Mrs Vanessa Milligan v Altona North Medical Group Pty Ltd
[2025] FWC 728
•13 MARCH 2025
| [2025] FWC 728 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Vanessa Milligan
v
Altona North Medical Group Pty Ltd
(U2025/1286)
| COMMISSIONER MIRABELLA | MELBOURNE, 13 MARCH 2025 |
Application for an unfair dismissal remedy
On 6 February 2025, Mrs Vanessa Milligan (the Applicant) filed an unfair dismissal application with the Fair Work Commission (the Commission) under s.394 the Fair Work Act 2009 (the Act). The Applicant was employed as a receptionist by the Altona North Medical Group Pty Ltd (the Respondent) from approximately October 2021. Following the sale of the Respondent’s business, the Applicant’s position was made redundant, effective as at 15 January 2025. The application was filed one day late. The issue is whether additional time should be allowed for the Applicant to make the application to the Commission.
Extension of time
Under s.394(2) of the Act, an unfair dismissal application must be made within 21 days after the dismissal took effect. Under section s.394(3), additional time may be allowed for a person to make an unfair dismissal application to the Commission if there are exceptional circumstances, taking into account:
• 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.
In deciding on whether there are exceptional circumstances, I must consider and give appropriate weight to each of the matters in s.394(3). These are circumstances that are ‘out of the ordinary course, or unusual, or special, or uncommon’ but that ‘need not be unique, or unprecedented, or very rare’.1
The matter was dealt with by way of determinative conference earlier today at which the Applicant was self represented, and she gave evidence in support of her application, as did her husband, Mr Derek Milligan and Ms Katherine Argyriou, who had been Mrs. Milligan’s solicitor in this matter until yesterday, when a Form F54 discontinuance notice was filed. Beyond filing the Form F3, the Respondent has not filed any further materials or made further submissions.
Relevant factors
Section 394(3)(a) – The reason for the delay
The reason for the delay is one of the factors in s.394(3) that I need to weigh up in assessing whether there are exceptional circumstances in this matter, and the reason itself need not be an exceptional circumstance.
The Applicant submits various reasons for the delay in filing her application. These include personal and medical reasons, family illness, and caring responsibilities that caused great distress and occupied her time.
The Applicant was 39-weeks pregnant at the time of her dismissal, and was due to be induced on 20 January 2025. She was admitted to hospital on four occasions from 20 to 23 January 2025, and was discharged on four occasions, the last being after she had given birth. Complications that required medical attention continued after a difficult birth. The Applicant also continued to care for her older son and her newborn baby daughter.
On the 17 January 2025, the Applicant became aware that her mother-in-law had been rushed to hospital for leukemia treatment, which included a hospital stay and a series of chemotherapy. The Applicant says that at about 5pm on 5 February 2025, she and her husband were informed that her mother-in-law had been rushed into emergency surgery. Later that night, at about 10.00pm, they were both notified that the surgery was successful.
There is a question of what actually caused the delay in the filing of the application. These matters, relating to medical and family reasons, explain a challenging period for the Applicant leading up to 5 January 2025. The Applicant however began the process of seeking legal advice on the day her dismissal took effect when Mr Milligan had a preliminary discussion with a solicitor, Ms Argyriou on 15 January 2025. Not having heard from Mr Milligan, on 29 January 2025, Ms Argyriou contacted the Applicant to follow up the matter, and provided her personal mobile details in an email. On 30 January 2025, Mr Milligan confirmed that his wife wished to make an application for unfair dismissal and requested a fee estimate, which was provided later that day. On 3 February 2025, the Applicant, through her husband, contacted Ms Argyriou confirming that she wished to proceed with the application. Ms Argyriou was on leave until 4 February.
On 4 February 2025, Ms Argyriou provided a draft Form F2 to the Applicant for review and had a further 35-minute conversation with her on the following day regarding changes to be made to this first draft. Ms Argyriou’s undisputed evidence is that during this conversation, she repeatedly advised the Applicant that the deadline for lodgement was later that night on 5 February 2025.
It is Ms Argyriou’s evidence that she sent the revised draft to the Applicant at around 5pm on 5 February 2025. In her oral evidence, she says that she emailed the revised draft and checked her inbox until 9.30pm that evening, waiting for a response from the Applicant. She confirms that she did not attempt to make any contact with the Applicant at any time after she had emailed the revised application. She did not see any of the texts or emails that Mr Milligan sent after 10pm on the evening of 5 February 2025, until the following morning. The minor changes requested by Mr Millagan were made to the Form F2, and after further confirmation from the Applicant, it was lodged with the Commission at 11.19am on 6 January 2025.
The Applicant states that she relied on her husband to contact Ms Argyriou, and that he tried on three occasions on 5 February 2025, after 10.00pm, to do so.
Ms Argyriou was well aware that the 21 days for filing expired at the end of 5 February 2025. She repeatedly emphasised this time limit with the Applicant and her husband. After sending yet another draft to the Applicant at about 5pm on the last day of filing, she did not follow up with a phone call or an email. Ms Argyriou said that she waited to hear from the Applicant until 9.30pm and then went to bed. I find Ms Argyriou’s reason for not contacting the Applicant that evening to be inadequate and unacceptable. Ms Argyriou says she made no contact because she did not want to disturb the family after all the challenges and difficulties they had been facing. Perhaps, the fact that Ms Argyriou had some knowledge of these challenges indicates the opposite, that is, a need to follow up a response with her client. Ms Argyriou certainly showed initiative prior to being retained by the Applicant, following up a potential client when she emailed Mr Milligan on 29 January 2025. In any case, Ms Argyriou could have, and should have, filed the application on 5 February 2025.
Although Ms Argyriou was not assisted by being retained on the second last day before the 21 days expired, she could have filed the application and amended it at a later date. On 5 February 2025, she had a second draft of the Form F2 which had been amended after an extensive conversation with the Applicant. In her witness statement, Ms Argyriou appears to give the following explanation for the late filing of the application:
‘…it is my genuine belief that the Applicant and Mr Milligan did not prioritise the unfair dismissal application or give sufficient attention to the timing for lodgement as they were caring for their newborn child and focused on Mr Milligan’s mother who was receiving treatment and undergoing surgery for a recent cancer diagnosis.’
Curiously, Ms Argyriou had not taken responsibility for the late filing of the application. I consider that the Applicant has an acceptable reason for the delay in the lodgement of the unfair dismissal claim. She instructed Ms Argyriou to represent her and lodge her application. She relied on her to do so. Ms Argyriou has not provided an acceptable explanation for her failure to file the application within time. This is representative error. The reason weighs in favour of an extension of time.
Section 394(3)(b) – Whether the Applicant first became aware of the dismissal after it had taken effect
The Applicant does not dispute that she became aware of her dismissal when it took effect. I will treat this as a neutral consideration.
Section 394(3)(c) – Any action taken by the person to dispute the dismissal
Besides filing this late application, the Applicant did not take any action to dispute her dismissal and I consider this factor tending to weigh against a finding of exceptional circumstances.
Section 394(3)(d) – Prejudice to the Respondent
The Applicant’s submission was simply the words ‘not at all’. I will treat this as a neutral consideration.
Section 394(3)(e) – The merits of the application
The Respondent dismissed the Applicant by way of redundancy due to the sale of the Respondent’s business and there being no genuine alternative positions available for the Applicant. In the Form F3, the Respondent submits that due to the sale of the business on 8 January 2025 and that the sale was to take effect on the 16th of January 2025, there was a compressed period through which to communicate with all staff. The Respondent states that the attempts to contact the Applicant on 13 January 2025 were unsuccessful.
The Applicant submits that her dismissal was not a case of a genuine redundancy and that the Respondent had not engaged in the consultation process as required by the relevant award.
The merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted, and the matter were to proceed. I do not reflect on the merits of the matter in any certain way and, at their highest, they must be taken to be of neutral weighting in my consideration of all relevant factors.
Section 394(3)(f) – Fairness as between the person and other persons in a similar position
This consideration, may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Although the Applicant purported to make submissions on this consideration, she did not bring to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter, in all the circumstances, I will treat it as a neutral consideration.
Conclusion
There was a reasonable explanation for the delay in lodgement of the application. Ms Argyriou failed to file Mrs Milligan’s application in time. This was representative error, and an exceptional circumstance. Having regard to this exceptional circumstance, I consider that it is appropriate to exercise my discretion to extend the period for the application to be made to 6 February 2025. The application will shortly be progressed to hearing.
COMMISSIONER
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<PR785187>
Nulty v Blue Star Group [2011] FWAFB 975 , [13].
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