Ms Leonie Fuge v Ichiban Sushi Wodonga Pty Ltd
[2025] FWC 681
•7 MARCH 2025
| [2025] FWC 681 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Leonie Fuge
v
Ichiban Sushi Wodonga Pty Ltd
(U2025/599)
| COMMISSIONER WILSON | MELBOURNE, 7 MARCH 2025 |
Application for an unfair dismissal remedy
In this matter the Applicant, Ms Leonie Fuge, asserts a dismissal with effect from Tuesday, 24 December 2024. For its part, the Respondent asserts the Applicant’s dismissal was notified to her on Tuesday, 10 December 2024 and was later confirmed to her in writing on Tuesday, 24 December 2024, with the effective date of termination being Friday, 20 December 2024.
Ms Fuge commenced an application for an unfair dismissal remedy with the Fair Work Commission on 17 January 2025. Using either date of effect of the termination – Friday, 20 December 2024 or Tuesday, 24 December 2024 – the Applicant’s application has been made outside of the statutory time limit for the making of such applications, which is 21 days.
Using Ms Fuge’s nominated date of termination, Tuesday 24 December 2024, her application is 3 days out of time, with the last day for an in-time lodgement being Tuesday 14 January 2025. In the alternative, using the Respondent’s nominated date of effect of termination, Friday, 20 December 2024, the application is 7 days out of time, with the last day for an in-time lodgement being Friday, 10 January 2025.
Whether the period of time beyond the statutory time period is 3 or 7 days, Ms Fuge’s application is unable to progress unless an extension of time is granted by me pursuant to section 394(3) of the Fair Work Act 2009 (the FW Act).
The matter of an extension of time for the application was the subject of a determinative conference conducted before me on Thursday, 6 March 2025 at which the Applicant, Ms Fuge, appeared and gave evidence, supported by her daughter Ms Diane Fuge with Mr Tim Wong appearing on behalf of the Respondent.
Despite directions having been given to the parties for the filing of material in support of their respective cases relating to the extension of time objection, the Applicant did not do so, meaning the Respondent then had no submissions or documents to which it could respond. The initial filing directions were issued by me on Tuesday, 21 January 2025 which required the Applicant to file material in support of an extension of time by Thursday, 30 January 2025 and the Respondent by Thursday, 6 February 2025, with a hearing or determinative conference to be held on Thursday, 13 February 2025. During a non-compliance hearing held by me on 11 February, the filing and hearing dates were reset and the parties were cautioned about the consequences of a further failure to comply with the Commission’s directions. The filing dates were reset to Wednesday, 19 February 2025 in the case of Ms Fuge and Wednesday, 26 February 2025 in the case of Ichiban Sushi Wodonga.
Other than to provide two medical certificates relating to her employment, the Applicant did not comply with the amended filing directions, meaning that again the Respondent then had no submissions or documents to which it could respond.
Whether an extension of time is to be granted for an unfair dismissal application requires the Commission to address the matters within s.394 of the FW Act. Aside from requiring that an unfair dismissal application be made within 21 days after the dismissal took effect, the section also permits application to be made within such further period as the Commission allows under s.394(3).
In considering an application for an extension of time for the making of an unfair dismissal application, the FW Act requires I must be satisfied that there are exceptional circumstances for the making of the application taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.[1] A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.[2]
BACKGROUND
Because of Ms Fuge’s failure to file material in support of her case, and the fact that the Respondent also did not file any submissions or provide any documents, I have extremely limited material before me about the circumstances of the dismissal or why Ms Fuge’s application was filed late.
I note that Ms Fuge had been employed by the Respondent since 15 August 2024 and that she was dismissed while on personal leave. I also note that in late December she provided two medical certificates to her employer; the first is dated 10 December 2024 and certifies an unfitness for work between 10 and 20 December 2024. The second is dated 20 December 2024 and certifies an unfitness for work between 20 December 2024 and 3 January 2025. Neither certificate explains the late lodgement of this application.
The circumstances of the dismissal include that Ms Fuge was away from work, and in Mr Wong’s view, repeatedly so. He grew frustrated by Ms Fuge’s absences and, in his view, he considered that Ms Fuge was unwilling to follow his instructions and perform the work he required to be done.
LEGISLATION
Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the Act;
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.(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).
(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.”
CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT
A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”;
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon”.[3]
In considering whether an extension of time should be granted to Ms Fuge, I am required to consider all of the criteria in s.394, which I now do.
1. The reason for the delay
The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.[4] An applicant needs to provide a credible reason for the whole of the period that the application was delayed,[5] however the delay requiring consideration is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.[6]
Consideration of this criterion requires examination of whether there is a credible reason for the whole of the period that the application was delayed beyond the prescribed 21 day period for lodging an application.
Noting the contested dates of termination referred to above, I doubt that such conversation as Mr Wong had with Ms Fuge on 10 December 2024 can be legitimately construed as a dismissal. When Mr Wong spoke with Ms Fuge, he said he needed his workers to work for him and that she caused problems for him if she did not turn up for work. Mr Wong conceded that in any event he did not in this conversation use words such as “termination”. It is unlikely that Ms Fuge could have reasonably considered from what Mr Wong said on 10 December 2024 that her employment ended on that date. Accordingly, I find that Mr Wong terminated Ms Fuge’s employment in the email he sent her late on 24 December 2024, purporting to backdate her termination to Friday, 20 December 2024.
Whether Ms Fuge was dismissed with effect from 24 December 2024 as she contends, or 20 December 2024 as Mr Wong contends, either date means the Applicant’s unfair dismissal application, lodged on Friday 17 January 2025, was made outside of the statutory time limit.
If the date of effect of the termination was 20 December 2024, the last day for an in-time filing was Friday, 10 January 2025, meaning the application was made 7 days out of time. If the date of effect was 24 December 2024, the statutory filing period expired on Tuesday, 14 January 2025, and the application was 3 days out of time.
Ms Fuge’s originating application does not acknowledge her application is made late and provides no explanation on that subject and she has provided no written submissions on the matter. Ms Fuge’s oral evidence in the determinative conference conducted by me included that she was assisted in making her application by her daughter, was not aware of the statutory time-limit and cannot recall when she learned there was one. Ms Fuge also submitted that she considered making an unfair dismissal application soon after being dismissed and sought information from the Fair Work Commission about making an application, although she is not certain when that was. At best, Ms Fuge’s explanation about making a late application is that she was not aware of her unfair dismissal rights and especially the statutory time limit for making an unfair dismissal application.
The FW Act provides a three-week period for the making of unfair dismissal applications, partly in recognition that a person who has lost their job needs to assimilate their position, gather their thoughts and obtain advice and then commence an application. The fact that a person knows little of their rights, or that they may have been seeking general advice about what to do, is neither unusual nor exceptional. Similarly, mere ignorance of the statutory time limit is not an exceptional circumstance.[7]
I am not satisfied from Ms Fuge’s evidence that there is a cogent explanation as to why her application could not have been made earlier or what caused the making of her application to be delayed until 17 January 2025. The matters referred to by Ms Fuge do not amount to a credible explanation by her as to why the application was made late.
As a result of these circumstances, I consider Ms Fuge has not provided an acceptable reason for the delay in making his unfair dismissal application. Accordingly, consideration of this criterion leans against a finding of exceptional circumstances.
2. Whether the person first became aware of the dismissal after it had taken effect
On the basis of the evidence before me, I am satisfied that Ms Fuge first became aware of the termination of her employment on 24 December 2024, with the Respondent putting forward that the termination took place before Ms Fuge learned the matter. The gap in these matters is slight, wholly within the statutory time-limit and is not sufficient to explain why Ms Fuge’s unfair dismissal application was made late. Ms Fuge could still have commenced an in-time unfair dismissal action, even after learning she had been dismissed a few days earlier. Accordingly, this is a neutral factor in my consideration of exceptional circumstances.
3. Any action taken by the person to dispute the dismissal
Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.[8]
The material before me does not show that Ms Fuge took any action to dispute her termination of employment other than to commence these proceedings.
Consideration of this criterion is also a neutral factor in determination of whether there are exceptional circumstances
4. Prejudice to the employer (including prejudice caused by the delay)
The delay in the filing of the application is 3 or 7 days, depending on the date used to ascertain the date of effect of the termination of employment. Mr Wong puts forward that he would be prejudiced if an extension of time for filing was given to Ms Fuge; he has had to delay an overseas trip because of the action, and he has complied with the Commission’s directions and other requirements whereas the Applicant has not. As these are either matters in the past, or matters of fairness and do not suggest a future prejudice if an extension were given, my consideration of this criterion also resolves as a neutral factor in determination of whether there are exceptional circumstances.
5. The merits of the application
The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.
In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead, the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[9]
The merits of the application to which Ms Fuge refers include that she had received no warnings about her performance, poor or otherwise, and that she was dismissed during a period of medical leave.
For its part, the Respondent submits that Ms Fuge refused to perform certain tasks she was asked to do and that her absence in the days before Christmas caused a problem as that time was very busy for the Respondent. Mr Wong argued that Ms Fuge’s absences caused problems for his business; he needed his workers to work for him and she caused him problems if she did not turn up for work.
There is an obvious contest between the parties that is not capable of being resolved at this time, nor is it desirable or required for me to do so. I do not regard either case as being highly meritorious or highly unmeritorious.
As a consequence, my consideration of the parties’ respective merits is that this criterion is that they are a neutral factor in my consideration of whether there are exceptional circumstances in the applicant’s case.
6. Fairness as between the person and other persons in a similar position
In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either are currently before the Commission, or have been decided in the past.[10] There is no material before me that would enliven this criterion so it too is a neutral factor in my consideration of whether there are exceptional circumstances in the applicant’s case.
CONCLUSION
After consideration of the whole the material before me and the legislative criteria, I am unable to be satisfied that there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Ms Fuge.
For these reasons, I decline to grant an extension of time pursuant to s394 of the Fair Work Act and have issued an order dismissing Ms Fuge’s application as being out of time.[11]
COMMISSIONER
Appearances:
Ms L. Fuge, for the Applicant
Mr T. Wong, for the Respondent
Hearing details:
6 March.
2025.
[1] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[2] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, at [9]
[3] Nulty v Blue Star Group, 2011, 203 IR 1 at [13].
[4] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[5] Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409
[6] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287
[7] Nulty v Blue Star Group, 2011, 203 IR 1 at [14].
[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[9] Haining v Deputy President Drake (1998) 87 FCR 248, 250
[10] Wilson v Woolworths [2010] FWA 2480, at [24]‒[29]
[11] PR785053.
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