Lucia Rizza v Coynes Freight Management Group Pty Ltd - [2025] FWC 2458

[2025] FWC 2458

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lucia Rizza
v

Coynes Freight Management Group Pty Ltd

(U2025/12123)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 20 AUGUST 2025

Application for an unfair dismissal remedy – whether to extend time – application dismissed.

This decision concerns an application by Lucia Rizza for an extension of time pursuant to s 394(3) of the Fair Work Act 2009 (Act).

Ms Rizza made an application for an unfair dismissal remedy under s 394 of the Act on 23 July 2025. Section 394(2) of the Act requires 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 under s 394(3). It is not in dispute that Ms Rizza’s application was filed outside the 21-day timeframe for lodgement of the application.[1] Ms Rizza seeks that the Commission allow a further period of time for the application to be made. The respondent, Coynes Freight Management Group Pty Ltd, opposes the grant of an extension of time.

For the reasons that follow, I am not satisfied that there are exceptional circumstances. Accordingly, the discretion to extend the time in which the application may be made is not enlivened.

The dismissal

Ms Rizza commenced employment with the respondent on 1 March 2016.[2] It is not in dispute that Ms Rizza’s employment was terminated with effect on 24 June 2025.[3] The respondent’s position is that Ms Rizza’s employment ended by reason of her role of Payroll Clerk being made redundant. A termination letter dated 24 June 2025 relevantly explained the reason for termination as follows:[4]

“…As a result of the acquisition and subsequent integration of Coynes Freight Management Group into the Butler Freight Services business the position of Payroll Clerk is no longer required.

Regrettably this means that your employment will terminate.

This decision is not a reflection of your performance.
We have reviewed our business to find you an alternative position within the enterprise however we do not have any suitable vacancies currently.
Your employment will end today, and you will not be required to work out your notice period.
Notice
Based on your length of service (9 years) and in accordance with the National Employment Standards you will be paid five (5) weeks’ pay in lieu of notice.
Redundancy Pay
Since your employment is ending due to the role being redundant and in accordance with the National Employment Standards you are entitled to sixteen (16) weeks redundancy pay…”

The 21-day statutory timeframe for filing Ms Rizza’s application for an unfair dismissal remedy expired at midnight on 15 July 2025. Ms Rizza’s application for an unfair dismissal remedy was filed with the Commission on 23 July 2025. The application was therefore lodged 8 days outside of the statutory timeframe.

Extension of time

The Commission has the power pursuant to s 394(3) of the Act to extend the time within which an application for unfair dismissal can be made if…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 2458
Decision Date: 20 AUGUST 2025

CaseChat Overview and Summary

Lucia Rizza applied to the Fair Work Commission for an extension of time to lodge an unfair dismissal application against Coynes Freight Management Group Pty Ltd. Ms Rizza's employment as a Payroll Clerk was terminated on 24 June 2025 due to the redundancy of her role. The statutory 21-day period for lodging the unfair dismissal application ended on 15 July 2025, but Ms Rizza lodged her application on 23 July 2025. The respondent opposed the extension of time. The Deputy President considered various factors to determine if there were exceptional circumstances justifying the extension under s 394(3) of the Fair Work Act 2009. These factors included the reason for the delay, whether Ms Rizza became aware of the dismissal after it took effect, any action taken to dispute the dismissal, any prejudice to the employer, the merits of the application, and fairness between Ms Rizza and others in a similar position. The Deputy President found that Ms Rizza did not provide an acceptable or reasonable explanation for the delay, did not take any steps to contest the dismissal before the statutory period lapsed, and that the absence of prejudice to the employer was a neutral factor. Additionally, the merits of the unfair dismissal application were considered neutral as they involved contested factual disputes. The Deputy President concluded that there were no exceptional circumstances to warrant an extension of time, and dismissed the application for an extension. Consequently, Ms Rizza's unfair dismissal application was dismissed.

Orders