Mrs Julie Sleep v Counterpoint Stockfeeds Pty Ltd
[2025] FWC 410
•13 FEBRUARY 2025
| [2025] FWC 410 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Julie Sleep
v
Counterpoint Stockfeeds Pty Ltd
(U2024/13193)
| DEPUTY PRESIDENT CROSS | SYDNEY, 13 FEBRUARY 2025 |
Application for an unfair dismissal remedy – blank Form F2 filed – extension of time refused – no exceptional circumstances.
Mrs Julie Sleep (the Applicant) has made an application seeking a remedy for unfair dismissal (the Application) pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant was employed by Counterpoint Stockfeeds Pty Ltd (the Respondent). Her employment was terminated with effect on 19 September 2024. The Application for unfair dismissal was made to the Commission on 7 November 2024.
The Act requires that an application for remedy from unfair dismissal must be made within 21 days of the date the dismissal took effect, unless the Commission extends that time having found the existence of exceptional circumstances. To have made her application within time the Applicant was required to have made her application by midnight on 10 October 2024. Her completed application was received by the Commission on 7 November 2024. It was therefore made 28 days outside the 21-day time limit imposed by the Act. The Applicant seeks an extension of time within which to make the application.
On 13 January 2025 I issued directions to enable me to determine the application for an extension of time. The Applicant and the Respondent filed submissions and statements in accordance with the directions issued. The matter was heard on 12 February 2024 (the Hearing).
Background
The Applicant initially lodged an unfair dismissal application with the Commission on 8 October 2024, however, the application was incomplete as the Form F2 was blank (the Blank F2). The Blank F2 did contain the various attachments including payslips and a termination letter.
On 9 October 2024, the Commission responded to the Applicant’s Blank F2. That email importantly stated:
The Fair Work Commission received the attached email from you on 8 October 2024.
There was not a completed application from your attached email.
The Fair Work Commission can only start dealing with a case after we receive a completed application on an approved form.
To make an application to the Commission you need to complete the relevant form and visit our apply and lodge page for more information on lodgement details. Where possible we encourage you to apply online.
[Original emphasis]
The Applicant did not respond to the email of 9 October 2024 until 19 days later. On 28 October 2024, the Applicant sent an email which relevantly read:
Can you please advise what is happening with my unfair dismissal claim as I havn't been contacted for payment.
On the same day, the Commission sent a further email reiterating that the Application was blank. The email relevantly stated:
The Fair Work Commission received the attached email from you on 28 October 2024. We attempted to call you on the contact number provided, but there was no answer.
Although you refer to your earlier email we received on 8 October 2024, there was not a completed application form attached to that email. We contacted you via email on 9 October 2024 to advise of this issue.
The Fair Work Commission can only start dealing with a case after we receive a completed application on an approved form.
To make an application to the Commission you need to complete the relevant form and visit our apply or lodge page for more information on lodgment details. Where possible we encourage you to apply online.
There are strict time limits for some application types. Some applications are dismissed if they aren’t lodged within the time limits.
[Original emphasis]
Ten days later, on 7 November 2024, the Applicant responded, and attached the complete Form F2, 28 days out of time. In that email, she noted:
I called today to find out what was happening with my case and was told they had emailed me to say l didn't send completed form, this email went to my junk box.
So please find attached correct f2 form, please advise once received.
The Applicant submitted that she was unaware that the Blank F2 was blank when she initially lodged her application on 8 October 2024. She stated that she did not receive the Commission's email on 28 October 2024, as it went to her junk mail. The Applicant further stated that she did not receive the email from the Commission on 9 October 2024, and said she thought it may also have gone to her junk mail.
It was only when the Applicant contacted the Commission on 7 November 2024 to inquire about the status of the Application that she realized the Blank F2 was incomplete. The Applicant argued that she acted promptly upon discovering the issue and submitted the correct Form F2 on 7 November 2024. The Applicant also highlighted that she had been suffering from adjustment disorder with anxiety due to losing her job, which contributed to the delay.
The Respondent did not submit anything with respect to the Application being made out of time, and at the Hearing made a brief submission stated it was a matter for the Commission. Notwithstanding the lack of substantive submissions by the Respondent, the requirements of s.394(3) on the Commission are mandatory, and the Commission may only allow a further period if it is satisfied there are exceptional circumstances.[1]
The Commission is required to assess whether or not the six nominated criteria either individually or combined amount to “exceptional circumstances”.
Consideration
Section 394 of the Act outlines the permissible time limit for an unfair dismissal application. Section 394(2) of the Act provides:
“(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).”
The first issue in this matter is when was the Application made. It was either on 8 October 2024, when the Blank F2 was filed, or on 7 November 2024, when the Application was filed. The Blank F2 was filed within time, while the Application was filed 28 days out of time.
While it is clear that documentary information including a letter advising of the termination of an Applicant’s employment, payslips or the contents of a covering email to which documents are attached, may be capable of being accepted as an application in substance, so that an application will be made at the time that material is lodged,[2] I do not consider that the Blank F2 could be considered an “application” commencing her matter.[3] That is particularly so where she received an email on 9 October 2024, within the 21 day period, advising:
There was not a completed application from your attached email.
The Fair Work Commission can only start dealing with a case after we receive a completed application on an approved form.
To make an application to the Commission you need to complete the relevant form and visit our apply and lodge page for more information on lodgement details. Where possible we encourage you to apply online.
I also note the Applicant was further advised of the deficiencies in the Blank F@ on 28 October 2024, but took no steps to rectify those deficiencies.
I find the Application was made on 7 November 2024.
As the Application was lodged outside of the 21-day timeframe prescribed by s.394(3), I must satisfy myself that a ‘further period’ should be allowed. Section 394(3) of the Act determines under what circumstances the Commission may allow a further period. Section 394(3) provides:
“(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.”
It is clear from the structure of s.394(3) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.394(3) of the Act, there are exceptional circumstances.
(a) Reason for the delay
When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479 stated at [30]:
“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”
A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 noted at [39]:
“The absence of any 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 the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”
Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation.
In the Application, the Applicant selected the option noting that she made her application within the 21-day time limit. In her Statement, she noted the following:
Not realising l had attached the blank F2 form back and not the completed one.
I also sent a copy of Statement of Payout and a copy of letter that l sent to Paul around the bullying issue.
7/11/24 I called to see what was going on with application as l hadn’t received anything to pay. I was told that they had emailed me asking for a completed F2 form on the 28/10/24 I told them l hadn’t received an email so while l was on the phone with them l checked my junk mail, and the email was in there. Until this point l didn’t realize l had sent the incorrect one.
The Applicant was made aware by the Commission on 9 October 2024 that her Form F2 filed on 8 October 2024 was a blank form and that it was therefore unable to be processed. During the Hearing, the Applicant conceded that at the time of filing the Blank Form F2, she was aware of the 21-day time deadline.
It wasn’t until 28 October 2024 that the Applicant sought to further advance her Unfair Dismissal claim, 18 days out of time. Thereafter, the Applicant waited a further 10 days until she made a further enquiry and filed the Application. The Applicant did not provide a satisfactory reason for the delay between 9 October 2024 and 28 October 2024, nor for the further delay until 7 November 2024. The Commission made reasonable efforts to notify the Applicant of the incomplete application.
It is not an exceptional circumstance for emails to be directed to a junk folder, as the email of 28 October 2024 was, and the email of 9 October 2024 may have been. A diligent Applicant would not have allowed 19 and 10 days, respectively, to lapse between enquiries. This is not a matter where there was no communication from the Commission to the Applicant regarding the Application.[4]
The Applicant's claim of suffering from adjustment disorder with anxiety is noted, but it does not sufficiently explain the prolonged delay in responding to the Commission's notifications.
In all the circumstances, the Commission cannot be satisfied that the Applicant’s stated reasons for filing her application out of time, constitute exceptional circumstances, as contemplated by the statute.
(b) Whether the person first became aware of the dismissal after it had taken effect
On 19 September 2024, the Respondent issued a Termination Letter which read:
Dear Julie,
Termination of your employment by reason of redundancy
The purpose of this letter is to confirm the outcome of a recent review by Counterpoint Stockfeeds Pty Ltd of its operational requirements, and what this means for you.
As a result of lower tonnage and balancing the overheads with the tonnage we are requiring less staff and I will be taking a more hands on approach to the Accounts Management side. The position of Accounts Manager is no longer needed. Regrettably this means your employment will terminate. This decision is not a reflection on your performance.
I understand that the full-time generalist position offered you declined as not being suitable for you.
Your employment will end immediately. Based on your length of service, your notice period is four weeks. Instead of receiving that notice, you will be paid the sum of $5,769.23, plus the redundancy entitlement set out below.
Due to your employment ending because of redundancy, you will also be paid redundancy pay of $2,884.62 in accordance with your employment contract. This amount represents 2 weeks’ redundancy pay which is based on your years of service.
You will also be paid your accrued entitlements and any outstanding pay up to and including your last day of employment. This includes the balance of any time off instead of overtime paid accrued but not yet taken (paid at the overtime rate applicable when the overtime was worked), and superannuation.
If you have been paid annual leave in advance, any amount of annual leave still owing will be deducted from your final pay.
You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at fairwork.gov.au
Redundancy and leave payments will usually give rise to waiting periods for Centrelink payments. You should contact Centrelink to find out how long you have to wait to receive any applicable benefits. The best way to do this is to lodge a claim for payment.
Affected employees and their partners have immediate access to tailored employment services under the Early Access initiative, prior to becoming eligible for income support.
I am satisfied that the Applicant became aware of her dismissal on 19 September 2024. This is not a relevant factor in this matter.
(c) Action taken by the person to dispute the dismissal
Neither party made any submissions on this limb. I consider this to be a neutral factor in this matter.
(d) Prejudice to the employer
The Respondent made no particular submission regarding this consideration. Accordingly, I consider that this is a neutral factor in my consideration.
Merits of the application (s 394(3)(e))
It is appropriate to note that a consideration of the merits of an Application at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis; See: Kyvelos v Champion Socks Pty Limited[5]. [6]
I note, however, that the Respondent raised the further jurisdictional objection in its Form F3, noting that the dismissal was a genuine redundancy. Despite that above issue, I cannot make any findings on contested matters without a hearing on the evidence.
In the matter of Kornicki v Telstra-Network Technology Group[7] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive 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.”[8]
I adopt the reasoning of the Full Bench of the Commission in relation to the consideration of merits. I consider that this is a neutral factor.
(f) Fairness between the person and other persons in a similar position
Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.
Conclusion
As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any significant weight was the absence of any acceptable reason for delay. That factor weighed in the Respondent’s favour.
I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.
DEPUTY PRESIDENT
Appearances:
Mrs J Sleep the Applicant
Mr P Ebbels on behalf of the Respondent.
Hearing details:
12 February 2025.
Microsoft Teams.
10AM.
[1] Singh v Carpentaria Disability Services Inc.[2014] FWC 8123, at [19].
[2] Hedger v The Trustee for Perrott Trust T/A Perrott Engineering Pty Ltd [2023] FWC 231, at [52].
[3] Daley v Ambulance Victoria [2022] FWC 122, at [33] to [35].
[4] Contrast Hedger v The Trustee for Perrott Trust T/A Perrott Engineering Pty Ltd [2023] FWC 231, at [62].
[6] Print T2421, at [14].
[7] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[8] Ibid.
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