1] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

1. The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[2] 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 can be considered exceptional.[3]

1. In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:

“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”[4]

(original emphasis)

1. The Applicant submitted that the reason for the delay was that he was receiving ongoing ‘and future’ psychological support for his workplace injury and that he was waiting for legal advice. He submitted that he was not emotionally capable of coping with the process of filing an unfair dismissal application.

1. The Applicant provided a medical certificate indicating that he had a temporary diagnosis of anxiety/depression/PTSD and that he was unfit for work/study from 21 January 2025 to 28 February 2025, the latter being the day after he filed his application.

1. The Applicant submitted that the reason for his delay was due to him following medical advice that he should limit his engagement and response to the matter for only an hour per day to avoid panic attacks, anxiety, depression or blood pressure issues. He submitted the matter is overwhelming, he was suffering from mental distress, and the matter has caused him emotional distress. He said he is trying to navigate the process in such a way that he does not fall into depression. The Applicant said he was advised to take his time in responding, I assume by mental health practitioners and friends as he was unclear on this. He said this caused the delay as he just couldn’t file the application.

1. The Applicant further submitted that he was advised, he does not indicate by whom, on 17 February 2024, that he had 21 days from the date of termination to file his application. The Applicant relied upon Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group[5] whereby an extension to file an unfair dismissal application was granted on the basis that an Applicant had a medical certificate addressing the absenteeism that led to the termination of his employment.

1. At the hearing, the Applicant expressed that he was still confused with the termination date, submitting that on 6 January 2025 he was informed by Ms Duncan that his employment had been terminated 3 weeks prior. The Applicant was not able to point to the email which stated that. He was asked if any of the emails set out earlier in the decision were the email he referred to and he wasn’t sure.

1. The Applicant referred to confusion about his end date due partly to payslips. He submitted written communications with the Respondent, with the most relevant being for the period 6 January 2025 to 12 January 2025, where he pointed to the notation of 38 hours of unpaid unplanned leave for that period. He submitted that the payslips demonstrated that he was employed past the date he had been informed of.

1. The Applicant seems primarily aggrieved by his view that Ms Duncan did not accept a medical certificate and proceeded to dismiss him for abandonment of employment three weeks before his dismissal took effect according to the termination letter. The evidence does not support his view that he was told three weeks before 9 January 2025 that he was dismissed. The evidence is that he was sent a letter dated 2 January 2025 advising him that he was to be dismissed with one weeks’ notice. 

1. Ms Judy Schache provided some background as to what she had observed about the Applicant’s mental state generally, including in the period of December 2024. 

1. Ms Duncan said the Applicant had a long history of not following process or procedure and not responding to matters in a timely way. Ms Duncan said the Applicant was able to reach out to the Respondent on 6 January 2025 and provide information even though he said that he was unwell at that time, and was also able to visit the site at his choice on 9 January 2025 to hand in his security card. The Respondent submitted that it does not feel the Applicant’s health condition would have prevented him from filing an unfair dismissal application in the required time.

1. The contemporaneous documents support the conclusion that the Applicant was aware that his dismissal had effect from 9 January 2025. Whilst it appears the Applicant at one point appeared to believe he had been dismissed before that date; in any event this does not provide an explanation for delay after 9 January 2025. Even if the Applicant did initially believe he had been told he was dismissed well before 9 January 2025, there is little doubt he understood by 9 January 2025 he had been dismissed.

1. The Applicant engaged in several written communications with the Respondent on 14 January 2025, five days after his dismissal took effect. 

1. The Respondent submitted in short that no exceptional circumstances exist to support the granting of the extension of time to file the application.

1. The application was required to have been filed by 30 January 2025 to be within time, and was not filed until 27 February 2025, making it 28 days late. The Applicant said he was in such an emotional state that he was unable to file the application. He said he received support during this time and was told to take his time, and he became emotional discussing the matter. 

1. I accept that the Applicant was highly distressed by his dismissal. This is not uncommon. I also accept from medical certificates provided to the Commission that he was being treated for a mental health condition for a time before and after his dismissal. 

2. I am also satisfied he understood he was dismissed from 9 January 2025, and the material demonstrates he was capable of engaging in written communications with the Respondent in the period immediately before and after his dismissal, including on 14 January 2025, five days after his dismissal.

1. He has not called on any direct medical evidence to support his assertion that he was not capable of filing an unfair dismissal application in the 28-day period after the statutory timeframe, up until the application was filed on 27 February 2025. Whilst he has provided a medical certificate saying he was not fit for work that overlaps the period of the delay, the medical certificate is generic in nature. I am satisfied based on the other material before the Commission that he could have completed and filed an unfair dismissal application much earlier than 27 February 2025. Based on the material before the Commission, he has not provided a reasonable explanation that would justify a lengthy extension of 28 days. 

Delay in being made aware of the dismissal

1. The Applicant was issued a letter on 2 January 2025 notifying him of the ending of his employment on 9 January 2025. He returned the Respondent’s property on 9 January 2025.  He was also made aware in emails subsequent to the 2 January letter and before 9 January 2025 that he had been dismissed. As I have already concluded above, he was aware of the dismissal on and prior to the date it took effect. This factor is neutral.

Action taken to dispute the dismissal

1. The Applicant submitted that he had made attempts to submit his application at Officeworks, Legal Aid and the State Library but does not provide the dates of these attempts. He provided a receipt from Officeworks dated 19 February 2025 but does not provide any details regarding what the receipt was for. The material is unclear, however this may weigh to some extent in his favour.

Prejudice to the employer

1. Neither party made any substantial submissions on this point. I consider this a neutral factor.

Merits of the application

1. In Telstra-Network Technology Group v Kornicki,[6] the Full Bench of the Australian Industrial Relations Commission said, in respect to the merits of an application:

“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.”

1. Evidence on the merits is rarely called at an extension of time hearing and was not called in this case. The Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.’[7] The merits of the application more generally would need to be scrutinised and would include consideration of the circumstances of the dismissal, including the reason. If an extension of time were granted and the matter proceeded this would need to be examined.

1. I consider the merits to be a neutral factor.

Fairness between the person and other persons in a similar position

1. There was no evidence that there was another person in a similar position to that of the Applicant and this is a neutral matter.

Conclusion

1. I have weighed each of the matters I am required to take into account and have determined that there are not exceptional circumstances in this case justifying an extension of time of 28 days. On that basis the application is dismissed.

1. 
   An order dismissing the application will be issued separately and concurrently with this decision.

COMMISSIONER

Appearances:

I Ambrus, on his own behalf
A Duncan, of the Respondent

Hearing details:

24 April
By phone
2025.

[1] (2011) 203 IR 1, 6 [15].

[2] Ibid 5 [13].

[3] Ibid 5–6 [13].

[4] (2018) 273 IR 156, 165 [38].

[5] [2010] FWA 3863

[6] (1997) 140 IR 1.

[7] Kyvelos v Champion Socks Pty Ltd, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]–[38].

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