Miss Jennifer Pham v Flemington Child Care Co-Operative Limited
[2025] FWC 1918
•7 JULY 2025
| [2025] FWC 1918 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Miss Jennifer Pham
v
Flemington Child Care Co-Operative Limited
(U2025/9070)
| COMMISSIONER ALLISON | MELBOURNE, 7 JULY 2025 |
Application for an unfair dismissal remedy –application made out of time – whether exceptional circumstances exist warranting an extension of time – extension of time refused
This decision relates to an application by Ms Jennifer Pham for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act). Ms Pham alleges she has been unfairly dismissed from her employment with Flemington Child Care Co-Operative Ltd (FCCC).
Both Ms Pham’s application form and FCCC’s response form identify that Ms Pham’s application has not been lodged within the 21-day timeframe required under the Act. An application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect.”[1] If an application is not made in this timeframe, it is out of time and will generally be dismissed. The only exception to this is when the Commission is satisfied that exceptional circumstances exist,[2] and the Commission chooses to exercise its discretion under s.394(3) of the Act to extend the period for the application.
This decision considers whether Ms Pham’s application was made within time, and if not, whether exceptional circumstances exist that warrant the Commission exercising its discretion under s.394(3) to extend the period for Ms Pham’s unfair dismissal application.
Background
Ms Pham was employed by FCCC as Centre Director from July 2023. Ms Pham was clearly passionate about her role with FCCC and received positive performance reviews.[3]
From around December 2024, Ms Pham started to experience difficult interactions with a particular parent. She sought support from the parent committee governing the FCCC. In particular, from February 2025 Ms Pham raised her concerns regarding her interactions with the parent with the then Chairperson. Ms Pham believed the Chairperson’s response was unsupportive and unhelpful. Ms Pham escalated her concerns to the rest of the committee, ultimately making informal and formal complaints about the Chairperson, and raising concerns that she felt unsupported and that this was having an impact on her mental health.
On 7 April 2025, the then Chairperson resigned from the role, and was replaced by Mr Simon Peterson.
On 14 April 2025, Mr Peterson met with Ms Pham and informed her that allegations of serious misconduct had been made against her and that she would be suspended on pay while the matters were investigated. Ms Pham was provided with a letter which relevantly stated that:
-FCCC has received allegations that she had engaged in serious misconduct;
-Ms Pham would be suspended on full pay;
-FCCC had engaged lawyers to carry out an independent investigation into the allegations; and
-Ms Pham would have an opportunity to consider and respond to the allegations.[4]
There is contested evidence regarding whether Ms Pham was provided with the details of the alleged serious misconduct in the meeting on 14 April 2025. Ms Pham claims that details of the serious allegations were not provided to her at that meeting. Mr Peterson’s evidence is that he read off a pre-prepared script provided by his lawyers providing broad details of the allegations to Ms Pham.
Ms Pham was then escorted off the worksite.
Later that day Ms Pham sent a text message to Mr Peterson (the resignation text) which stated:
“Please take this as my formal resignation from my role at the Flemington Childcare … cooperative.
I appreciate your support during this process.”[5]
Mr Peterson later responded with a text that stated:
“thank you for your message and whilst we were committed to carrying out the investigation process, we formally accept your resignation. In order to provide you with additional time to find new employment, your last day of employment with Flemington Childcare Co-Op will be today (14 April 2025) and we will pay out all of your entitlements (including accrued annual leave, payment in lieu of notice etc.) ….”[6]
Ms Pham sent a number of other text messages to Mr Peterson around the time of the resignation text, notifying him that she was struggling with her mental health.[7]
On 15 April 2025, Ms Pham sent text messages to Mr Peterson asking “if there’s any possibility for me to return.” Mr Peterson responded stating that “the Resignation stills (sic) stands.”
On 16 April 2025, Ms Pham sent a text message asking "if there’s any possibility for me to return to the Co-op in any capacity. I’m truly willing to do whatever it takes for this opportunity.” And in another text “Could you please consider for me to come back and work as a teacher? Or in a six month contract so I can support the new director with the transitioning while looking for my new job?”
On 17 April 2025, Ms Pham sent an email to parents of children attending FCCC apologising for “a terrible mistake – one that I deeply regret…” and stating that “There are no excuses for what I did. I take full and complete responsibility. I am not writing to justify my actions—only to express the depth of my sorrow and to plead with you, from the very bottom of my heart, for a chance to make things right.”[8]
Later that day, FCCC lawyers sent Ms Pham a “Cease and Desist” letter which demanded that the Applicant cease contacting parents connected to FCCC and stated Ms Pham’s last day of employment was 14 April 2025.[9]
On 18 April 2025, Ms Pham texted Mr Peterson asking when she could “collect the rest of my personal belongings and when can I expect final payment”. Mr Peterson responded that the request had been sent to FCCC lawyers. In response to Ms Pham’s queries about outstanding payments, Mr Peterson indicated Ms Pham should now communicate with FCCC lawyers.[10]
On 18 April 2025, Ms Pham sent an email to FCCC’s lawyer seeking clarity regarding her final payment. The email states:
“My understanding is that I would be paid out for the following items.
Could you please confirm these for me so I can do the necessary calculations:-Annual leave
-Annual leave loading
-RDO hours
- Occupancy rating bonus…
-Termination of contract/resignation notice period
-Grocery shopping refund …”[11]
Ms Pham sent a further email to Mr Peterson on 22 April 2025 seeking a response, as her correspondence to FCCC’s lawyer had not yet been replied to.[12]
On 28 April 2025, FCCC made a payment to Ms Pham. This did not include her outstanding annual leave entitlements. Ms Pham disputed that she had been correctly paid her outstanding entitlements.[13]
Ms Pham continued to send messages and emails to Mr Peterson, FCCC lawyers and other board members regarding her outstanding entitlements. On 8 May 2025, Ms Pham sent an email to FCCC lawyers including the following:
“1. Annual Hourly Rate Increase
As per the award I was employed under, my hourly rate should have increased each year in June. This increase does not appear to have been applied in the final payout.2. Time in Lieu (TIL) Hours
All of my TIL hours ware tracked using the centre's official template and signed off by… our Finance Officer and 2IC, [who] consistently reminded me to record these hours and ensured they were acknowledged, knowing how much overtime I worked. Please confirm with [the Finance Officer] directly my TIL hours record….3. Overtime Hours
As with TIL, the same applies to my overtime hours which were required to meet the needs of the centre during critical times. These were known and observed by the team and management.4. Annual Leave Cash-Out
I lawfully cashed out 80 hours of annual leave, in line with legal entitlements, as I had sufficient leave accrued. If the centre now rejects this cash-out, then my final leave and leave loading should be adjusted to reflect an additional 80 hours, which currently has not been done.5. Payments During My Tenure
All payments made during my time were within the centre's financial delegations and the rules that were approved by the Board. I can provide documentation to support that every payment was made appropriately, provided I receive a clear breakdown of the $34,693.18 so I can respond to each items specifically.6. Shared Financial Management
The centre’s financial management has always been a shared responsibility. Our chairpersons, treasurers, 2IC, and bookkeepers all had access to the accounts. Treasurers provided monthly financial reports to the Board, and no issues were raised. Our 21C, who had daily access to the accounts and processed payments, also never raised concerns. My performance reviews by the Chair and Treasurer consistently rated me as exceeding expectations across all areas. To now claim $34,693.18 in unapproved payments after my resignation, without prior discussion or chance for response, is not fair.7. Recognition of Contributions
I understand that my departure coincides with a time when the centre is in a strong financial and operational position. I'm proud of what I have achieved for the centre from financial stability to full enrolments and a respected educational program. The Board, parents and staff all know and witnessed how much I put in and how hard I worked to transform the centre and tum it around from a projection of close to closing and where it is now. I simply ask that the centre fairly consider the full scope of my contributions over the past two years, and ensure the final payout reflects the many additional hours I invested.”[14]
On 16 May 2025, Ms Pham contacted the Fair Work Ombudsman regarding her situation. Ms Pham gave evidence that the Fair Work Ombudsman informed her that she could make an unfair dismissal application.
On or around 20 May 2025, Ms Pham sent an email to the FCCC committee seeking outstanding entitlements. The email included the following:
“I am writing to you once again – after six weeks, nearly 50 emails, numerous phone calls and messages – to formally request payment of my outstanding entitlements. To date, I have received no genuine response or action from the centre….
If I do not receive full payment or a formal, written response by the end of this week, I will take the following actions:1.Contact all families within the co-operative to inform them of the situation….
2.Initiate legal proceedings, including a formal complaint to the Fair Work Ombudsman, ACNC, the Department, Human Rights, and pursuing the matter in court if necessary.”[15]
On 26 May 2025, Ms Pham lodged a WorkCover application relating to her employment with FCCC.
On 27 May 2025, Ms Pham filed the current application for an unfair dismissal remedy.
When did the “dismissal” occur?
In Ms Pham’s application she states that she does not know the exact date her dismissal took effect.[16] In her witness statement and oral evidence, Ms Pham stated that even after 14 April 2025, she believed she was still employed and was confused when her employment ended.[17]
On the evidence before me I find that Ms Pham’s employment with FCCC ended on 14 April, following Ms Pham sending a text to Mr Peterson resigning. The end of her employment was confirmed in Mr Peterson’s text message in reply, accepting the resignation and stating, “your last day of employment with Flemington Childcare Co-Op will be today (14 April 2025).”
While I note that there is an argument between the parties regarding whether Ms Pham resigned or was dismissed, for the purposes of determining this extension of time application, I find that the alleged “dismissal” occurred on 14 April 2025. I consider when Ms Pham became aware of the alleged dismissal below.
Relevant Dates, Legislation and Legal Principles
I have found that Ms Pham was dismissed on 14 April 2025. For Ms Pham’s application to have been made within the appropriate time (i.e. 21 days after the alleged dismissal took effect), it needed to have been made by midnight on 5 May 2025. The application was filed in the Commission on 27 May 2025 and is 22 days late.
For Ms Pham’s unfair dismissal application to now proceed, it is necessary for her to obtain an extension of time in which to make the application. Section 394(3) of the FW Act provides that the Commission may exercise discretion to allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
the reason for the delay;
whether the person first became aware of the dismissal after it had taken effect;
any action taken by the person to dispute the dismissal;
prejudice to the employer (including prejudice caused by the delay);
the merits of the application; and
fairness as between the person and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[18]
The meaning of the term ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was 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.[19] It is accepted that 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.[20]
I will now consider each of the matters under s.394(3).
Considerations under s.394(3)
What was the reason/s for the delay?
The delay period is the period commencing immediately after 5 May 2025 until 27 May 2025 (the date the application was lodged), although circumstances arising prior to that delay may be relevant to the reason for the delay.[21]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[22]
The Applicant must provide a credible reason for the whole of the delay period.[23]
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.[24]
Ms Pham’s submissions
Ms Pham provided the following reasons for the delay.
Firstly, Ms Pham submits that following the termination of her employment she suffered severe mental health issues including anxiety, panic attacks and depression, and this impacted her ability to file an application within the required time. In support of this position Ms Pham relies on various text and email communication from her to FCCC after her termination where she raises significant concerns regarding her mental health, as well as two medical reports from Dr Aiy Sir Tang at Sia Medial Centre.
The first Medical Report, dated 24 May 2024, refers Ms Pham to a psychotherapist for a number of sessions.
The second Medical Report is dated 2 June 2025 and is titled “Medical Report in Support of Late Application for Unfair Dismissal Review”. In the medical report Dr Tang states:
“It is my professional opinion that Ms Pham’s delay in applying was due to the psychological and emotional impact of the sudden and stressful circumstances surrounding her resignation. Her capacity to make timely decisions and take action was compromised during this period due to genuine distress. Now that she has regained enough clarity, she is requesting the opportunity to pursue a review of what she believes to be an unfair dismissal.”[25]
Secondly, Ms Pham submits that it was not clear when her employment was terminated, and this led to a delay in filing her application. Ms Pham submits it was not clear when her employment terminated because:
-there was no clear communication from FCCC,
-there was no formal dismissal letter or explanation,
-Ms Pham immediately attempted to withdraw her resignation and return to work.
Ms Pham contends she only reasonably became aware of her termination on 8 May 2025, when FCCC’s lawyer indicated no further payments would be made to her.
Thirdly, Ms Pham submits she made ongoing attempts to resolve the matter internally with FCCC. Ms Pham contends that FCCC did not adequately or clearly respond to her efforts to engage, and this contributed to the delay. In oral submissions Ms Pham stated that she thought of the FCCC as a “second home” and thought she could resolve the matters internally. It was only after 7 weeks that she realised this was not going to occur.
Finally, Ms Pham’s application states that she was not aware of the time limits that apply to an unfair dismissal application, or that a resignation could be deemed a dismissal in certain circumstances. Ms Pham gave evidence that it was only after speaking to the Fair Work Ombudsman that she considered making an unfair dismissal application.
FCCC Submissions
FCCC submits that none of the reasons for delay weigh towards a finding of exceptional circumstances.
Firstly, in relation to Ms Pham’s mental health issues, FCCC submits that the medical evidence provided to the Commission does not support a finding that Ms Pham’s mental health was such that her ability to file an unfair dismissal on time was impacted.[26] FCCC submits the first medical report[27] relates to a referral to a psychologist for various reasons but provides no evidence as to why Ms Pham did not have the ability to make an application within 21 days. In relation to the second medical report[28], FCCC submits that it is based on the Applicant’s subjective recount of the events, was produced after the application was made – so is not contemporaneous with the delay - and does not “specify any particular period of incapacity nor explains why the Applicant had capacity to speak to the Fair Work Ombudsman on 16 May 2025 to lodge a dispute or lodge a worker’s compensation claim on 26 May 2025, which would require a similar level of cognitive function necessary to lodge the present Application.”[29]
In its closing submissions, FCCC argues that even if mental illness accounted for some of the delay, Ms Pham is required to provide a satisfactory reason for the whole delay. The fact that Ms Pham contacted the Fair Work Ombudsman on 16 May 2025 shows that Ms Pham was capable of lodging an unfair dismissal application from this time. FCCC points further to the email to the board dated 20 May 2025, and to the Workcover claim filed by Ms Pham on 26 May 2025.
Secondly, in response to Ms Pham’s arguments that she was unaware of her dismissal, FCCC submits that a number of text message and emails from the applicant to FCCC show that she was aware of and had accepted that her employment had terminated.
Thirdly, FCCC submits that attempts to resolve the matters in house are not to be considered exceptional circumstances. Further, FCCC submits that Ms Pham’s attempts to resolve the dispute internally primarily related to her claims regarding outstanding entitlements rather than the unfair dismissal claim.
Finally, FCCC further submits that ignorance of the statutory timeframe is not exceptional.
Consideration
On the evidence before me, Ms Pham has clearly been struggling with her mental health this year, particularly after her employment with FCCC came to an end. I reach this finding based on the numerous text messages and emails from Ms Pham to FCCC raising mental health concerns and from the two medical reports from Dr Tang.
I have considerable sympathy for Ms Pham in this regard, and I want to acknowledge her mental health struggles. I accept Dr Tang’s view that Ms Pham’s mental condition impacted on Ms Pham’s usual capabilities and meant “[h]er capacity to make timely decisions and take action was compromised.”[30]
However, on the evidence before me, Ms Pham’s mental health issues do not satisfactorily explain the entire delay for the application. This is because, despite Ms Pham’s mental health issues, Ms Pham had capacity to engaged in a number of other activities in the time between her termination and the filing of her application that are demonstrative of her being capable of filing an unfair dismissal application. These activities include:
Numerous detailed emails to FCCC and FCCC’s lawyers asserting Ms Pham’s entitlement to certain termination payments. See for example the emails sent to FCCC’s lawyers on 18 April and 8 May 2025 above at [18] and [21].
On 16 May 2025, Ms Pham made inquires with the Fair Work Ombudsman regarding her termination and outstanding entitlements.
The email to the FCCC committee on or around 20 May 2025, asserting Ms Pham’s entitlement to certain termination payments and foreshadowing legal proceedings if the matters are not addressed as set out above at [23].
On 26 May 2025, Ms Pham lodged a Workcover claim.
There is also evidence that Ms Pham made inquiries about legal advice during the period, but ultimately did not pursue this because of the cost. [31]
In relation to the emails to FCCC and FCCC’s lawyers, Ms Pham gave evidence that she was able to engage in this correspondence, despite her mental health, because FCCC was like a “second home”. I have some reservations accepting this evidence given the relationship between FCCC and Ms Pham had deteriorated significantly by this stage, and Ms Pham was instructed to deal only with FCCC’s lawyers. However, even if I were to accept this in relation to the emails sent by Ms Pham to FCCC and FCCC’s lawyers, Ms Pham was not able to explain why her mental illness allowed her to make inquiries with the Fair Work Ombudsman but not file an unfair dismissal application. It appears apparent that from 16 May 2025, at the very least, Ms Pham was capable of filing an unfair dismissal application.
Accordingly, I find that Ms Pham’s mental health condition does not provide a satisfactory explanation for the entire delay, and in particular, for the time after 16 May 2025.
I am of the view that the primary reason for Ms Pham’s delay in filing an application was that her central focus after termination was her claim for outstanding entitlements, not a claim that her termination was unfair. In this regard I refer to the multiple emails to FCCC and FCCC’s lawyers after 18 April 2025 regarding alleged outstanding entitlements. In addition, it appears that Ms Pham was unaware of her rights to pursue an unfair dismissal until her meeting with the Fair Work Ombudsman on 16 May 2025. Neither Ms Pham’s lack of focus on an unfair dismissal, or her absences of knowledge about the unfair dismissal regime, including the 21-day time limit, are exceptional circumstances, nor are they an acceptable or reasonable explanation for the delay.[32]
I also do not accept Ms Pham’s claim that she was uncertain of when her employment had ended and this contributed the delay. I find, based on the correspondence between Ms Pham and FCCC, that Ms Pham was aware (or should have reasonably been aware) her employment had ended on 14 May 2025, although she sought to be reinstated. This is discussed further below.
While I acknowledge that Ms Pham repeatedly tried to resolve her concerns regarding alleged outstanding entitlements internally, before pursuing legal advice and an unfair dismissal application, this is not a satisfactory reason for the delay and cannot be seen as exceptional circumstances.
The absence of an acceptable or reasonable explanation for the delay in lodging the application, particularly after 16 May 2025, weighs against the finding of exceptional circumstances.
When did Ms Pham first become aware of the dismissal
Ms Pham submits that she did not become aware that her employment had ended until 8 May 2025.[33] FCCC submits that Ms Pham was aware that her employment had ended on 14 April 2024.
I have found that Ms Pham’s employment ended on 14 April 2024 when she sent a text message to Mr Peterson formally resigning from her role at the Respondent.[34]
On the evidence before me, I find that while Ms Pham was hopeful she could resolve matters with FCCC (including seeking reinstatement), she was aware, or should reasonably have been aware, that her employment had ended from 14 April 2025. In this regard I note:
· Mr Peterson’s text message on 14 April 2025 confirming FCCC accepted Ms Pham’s resignation and stating that Ms Pham’s last day of employment will be 14 April 2025.
· Ms Pham did not return to work after 14 April 2025.
· On 15 and 16 April 2025, Ms Pham sent text messages asking to “return”, even in another capacity.
· On 17 April 2025, FCCC lawyers’ email to Ms Pham confirming her last day was 14 April 2025.
· On 18 April 2025, Ms Pham texted Mr Peterson to arrange a time to collect her personal belongings and inquire about her final payment.
I am satisfied that Ms Pham had the full benefit of the 21 days to file her application. Accordingly, this matter does not weigh for or against a finding of exceptional circumstances.
Any action taken to dispute the dismissal
Ms Pham submits that she took repeated steps to dispute her termination of employment including attempting to withdraw her resignation, sending multiple emails to FCCC and FCCC’s lawyers, contacting FCCC stakeholders, contacting the Fair Work Ombudsman and attempting to obtain legal advice.
FCCC submits that Ms Pham has not taken any action to dispute the termination of employment with the exception of the filing of this unfair dismissal application and an email to stakeholders on 25 May 2025. FCCC submits Ms Pham did not seek to rescind her resignation, and the matters that Ms Pham raised with FCCC went to alleged outstanding entitlements, not disputed dismissal.
I find that Ms Pham did take some small steps to dispute her dismissal. This includes very soon after tendering her resignation, seeking to return to work. While Ms Pham did not use the words “retract” or “rescind”, it is reasonably clear that Ms Pham wished to retract her resignation. She did not however, articulate at that stage that she thought it was unfair for FCCC to rely on the resignation and that she would dispute the termination of employment. This position was much later articulated by Ms Pham in an email to stakeholders, the day before she filed an unfair dismissal application. I also accept that speaking to the Fair Work Ombudsman and seeking legal advice are steps to dispute the dismissal. However, I do not believe that any of these “small steps” put FCCC on notice that Ms Pham disputed her alleged dismissal and intended to challenge her resignation.
In contrast, Ms Pham very clearly disputed her termination payment. Ms Pham sent multiple communications to FCCC and FCCC’s lawyers regarding this matter and there could be no doubt in the Respondent’s mind that Ms Pham may seek to pursue the matter of alleged outstanding entitlements.
Given I have found that Ms Pham made some small steps to dispute the “dismissal” but was overwhelmingly focussed on pursuing alleged outstanding entitlements, I find that this matter does not weigh for or against a finding of exceptional circumstances.
If there is any prejudice to the employer
Ms Pham submits that no prejudice to the Respondent was caused by the delay in the lodgement of her application for an unfair dismissal remedy, as the Respondent was aware that she contested the dismissal from the day she was dismissed. In the alternative, Ms Pham also submits that any prejudice caused to the Respondent by the delay is outweighed by the injustice that would otherwise result from denying her access to a hearing of the merits of her application.[35]
The Respondent submits that it would incur additional expenses and suffer inconvenience and disruption if the matter proceeds to a determination of the other jurisdictional objection and the merits.[36] In the alternative, it also submits that any absence of prejudice found should be treated as a neutral consideration, referring to the decision of Deputy President Boyce in Mr Enrique Aquino v Hypostyle Pty Ltd.[37]
I do not consider that FCCC would suffer any prejudice because of a delay of approximately 3 weeks. This factor weighs neither for nor against a finding of exceptional circumstances.
Merits
The background to this unfair dismissal application have been briefly outlined above at [4 – 25].
Ms Pham contends that her resignation was not voluntary and occurred under severe duress. She submits she was not afforded procedural fairness and was not told the nature of the allegations made against her. She claims that FCCC denied her support and left her in a state of uncertainty and emotional crisis. She denies the allegations of serious misconduct and claims there is no justification for her dismissal on the basis of misconduct.
FCCC submits that Ms Pham voluntarily resigned and accordingly has no claim to an unfair dismissal. FCCC claims that after becoming aware of serious allegations of misconduct by Ms Pham, they put in place reasonable steps to investigate the conduct. Ms Pham chose to resign before this investigation occurred. In these circumstances, the Commission has no jurisdiction to hear Ms Pham’s unfair dismissal claim as no dismissal occurred. In any event, FCCC claims they have evidence that Ms Pham engaged in serious misconduct.
It is evident to me that both the initial jurisdictional matter concerning whether a dismissal occurred and the merits of the application turn on contested points of fact. Evidence in respect of these contested points would need to be heard and weighed in a hearing of this matter, if an extension of time were granted. It is well established that it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of an extension of time hearing.[38]
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the other jurisdictional matter or the merits. Ms Pham has an apparent case, to which FCCC has an apparent defence. In the circumstances, I find that it is not possible to make an assessment of the merits of the application and this factor neither weighs for nor against a finding of exceptional circumstances.
For completeness, I note that throughout this matter, Ms Pham has consistently raised concerns regarding alleged outstanding entitlements, including annual leave. I have not considered this matter as part of the merits as unpaid entitlements are not matters for an unfair dismissal. However, an employer is required to pay out annual leave on termination of employment under the National Employment Standards in the FW Act[39] and if Ms Pham has not been paid annual leave entitlements, she will likely have an action in another jurisdiction. I also acknowledge FCCC submissions that it has a significant alleged overpayment claim against Ms Pham. Again, this may be a matter for another jurisdiction.
Fairness as between Pham and other persons in a similar position?
Ms Pham’s submissions on fairness as between her and other persons in a similar position noted that she was a long-serving employee who had not filed her application on time due to suffering impaired mental health and that it would be fair to hear her claim despite the delay.[40] These submissions go more to the merits of the case and towards addressing other aspects of the consideration for the granting of an extension of time, rather than identifying another employee who was dismissed in similar circumstances.
The Respondent submits, in relation to fairness as between the person and other persons in a similar position, that the Applicant’s situation is similar to that of the Applicant in Taylor v Livable (Liveable).[41] The Respondent submits that both Ms Pham and the Applicant in Liveable filed late applications, resigned from their employment, relied on medical conditions as their primary reason for delay and engaged in other activities during the delay period that demonstrated capability to file an unfair dismissal. The Respondent submits that, as Ms Pham’s situation is similar to that of the Applicant in Liveable, in which an extension of time was not granted by the Commission, it would be unfair for an extension of time to be granted to Ms Pham.
Each application for an extension of time under s.394 of the Act must be considered on its merits and having regard to the particular facts and circumstances of the case. I have set out above the relevant facts and circumstances relevant to Ms Pham’s application for an extension of time. In my view, those facts and circumstances are not sufficiently similar to other cases to warrant a finding that it would be unfair for Ms Pham to be given an extension of time when other applicants in different circumstances have, or have not, been granted an extension of time. In all the circumstances, I consider this factor to neither weigh for or against a finding of exceptional circumstances.
Conclusion – Taking the above matters into account, are there exceptional circumstances justifying an extension of time?
I will now take into account all the matters under s.394(3) to determine if I am satisfied there are exceptional circumstances. For the reasons given above, I have found that Ms Pham’s reasons for delay, particularly for the delay after 16 May 2025, weigh against a finding of exceptional circumstances. I have found all other factors do not weigh for or against a finding of exceptional circumstances. The test for exceptional circumstances is a high bar and when I consider all the factors under s.394(3) individually, in combination or as a whole, I am not satisfied that exceptional circumstances exist.
Not being satisfied there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. Ms Pham’s application for an unfair dismissal remedy is therefore dismissed.
COMMISSIONER
Appearances:
T Truong for the Applicant.
J John for the Respondent.
Hearing details:
2025
3 July
Melbourne
[1] Fair Work Act 2009 (Cth) s.394(2) (‘the Act’).
[2] With reference to matters set out in s.394(3) of the Act.
[3] Exhibit 1, Digital Hearing Book (DHB), Witness Statement of Jennifer Pham, p.44.
[4] Exhibit 1, DHB, Respondent’s Form F3, p.145.
[5] Ibid, p.147.
[6] Ibid, p.148.
[7] Exhibit 1, DHB, Supplementary Witness Statement – Jennifer Pham, p.110.
[8] Exhibit 1, DHB, Respondent’s Form F3, p.137.
[9] Ibid.
[10] Exhibit 1, DHB, Supplementary Witness Statement – Jennifer Pham, p.111.
[11] Ibid, p.112.
[12] Ibid, p.113.
[13] Ibid.
[14] Ibid, p.117.
[15] Ibid, p.119.
[16] Exhibit 1, DHB, Applicant’s Form F2, p.3.
[17] Exhibit 1, DHB, Witness Statement of Jennifer Pham, p.30.
[18] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[19] Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, 5 [13].
[20] Ibid, 5 [13]; Stogiannidis [38].
[21] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[22] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[23] Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at [ 408]-[409]
[24] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[25] Exhibit 1, DHB, Witness Statement of Jennifer Pham, p.59.
[26] Exhibit 1, DHB, Respondent’s Outline of Submissions, p.161-2.
[27] Exhibit 1, DHB, Witness Statement of Jennifer Pham, p.57-8.
[28] Ibid, p.59-60.
[29] Exhibit 1, DHB, Respondent’s Outline of Submissions, p.161-2.
[30] Exhibit 1, DHB, Witness Statement of Jennifer Pham, p.59-60.
[31] Exhibit 1, DHB, Witness Statement of Simon Peterson, p.186.
[32] Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]
[33] DHB 125 – Applicant’s Submissions [4]
[34] DHB 136 – Respondent’s Submissions [6(a)]
[35] Exhibit 1, DHB, Applicant’s Submissions – Extension s.394 FWA, p.125.
[36] Exhibit 1, DHB, Respondent’s Outline of Submissions, p.165.
[37] [2024] FWC 2790 at [19].
[38] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36]
[39] Section 90(2) of the FW Act
[40] Exhibit 1, DHB, Applicant’s Submissions – Extension s.394 FWA, p.126.
[41] Exhibit 1, DHB, Respondent’s Outline of Submissions, p.167-8 and [2024] FWC 2743.
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