Olivia Wales v Thejo Australia Pty Ltd

[2025] FWCFB 178

[2025] FWCFB 178

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Olivia Wales
v

Thejo Australia Pty Ltd

(C2025/2888)

VICE PRESIDENT ASBURY

DEPUTY PRESIDENT WRIGHT

DEPUTY PRESIDENT ROBERTS

BRISBANE, 13 AUGUST 2025

Appeal against decision [2025] FWC 778 and Order PR785336 of Commissioner Simpson – Section 394(3) application for extension of time – Whether evidence explaining delay should be confined to events and circumstances occurring in the period from the date the dismissal took effect until the application is filed – Issues such as mental health and homelessness prior to the dismissal may impact on the capacity of an applicant to file an application within the time required in s. 394(2) – Limitation placed on evidence of events and circumstances prior to the dismissal is an erroneous approach – Significant error of fact in relation to homelessness – Decision varied – On redetermination exceptional circumstances found – Extension of time to file unfair dismissal application granted.

Introduction

1. Ms Olivia Wales (Appellant) has lodged an appeal, for which permission is required, against a decision[1] of Commissioner Simpson issued on 19 March 2025 (Decision). The decision concerned an application made by Ms Wales for an extension of time under s. 394(3) of the Fair Work Act 2009 (Cth) (the FW Act) to file an unfair dismissal application with respect to her dismissal from her employment with Thejo Australia Pty Ltd (Respondent). The date the dismissal took effect was in dispute. The Commissioner determined that the dismissal took effect on 4 November 2024, rejecting the Appellant’s submission that her dismissal took effect on 18 November after the expiration of a two-week period for which she received payment in lieu of notice.[2] 

1. The Appellant filed her unfair dismissal application on 9 December 2024, 14 days beyond the 21-day period required by s 394(2)(a) of the FW Act. The Commissioner refused the extension application on the basis that he was not satisfied that there were exceptional circumstances justifying an extension of time. The Appellant appeals the decision on several grounds which are discussed below, including that the Commissioner limited his consideration of evidence that she suffered from mental health issues and was homeless, to the period between the dismissal and the date the application was filed with the Fair Work Commission.

1. The parties were directed to file written outlines of submissions addressing both the issue of permission to appeal and the merits of the appeal. The appeal was heard by video using Microsoft Teams on 17 June 2025. We granted permission to the Respondent to be legally represented in the appeal, over the objections of the Appellant, on the basis that we were satisfied that it would enable the matter to be dealt with more efficiently, taking into account its complexity.[3]  The Respondent was represented by Mr Ian Bennett of Sparke Helmore Lawyers. We express our appreciation to Mr Bennett, who in difficult circumstances, fulfilled his duty to assist the Commission and engaged with the Appellant in a respectful and compassionate manner while representing his client’s interests.

The decision at first instance

1. Section 394(3) provides that the Commission may allow a further period for the application to be made by a person under s.394(1) if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a)the reason for the delay;

(b)whether the person first became aware of the dismissal after it had taken effect;

(c)any action taken by the person to dispute the dismissal;

(d)prejudice to the employer (including prejudice caused by the delay);

(e)the merits of the application; and

(f)fairness as between the person and other persons in a similar position.

1. After discussing the case law in relation to exceptional circumstances, the Commissioner turned to consider the Appellant’s evidence and submissions.  In relation to the reasons for the delay, the Appellant said (in summary) that she:

·   is suffering from severe depression and anxiety affecting her decision making, thinking, sleeping and managing circumstances, and that this had been exacerbated by bullying she had been subjected to at work;

·   mistakenly filed an unfair dismissal application in the Western Australian Industrial Relations Commission (WAIRC) on 1 December 2024, which, like the Fair Work Commission, prescribes that such applications are filed using a form designated ‘F2’ but has a time limit of 28 days for filing which caused her further confusion;

·   was homeless at the time of filing her application and was homeless since May 2024 (prior to her dismissal) until the date of the hearing;

·   was living in a storage facility where trucks loaded and unloaded, and was alternating between sleeping in her car, a leaking caravan, or a tent positioned on the roof of her car; and

·   had no access to toilet and bathing facilities, power to charge her laptop computer and had to go to caravan parks, laundromats and cafes for this purpose and to do washing. 

1. Considering cases where applicants had filed in the wrong jurisdiction, the Commissioner observed that the Appellant had been notified on 2 December 2024, the day after filing her application in the WAIRC, and had taken a further 7 days to file her application with the Fair Work Commission.  The Commissioner also observed that the Appellant did not submit her application to the WAIRC within the 21-day time period and had her application been lodged with the Fair Work Commission in the first instance, it would have been 7 days out of time.  Further, the Commissioner noted that the Appellant had put a significant amount of time and effort into gathering the material she had submitted to the WAIRC and that as this effort had already been expended, the further 7 days after being notified of the error was not ‘immediate’ action to file in the correct jurisdiction[4], notwithstanding the Appellant’s evidence that she started the task of competing the Form F2 for filing in the Fair Work Commission, ‘from scratch’[5].  

1. After noting that the Appellant had provided medical documents including a Patient Heath Summary, medical certificates and evidence of Telehealth consultations and prescribed medication[6], the Commissioner did not accept that a further 7 days was warranted, ‘particularly without specific medical advice from the [Appellant’s] treating doctors about her specific incapacity during the specific period’[7].   The Commissioner went on to state that:

‘The most recent medical information the Applicant has submitted is a medical certificate from 23 October 2024 stating simply that she is “suffering from depression” and screenshots to show that she had renewed her prescription for Fluoxetine (Sandoz) on 11 November 2024 and 10 February 2025. There is other medical evidence to show that she was accessing mental health support up to and including October 2024, however, there has been nothing more contemporaneous than that put before me to support the Applicant’s case, and nothing specifically directed to her capacity in the period from the application was required to be filed and when it was filed. The Applicant submitted that she was in shock at the time of being advised about the redundancy and said she was suffering from depression and anxiety and taking medication for this and it was ongoing.[8]

1. In relation to the Appellant’s evidence of being homeless, the Commissioner said:

‘The Applicant described herself as being homeless, and that her living arrangements were either in a caravan during winter, or in her rooftop tent on her car in the warmer months, and this had been the case since May 2024. The Respondent’s Form F3 response stated the Applicant annual income was $130,000 gross per year, or $2,500 per week and the Applicant did not dispute this. It would be doubtful that these living arrangements would of themselves have prevented the Applicant from being able to file an application within time. In any event despite that issue, she was able to file the application in the WAIRC within the timeframe she incorrectly understood to be 28 days, and I am inclined to the view that it would have been filed within 21 days had the Applicant understood that was the time statutory time limit.’[9]

1. The Commissioner considered when taken together, the reasons for the delay based on the particular facts of the case, were insufficient to explain the 14-day delay and that even if the first 7 days before filing in the WAIRC were found to be justifiable, the additional 7 days after filing that application could not be adequately explained by the evidence provided. The Commissioner assigned a negative weight to the matter s. 394(3)(a). All other matters required to be taken into account were considered neutral, and the application was dismissed on the basis that there were no exceptional circumstances justifying an extension of time of 14 days.

Grounds of appeal and submissions

Appellant

1. Seven grounds of appeal can be distilled from the Appellant’s form F7 Notice of appeal. Ground 1 asserts that the Appellant was denied procedural fairness because she was not properly notified that the hearing before the Commissioner on 10 January 2025 was to deal with a jurisdictional objection hearing regarding whether an extension of time would be granted.  The Appellant contends that this led to a constructive denial of her right to present evidence relating to exceptional circumstances. In support of this ground of appeal, the Appellant submits that the Notice of Listing issued by the Commissioner on 12 January 2025 states: ‘Application for Unfair Dismissal Remedy’ and does not mention that the extension of time would be decided at this hearing. The Appellant explained that she misunderstood a subsequent email from the Commissioner’s Associate on 3 March 2025 concerning an ‘extension of time’ and believed that the email was referring to a request she had made to file further material in relation to the merits of her application.

1. The Appellant submits that she was ‘ambushed’ by the Commissioner failing to clarify that the hearing would determine whether the late application would be accepted and denied her the opportunity to assemble and provide evidence in relation to her exceptional circumstances, specifically her medical diagnoses, homelessness and confusion about legal jurisdiction. The Appellant submits this was a denial of natural justice contrary to the principles in Kioa v West,[10] and that once the Commissioner became aware that she did not understand the purpose of the hearing, which she advised during the hearing, he should have adjourned to allow time for the Appellant to prepare. In oral submissions in the appeal the Appellant accepted that her mental state at the relevant time, including that she suffers from ADHD, may have contributed to her misunderstanding of the correspondence from the Chambers of the Commissioner. 

1. By ground 2, the Appellant contends that the Commissioner incorrectly concluded that she did not provide contemporaneous or sufficient evidence of her medical and hardship circumstances and that some relevant evidence provided was disregarded.  In the hearing of the appeal, and in response to questions from the Full Bench, the Appellant clarified her contention and said that the Commissioner erred by confining his consideration of those circumstances to the narrow time period between when her dismissal took effect and the date her application was filed, rather than considering whether homelessness and mental health issues prior to the dismissal had impacted on her ability to file her application within the required time.  In support of her contention that the consideration of her circumstances was improperly confined, the Appellant referred to an email from the chambers of the Commissioner to the parties sent on 3 March 2025 which states:

“Chambers refers to the below email and voicemail received on Friday from the Applicant, seeking to lodge further material.

The Commissioner is content to receive any additional medical information from the Applicant, however it should be relevant to the question he must consider.

The Commissioner will only be determining whether the Applicant’s application should be granted an extension of time to be filed. Therefore, any medical evidence the Applicant seeks to rely on will need to be relevant to the period between when the termination letter was received and when the application was lodged with the Fair Work Commission.

The Commissioner cannot and will not be determining whether the Applicant’s dismissal was unfair, or any alleged effects on her mental health during employment. Therefore, any medical evidence relevant to the time prior to dismissal will not be relevant to his consideration at this time.

The Applicant should submit any medical information she would like to be considered by no later than 5:00pm AWST Tuesday 4 March 2025. A Digital Court Book of all information submitted in this matter will then be prepared and issued to parties on Wednesday 5 March 2025.’ (bold in original, underlining our emphasis)[11]

1. As we have noted, the Appellant was advised of the termination of her employment on 4 November 2024, filed her application with the WAIRC on 1 December 2024 and filed her application with the Fair Work Commission on 9 December 2024.  The Appellant submits that she provided evidence to the Commissioner in the form of medical records including:

• A Telehealth consultation note recorded by Dr Jan Chaney on 6 February 2024 which states that the Appellant has been prescribed medication due to insomnia.[12]

• A consultation note dated 30 April 2024 from St Johns Emergency Ward, which she attended when she had a panic attack, stating inter alia that the Appellant has been distressed and has had low mood for the last few years, had been experiencing episodes of sternal pain, was taking her father’s medication for epilepsy to try to ‘numb things’, was having difficulty sleeping and was sleeping in a storage facility.  The consultation note also stated that:

  ‘Presenting complaint: feeling overwhelmed fatigue anxious and stress insomnia and recurrent anterior chest stabbing sensation
  suicideal ideation denies plan or intend or self harm
  chest stabbing sensation central restrosternal and not from epigastrium
  denies worsening with move
  SocHX
  Homeless currently
  Examination:
  Teary
  Distraught
  cheparoned by Nurse Student Jade
  …
  Impression:
  Depression with suicidal ideation
  …
  Management:
  refer to ED for depression with suicidal risk
  blood test to check for anaemia, and thyroid dysfunction, and renal function and electrolytes given recent non prescribed Lithium consumption recently
  and for investigations for chest stabbing sensation per ED doctor discretion
  and for psychiatric team evaluation and social worker support for homelessness advised to go to ED immediately
  Letter to Fiona Stanley Emergency Department printed.
  Letter written to Fiona Stanley Emergency Department re. Specialist referral.’[13]  

• A referral to Fiona Stanley Emergency Department for an opinion and management of suicidal ideation with overwhelming depression also dated 30 April 2024.

• A medical certificate dated 16 May 2024 from Dr Chang Keah Ching which states that the Appellant is unfit for work between 16 May 2024 and 17 May 2024 and is taking a medication causing side effects that needs adjustment.[14]

• A Telephone consultation note recorded by Dr Laura Dotto on 1 October 2024 which states that the Appellant was seeking a medical certificate from 16/9 due to being emotional and distressed and that the reason for her visit was depression.[15]

• A medical certificate from Dr Laura Dotto dated 23 October 2024 which states that the Appellant is suffering from depression and will be unfit for work from 21/10/2024 to 25/10/2024 inclusive.[16]

• A referral provided by Dr Dotto on 11 November 2024 for the Appellant to undergo on- line psychology delivered by Mind Spot, stating that the Appellant reported she sat for hours at times feeling overwhelmed, was too tired to think clearly and logically and to do tasks and that her workmates know she is not in a good place. The referral also states that the Appellant has ‘major depression’ and is homeless but employed and that there was a discussion about the Appellant starting Fluoxetine again.[17]

• Text messages on 11 November 2024 and 10 February 2025, providing a link to an ePrescription for Fluoxetine.[18]

• A crisis team referral on 11 November 2024 made by Dr Dotto in relation to concern about the Appellant’s mental health and homelessness.

• A Patient Health Summary in relation to the Appellant from Cottesloe Medical Centre dated 4 March 2025 which shows that Ms Wales was currently prescribed Fluoxetine (20mg) and had an ‘active past history’ of major depression dated from 05/07/2024.[19]

1. The Appellant said that during the initial hearing, she provided evidence of homelessness and poor mental health and that prior to her redundancy she had taken time off for stress leave, was medicated and seeing a counsellor and was being treated for depression to the extent that she could not ‘manage myself to get a home’.[20] The Appellant also said that her mental health conditions are prolonged and ongoing and that this should have been taken into consideration by the Commissioner. Instead, the Commissioner found that while there was evidence to show that the Appellant was accessing mental health support up to and including October 2024, there was nothing more contemporaneous to support her case, and nothing specifically directed to the period between when the application was required to be filed and when it was filed.  The Appellant said that this statement was incorrect, and the Commissioner erred by disregarding evidence of ongoing mental health conditions the Appellant suffered from both before and after the dismissal, which impaired her cognitive functions, decision making and executive functioning skills.

1. In relation to the effects of being homeless, the Appellant explained that from around May 2024 up to the first instance hearing of her unfair dismissal application, and when the appeal was heard, she was living in a storage yard where she parked her car at night and alternated between sleeping in her car, a tent on the roof of her car and a caravan parked in the storage yard, that was neither weatherproof nor secure. This had significant effects on the Appellant’s ability to sleep as she needed to be up at around 4.30 am to exit the storage yard so as not to be seen by truck drivers starting work.[21] The Appellant also described the impact on her, both before and after her dismissal, of the lack of toilet, shower and washing facilities, and said that her ability to file her application within time was further impacted by her lack of access to electricity and Wi-Fi to use her laptop and to access the internet. 

1. In her Form F7 Notice of appeal, the Appellant provided material which was not before the Commissioner at first instance, including photographs showing her car packed with her belongings,[22] a tent which she slept in on top of her car,[23] various locations that she slept in[24] and of herself sleeping in her car.[25] The Appellant said that the photos she submitted in the appeal would have been provided at first instance if she had understood that the hearing would be regarding whether there were exceptional circumstances leading to her filing her application out of time.[26] The Appellant also referred generally to the transcript of the first instance hearing recording oral evidence of her homelessness.  Further, the Appellant said that she was homeless for a four-month period prior to her dismissal up to and including the time of the first instance hearing and continues to be homeless at the time the appeal was heard.  The Appellant informed the Full Bench that she participated in the first instance hearing and the appeal by renting an Airbnb to have access to electricity and Wi-Fi and to look professional. The Appellant also told the Commissioner that she was homeless during the hearing and that she was appearing from an Airbnb she had rented for that purpose.[27] According to the Appellant, the impact of her being homeless was not properly taken into account by the Commissioner as an explanation for the delay in filing her application. 

1. The Appellant submits that these circumstances satisfy the standard of ‘exceptional circumstances’ in Nulty v Blue Star Group[28] and that in similar cases homelessness in conjunction with poor mental health, was recognised as meeting this standard and providing an acceptable reason for delay in making an application.[29] In relation to the Commissioner’s observations about her annual salary of $130,000, the Appellant submitted that while a high income can assist in finding secure and stable accommodation, this may remain unachievable in circumstances where an individual is suffering from severe mental health conditions, including depression, anxiety and ADHD. The Appellant submits that despite her salary, her prolonged period of homelessness demonstrates that her mental health and living stresses are debilitating.  The Appellant also said that she had been absent from work on unpaid stress leave for a period of approximately three and a-half months prior to the termination of her employment, which she had taken on the advice of an employee assistance provider. On completing her period of unpaid leave, the Appellant suffered from the flu and did not return to work before being informed that her role had been made redundant.

1. By ground 3, the Appellant contends that the Commissioner erred by not fulsomely considering the merits of the unfair dismissal claim or the genuine redundancy grounds and accepting the Respondent’s assertions regarding her dismissal without substantiating evidence. It is submitted that despite acknowledging there was a factual dispute regarding an organisational chart provided by the Respondent, the Commissioner did not accept or consider the Appellant’s evidence or statements made during the hearing. The Appellant submits that the Commissioner was obligated under the principles of procedural fairness and natural justice to meaningfully explore the dispute between parties on this point and that it should have been reasonably clear that the matter had merit due to the organisational chart being ‘falsified’ and subsequently causing the Respondent to have no grounds supporting the assertion of a genuine redundancy.

1. By appeal ground 4 the Appellant asserts that the Commissioner erred in characterising the reason for the delay in filing her application as a deliberate choice to exploit the extended period for filing in the Western Australian jurisdiction. It is submitted that the Commissioner should have accepted the Appellant’s explanation that she was confused and misunderstood the jurisdiction she should file in. The Appellant also referred to her mental health and circumstantial challenges as particular factors contributing to her confusion when filing documentation in the WAIRC, citing Palmer v RCR Engineering Pty Ltd[30] as an analogous case where an extension of time was granted based on genuine confusion by an unrepresented applicant who had filed in the wrong jurisdiction. The Appellant also distinguished the facts in her case from those in Snyder v Helena College Council, Inc T/A Helena College,[31] on the basis that the Appellant was not on notice from her former employer that she had filed in the wrong jurisdiction, nor did she receive legal advice to this effect and when she became aware she had filed in the wrong jurisdiction she proceeded to file in the correct jurisdiction.

1. By ground 5 the Appellant asserts that the Commissioner should not have accepted that the Respondent made a $5,000.00 ex-gratia payment or formal redeployment offers to the Appellant, and that the Commissioner should have found that the employer had offered and then revoked a voluntary redundancy.  These findings were said to be significant errors of fact, leading the Commissioner to believe the redundancy was legitimate in circumstances where it was not, and undermining the credibility and fairness of the proceeding.  Ground 6 asserts that the Commissioner misapplied Nulty v Blue Star,[32] by considering exceptional circumstances in the context of the Appellant’s ignorance of the timeframe and jurisdiction and that this should have been broadened to include the context of the Appellant’s homelessness, mental illness and cognitive impairment.

1. Ground 7 of appeal is that the Commissioner erred in determining the date of the termination of the Appellant’s employment and that consequently her application was made within time. In this regard, the Appellant contends that her application was not out of time as the last day of her employment was 18 November 2024, not 4 November 2024. The basis of this submission is that the Respondent paid the Appellant’s termination payments in two instalments, with the final amount being paid on 18 November 2024. In support of this submission the Appellant referred to a letter from the Respondent dated 4 November 2024 stating that a net payment of $16, 523.15 will be made to the Appellant on 6 November 2024.[33] The Appellant also provided a bank transaction history showing that this amount was paid in two instalments of $14,825.15 on 6 November 2024 and a further amount of $1,698.00 on 18 November 2024.  

1. The Appellant submitted that consistent with the decisions in Siagian v Sanel Pty Ltd[34] (Siagian v Sanel) and Coles Supply Chain Ltd v Milford[35] (Coles v Milford) her employment continued until 18 November 2025, when the final payment of her entitlements was made, and that the Commissioner erred by finding that her dismissal took effect on 4 November 2024.  In support of her submission, the Appellant also pointed to information on the website of the Fair Work Ombudsman in relation to notice and final pay, stating that:

‘If the employer pays out the notice, the amount paid to the employee must equal the full amount the employee would have been paid if they had worked until the end of the notice period. ... If the employer pays out the notice period, the employee's employment ends on the date that payment in lieu of notice is made. The employee doesn't stay employed during the notice period (or continue to accrue entitlements, such as annual leave). If the employer doesn’t pay out any part of the notice period, the employee stays employed for the notice period. Employment can’t end on a date earlier than the day the notice is given.’ (emphasis added)[36] 

1. Regarding permission to appeal, it is submitted by the Appellant that it is in the public interest on several grounds for the appeal to be heard. The first is that the Appellant’s case at first instance was hindered by misleading communications from the Commission regarding the purpose of the hearing and that it is in the public interest for the systems of the Commission to be clarified to ensure fairness for unrepresented litigants. The second ground is that it would be in the public interest for the Full Bench to clarify the question of how intricately a commissioner is required to consider the merits of a matter when determining whether to grant an extension of time. The third ground is that protecting the rights of a substantially disadvantaged litigant is in the interest of the broader community beyond the individual interest of the Appellant.

1. After the hearing of the appeal, the Appellant was permitted to file further documentary evidence going to her circumstances, some of which was not before the Commissioner at first instance, including the photographs of her living conditions referred to above. 

Respondent

1. The Respondent submits that there was no error of fact or law in the first instance decision and that Nulty v Blue Star[37] was correctly applied by the Commissioner, no valid ground of appeal has been identified by the Appellant, and the submissions of the Appellant are a reiteration of her case at first instance.  In relation to the Appellant’s assertion in ground 7 that her employment continued until 18 November 2024, when final payment was made to her, the Respondent submits that the Commissioner was correct in determining the termination date as 4 November 2024 as this is consistent with the termination letter provided to the Appellant at the time of her dismissal. It is also submitted that the Appellant did not work past 4 November 2024, the termination pay was processed and intended to be paid immediately and the delay of the final payment was not payment in lieu of notice, but rather was a ‘nominal payment’ which can be attributed to confusion regarding the return of property and the Respondent being required to consider how this may impact any amount payable. It is further submitted that the Appellant’s application in the WAIRC notes that the Appellant was lodging the application to ‘meet the deadline’ which, when calculated, suggests that the Appellant considered the date of termination to be 4 November 2024.

1. The Respondent submitted that the grounds of appeal raised by the Appellant to the effect that the Commissioner erred in applying the ‘exceptional circumstances’ test and did not conduct that matter in a procedurally fair manner by considering the circumstances of the Appellant (grounds 1, 2 and 6) should be rejected. The Respondent submitted that the Commissioner did appropriately consider the circumstances of the Appellant and correctly concluded that the Appellant had provided insufficient evidence of her incapacity at key points and relied on historic records and materials which were not in or of themselves exceptional. Additionally, the Respondent submitted that procedural fairness does not require general emotional distress to be determinative in the absence of probative evidence from a treating practitioner, and the Commissioner’s findings were reasoned, balanced and consistent with the principles of procedural fairness.[38] In the hearing of the appeal the Full Bench invited submissions from the Respondent’s representative as to whether the Commissioner erred by confining his consideration of the reasons for delay advanced by the Appellant at first instance, to the period between the dismissal and the date the application was filed. 

1. Mr Bennett for the Respondent submitted in response to questions from the Full Bench that notwithstanding that the email correspondence from the Commissioner’s chambers of 3 March 2025 indicates that only material relevant to the period from the date of the dismissal to the date the application was filed would be considered, the Commissioner appropriately had regard to all of the evidence the Appellant submitted. It was also submitted that on a reading of the decision in its entirety, the issue was that the evidence tendered by the Appellant may have explained the period up to the filing of the application with the WA Commission, it did not explain why the Appellant waited a further seven days to file the application with the Fair Work Commission.[39]

1. Regarding the appeal grounds relating to the merits of the matter and consideration of genuine redundancy (grounds 3 and 5), it is submitted by the Respondent that the Commissioner appropriately did not substantially address merit, and this is consistent with the usual approach of not considering merit in detail when determining a jurisdictional objection. In relation to the new material submitted by the Appellant in this appeal, the Respondent submits that this information does not change the evidentiary position or undermine the appropriateness of the primary decision. It is also submitted that there was no explanation provided as to why these materials were not submitted at first instance.

1. The Respondent’s submissions on public interest are that the matter does not raise any issues of general application or legal significance and can be confined to its specific factual circumstances. It is stated that the circumstances of the Appellant were appropriately considered by the Commissioner at first instance and did not override the requirement to lodge within the timeframe or satisfy the evidentiary standard for the exceptional circumstances test.

Appeals against decisions under s. 394(3) and permission to appeal

1. An appeal under s. 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[40] There is no right to appeal, and an appeal may only be made with the permission of the Commission. This appeal is one to which s. 400 of the FW Act applies. Section 400 provides:

(1)    Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2)    Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

1. The test under s. 400 has been characterised as ‘stringent’.[41]  A decision as to whether it is in the public interest to grant permission to appeal is discretionary and involves a broad value judgment.[42]  Considerations that may attract the public interest include that a matter raises issues of  importance and general application, there is a diversity of decisions at first instance so that guidance at appellate level is required, the decision at first instance manifests an injustice, the result is counter intuitive, or legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[43] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[44] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[45] Section 400(2) also requires that an appeal on a question of fact from a decision made under Part 3 – 2 can only be made on the ground that the decision involved a significant error of fact. To be characterised as ‘significant’ the alleged factual error must be one that vitiates the ultimate exercise of the discretion.[46]

1. In JBS Australia Pty Ltd v Willie Bara[47] (Bara) a Full Bench of the Commission described the task facing an appellant in an appeal against a decision made under s 394(3) concerning an application for an extension of time. As explained by the Full Bench in that case, the process of decision-making under s 394(3) has two elements, both discretionary in nature. Firstly, the decision-maker must determine whether a state of satisfaction can be reached as to the existence of exceptional circumstances, having regard to the matters specified in paragraphs (a) - (f) of the s. 394(3). Because the provision requires the decision-maker to form an opinion about a matter involving a measure of subjectivity and value judgment, it is properly characterised as allowing a degree of latitude as to the choice of decision to be made, and therefore discretionary in nature, albeit that the exercise of the discretion is guided by the matters required to be taken into account.[48]  

1. Secondly, if the decision-maker is satisfied as to the existence of exceptional circumstances, then the discretion (signified by the use of the word ‘may’ in the subsection) to extend time is enlivened. Satisfaction as to the existence of exceptional circumstances does not necessarily mean that an extension of time will be granted.[49] As the Full Bench in Bara further explained, it follows from the discretionary nature of the decision making process, that in an appeal against a decision made under s 394(3), it will be necessary for the appellant to demonstrate error of the type referred in House v The King[50] namely:

·     an error of law or principle;

·     a material error of fact;

·     a failure to take into account a relevant consideration;

·     taking into account an irrelevant consideration; or

·     a determinative outcome that is unreasonable or plainly unjust.

1. Having regard to these factors, we are persuaded to grant permission to appeal in this case on the basis that the appeal raises an important question of general application, involving the approach to considering the events and circumstances prior to dismissal, and within the 21-day period after the dismissal takes effect, as an explanation for an applicant’s delay in filing an application within the required period. 

Consideration

The approach to dealing with applications for extension of time

1. Before dealing with the grounds of appeal, it is necessary to discuss the approach to dealing with applications for extension of time under s. 394(3) of the FW Act. The power to extend time pursuant to s.394(3) can only be exercised if the FWC is satisfied that there are ‘exceptional circumstances’. The FWC may be satisfied that circumstances are exceptional if they are out of the ordinary course, unusual, special or uncommon.[51] In deciding whether there are exceptional circumstances the FWC must take into account each of the matters specified in s.394(3)(a) to (f), insofar as those matters arise in a particular case. To take a matter into account means that the matter is a ‘relevant consideration’ which the decision maker is bound to take into account.[52] Taking a matter into account requires that it is evaluated and given due weight having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant.[53] In taking into account the matters in s.394(3)(a) to (f) it is not necessary to find that the circumstances pertaining to any of the identified criteria are exceptional, rather the test posited by s.394(3) is whether taking into account all of the relevant specified criteria, there are ‘exceptional circumstances’.[54]

1. Section 394(3)(a) requires that the Commission take into account ‘the reason for delay’ in filing an application as one of the matters relevant to the exercise of its discretion to extend the time for filing an unfair dismissal application. It is well established that the delay required to be considered is the period beyond the prescribed 21-day period for filing an application and does not include the period from the date of the dismissal to the end of the 21-day period. However, this principle means that the period of 21 days from the date of the dismissal is not counted as part of the delay rather than that events occurring in that period cannot be considered in determining whether exceptional circumstances exist. Events or circumstances occurring within the 21 days after the dismissal, or before the dismissal, may have an effect that continues into the period of the delay. Those circumstances or events should not be disregarded in deciding whether there are exceptional circumstances, simply because of when they occurred.

1. It is also well established that there is no decision rule to the effect that the entire period of delay must be explained, before an extension of time to make an application will be granted. As a Full Bench of the Commission explained in Stogiannides v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[55] (Stogiannides), it is not a precondition to the grant of an extension of time that an applicant provide a credible explanation for the entire period of the delay.[56] An approach whereby the entire period of delay is required to be explained, erroneously imposes an arbitrary limitation not expressed in the words of the FW Act,[57] and there is no statutory basis for adopting a decision rule whereby a failure by an applicant to provide a credible explanation for the entire period of the delay in making an application, weighs against the finding of exceptional circumstances.[58] The reason for delay in filing an application is a factor that the Commission must take into account.[59] The Full Bench in Stogiannides also said that:

[38]   …the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39]  So much is clear from the structure of s.366(2), 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 disclose exceptional circumstances. 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.

Appeal Grounds

1. Having made those observations, it is convenient to commence by considering appeal grounds 2 and 6. In ground 2 the Appellant essentially asserts that the Commissioner erroneously confined his consideration of the effect of the Appellant’s mental health condition and homelessness on her capacity to file her application within time, to the period between her dismissal and the date the application was filed, and disregarded other relevant evidence.  Ground 6 also refers to the Appellant’s mental health issues and homelessness and asserts that the Commissioner erred by not considering these matters as exceptional circumstances and instead focused on the fact that the Appellant initially made an application to the WA Commission, as an explanation for delay in filing her application. 

1. The Appellant contends that in concluding that she had not provided a reasonable explanation for the delay, and that there were no exceptional circumstances justifying an extension of time, the Commissioner disregarded evidence establishing that her capacity to file her application within time was significantly impacted by mental health issues and homelessness, both before her dismissal and during the period between the dismissal and when she filed her application. The Appellant contends that these matters should have weighed in favour of a finding that there were exceptional circumstances supporting the grant of an extension of time, rather than being assigned a negative weighting. The Appellant also disputes the Commissioner’s observation that the medical evidence she provided was not contemporaneous or directed specifically to the period between her dismissal and when the application was filed.[60]

1. In support of ground 2, the Appellant points to the email dated 3 March 2025 (extracted above), sent to her from the Chambers of the Commissioner, advising that additional medical evidence she had requested leave to file, would need to be relevant to the period between when the termination letter was received and when the application was lodged with the Commission.  The email further stated that the Commissioner would not be determining whether the Appellant’s dismissal was unfair or any alleged effects on her mental health during employment and that any medical evidence relevant to the time prior to the dismissal would not be relevant to his consideration at that time.

1. As Stoginniadis establishes, an applicant for an extension of time is not required to provide a credible explanation for the entire period of the delay in filing an application.  Applying the same rationale, an applicant asserting mental or physical incapacity as an explanation for delay is not required establish incapacity for the entire period of the delay, or to provide medical evidence that is contemporaneous with, or covers, the entire period between the dismissal and the application being filed.  Medical records in the form of certificates from treating practitioners, hospital admission records or other documentation, issued prior to a dismissal taking effect, may establish to the required standard, that mental or physical incapacity provides a credible explanation for some or all of the period of a delay.  Depending on the evidence, the incapacity may of itself, or in combination with other matters, constitute exceptional circumstances, weighing in favour of the grant of an extension of time.  

1. In the present case, we consider that the email of 3 March 2025 from the Chambers of the Commissioner, indicates that if the explanation for the Appellant’s failure to file her application within time was that she was incapacitated by mental health issues, any medical evidence she provided was required to be contemporaneous with, or specifically cover, or have been obtained during, the period between her dismissal and when her unfair dismissal application was filed.  The email also indicates that evidence which did not refer to the period between the Appellant’s dismissal and the date the application was filed, or was not obtained during that period, would not be considered, or if it was considered would be given limited weight. The email, with respect, indicates an erroneous approach to considering events and circumstances explaining delay in filing an application. 

1. If the email had simply stated that evidence of incapacity was required to be relevant to the period from the date of the dismissal to the date the application was filed, for the purposes of explaining why the Appellant was unable to file her application within that period, no issue could be taken with it. However, the email went on to state that the Commissioner would not consider the alleged effects of any mental health issues during the period of the Appellant’s employment and after she had filed her application.  In our respectful view, that restriction indicates that the Commissioner erroneously limited his consideration of the medical evidence tendered by the Appellant. 

1. There is no rule preventing an applicant for an extension of time, from relying, for the purposes of providing an explanation for delay in filing an application, on events or circumstances occurring or existing at or around the date of dismissal including:

• prior to a dismissal taking effect;

• during the 21-day period after a dismissal took effect when an application could have been made in time; and/or

• the period between the expiration of the 21 days from the date the dismissal took effect and the date the application was made. 

1. What is required is consideration of whether there is a relevant nexus between the events or circumstances relied upon to explain the delay and the delay itself.  The fact that circumstances and events existed or occurred before the dismissal, or within the 21 days following the dismissal, or the period from the 21^st day after dismissal until the application is filed, does not mean that they cannot be taken into account for the purposes of explaining delay in filing an unfair dismissal application. Where those events and circumstances are capable of grounding a finding that an applicant was mentally or physically incapacitated or otherwise impacted, to the extent that they provide a reasonable or acceptable explanation for delay, they may be relevant in the overall assessment of whether there are exceptional circumstances, warranting the exercise of discretion to extend time. To exclude such events and circumstances imposes a restriction on the exercise of determining whether the discretion to extend time is triggered, and if so, whether it should be exercised. Accordingly, the Commissioner’s approach to considering the evidence provided by the Appellant to explain the delay in filing her application, was erroneous. 

1. We now turn to consider whether the Commissioner’s approach to considering the Appellant’s evidence in relation to her mental health and homelessness infected the finding that these matters either alone, or in combination with other matters in s. 394(3), were not exceptional circumstances, so that the analysis required by s. 394(3) miscarried.

1. The evidence before the Commissioner in relation to the Appellant’s mental health issues can be summarised as follows. The Form F2 Application filed by the Appellant contained information to the effect that the Appellant had been receiving treatment for significant mental health issues from at least April 2024, evidenced by a consultation note dated 30 April 2024 recording inter alia that she was homeless, gave the impression of depression with suicidal ideation and was referred to the Emergency Department of St John’s Hospital for depression with suicidal risk.  The Form F2 also included information to the effect that the Appellant had been on unpaid ‘personal leave’ due to her mental health issues for an initial period of one month which was extended up to the date of her dismissal, and that the period of unpaid leave prior to dismissal was three and a-half months.  The Appellant appended medical certificates to the Form F2 which she had provided to the Respondent, evidencing her treatment for depression during the period of her absence, the most recent dated 23 October and a crisis referral dated 11 November 2024 – one week after the Appellant’s dismissal took effect.  The Appellant also stated during the hearing at first instance that the severity of her condition meant that she could not even manage to get herself a home.[61]  We have extracted that material above.

1. The transcript of the hearing before the Commissioner indicates that the Appellant stated that she had been continuously homeless since May 2024 and was renting accommodation via Airbnb for the purpose of conducting the hearing.  The Appellant had the following exchange with the Commissioner in which she described her living conditions prior to and at the time she was dismissed, and at the time the first instance hearing was held: 

THE COMMISSIONER:  … the only other matter I wanted to raise with you, Ms Wales, is you say in your material that you had a period when you were homeless but it's not completely clear to me what that period was.  Can you describe for me when you say you were homeless?

MS WALES:  I still am.  At the moment I'm actually renting an Airbnb for this procedure, in Scarborough.  So basically I – after 4 February 2024, when we had – this was the biggest episode of bullying and psychological stress in the whole hearing.

THE COMMISSIONER:  Yes, I don't want to get into the facts around that.

MS WALES:  Okay.

THE COMMISSIONER:  I'm just interested in knowing what period you say that you were homeless.

MS WALES:  So from, I would say, about June last year.  June or May – no, May last year, and to currently now.

THE COMMISSIONER:  So what - - -

MS WALES:  I'm sitting in my car, in the rooftop tent.  And I was, last year, in the winter, I parked a caravan in a storage yard and through the winter months I didn't tell work this because it was so humiliating but I was sleeping in a storage yard and the canvas was leaking, my bed was soaked constantly.  I was so disorganised in my head from mentally being just depressed that I couldn't organise myself or do tasks or anything.  And I was still turning up to work like nothing was happening.

THE COMMISSIONER:  Can I just be clear.  So you're saying from May or June last year, you've been sleeping in your car.  You're sleeping in a rooftop tent which is fixed to the top of your car?

MS WALES:  At the moment, yes.  In the summertime - - -

THE COMMISSIONER:  No.  No.  Well, what was your arrangements at the time
of – at the period from your termination to the date you filed the application on 9 December last year?

MS WALES:  I would've been sleeping in my rooftop tent because it was summertime.  The wintertime I had the caravan.[62]

1. The Appellant also stated in her Form F2 Application (to the point of being repetitive) that she had been on unpaid leave from the Respondent for three and a-half months prior to her dismissal (referred to by the Appellant as ‘stress leave’) and was dismissed when she returned to work from that leave.[63] The Respondent’s legal representative at the first instance hearing was given an opportunity to cross-examine the Appellant in relation to her written and oral statements, and declined to do so, notwithstanding that the Commissioner noted the Appellant had provided additional oral evidence about these matters to that provided in her filed material.[64]

1. While the Commissioner noted that the Appellant had been homeless since May 2024 and that she had provided medical evidence in relation to her mental health issues,[65] he went on to conclude that there was no medical evidence of her mental health issues ‘more contemporaneous’ than a medical certificate dated 23 October 2024, ‘simply stating that she is suffering from depression’[66]. In reaching this conclusion the Commissioner did not consider relevant evidence establishing that the Appellant was suffering from mental health issues from at least April 2024 and the likelihood that those issues were continuous.  The Appellant was dismissed with effect from 4 November 2024 – a short time after the 23 October medical certificate was issued.  The crisis referral was provided by her treating medical practitioner on 11 November, one week after her dismissal. The evidence also shows the Appellant continued to be prescribed medication to treat her mental health condition into the first quarter of 2025. 

1. Considered as a whole, the evidence is sufficient to establish that the Appellant’s mental health issues were serious and ongoing, extended into the 21-day period following the termination of her employment and persisted into the period of the delay in filing her unfair dismissal application. In our view the erroneous approach the Commissioner took to limiting his consideration of the medical evidence to the period after the dismissal, resulted in that evidence not being properly considered. 

1. The Commissioner’s approach of limiting his consideration to evidence of the Appellant’s circumstances during the period following her dismissal and the period of the delay, also led to a failure to properly consider the significance of the Appellant’s homelessness, both of itself, and as an indicator of her mental health issues. The Appellant’s uncontested evidence was that she had been homeless for seven months when she filed her unfair dismissal application, firstly in the WA Commission and then the Fair Work Commission.  The severity of the Appellant’s mental health issues is apparent from her uncontested evidence that she could not organise herself sufficiently to find a home and that she had been living for seven months in her car, a tent on the roof of the car and a caravan, parked in a storage facility, without electricity, toilet, bathing and washing facilities and in circumstances where the tent and the caravan were not weatherproof.  If the Appellant’s mental health issues resulted in her living in such circumstances, it is more probable than not that they incapacitated her from making an unfair dismissal application within time. 

1. In our view, the fact that the Appellant was homeless when she made her application to the Fair Work Commission on 19 December 2024, and at that point, had been homeless for some seven months, including a period where she was working and earning an income, and was living in what can only be described as extremely difficult circumstances, was of itself an exceptional circumstance. The living conditions described by the Appellant in her material at first instance are unusual and out of the ordinary. Not only was she dealing with the necessity of finding a secure place to sleep each night, but the Appellant also had no access to bathing and laundry facilities, let alone access to electricity to charge her laptop, and to the internet to file an unfair dismissal application. In the circumstances confronting the Appellant, the fact that she managed to file an application in the WA Commission despite her living conditions, is not a basis for a finding that her circumstances were not exceptional or that she could have filed the application in the Fair Work Commission at an earlier date.   

1. That the failure to consider the impact on the Appellant of being homeless, and to afford appropriate weight to that circumstance, was the result of the Commissioner disregarding evidence prior to the date of the Appellant’s dismissal, is apparent from the Commissioner’s observation that the Appellant earned $130,000 per annum or $2,500 per week, but ‘described herself as homeless’, and the finding that it was unlikely that her living arrangements would have prevented the Appellant from making an unfair dismissal application within time. The Appellant’s description of her living conditions was accurate, and she was, in fact, homeless.  In addition, the had not received her salary of $2,500 per week for three and a-half months prior to her dismissal as she was absent from work on unpaid leave. 

1. The focus should have been on whether having regard to all the evidence, including that the Appellant was on unpaid leave, homeless and was impacted by a mental health condition, during her employment, and for the period from her dismissal to the date her application was filed,  the Appellant provided a reasonable explanation for the delay in filing the application and whether there were exceptional circumstances having regard to the matters raised either individually or in combination with other circumstances. To the extent that it was determinative of the Commissioner’s assessment of the impact of the Appellant being homeless, the Commissioner’s observation about the Appellant’s earnings also appears to have involved a significant error of fact. The Appellant had been on unpaid leave for three and a-half months prior to her dismissal and was dismissed upon returning from that period of leave. In those circumstances, the Appellant’s annual earnings were not a basis for assessing the impact of homelessness on her capacity to file her unfair dismissal application within time. Further, the evidence established that the Appellant was homeless while she was working and being paid, indicating, consistent with the Appellant’s assertions, that the fact she was homeless was related to her mental health. 

1. We uphold appeal grounds 2 and 6, on the basis that the Commissioner’s approach to the relevance of evidence concerning events and circumstances occurring outside the period between the dismissal and the Appellant filing her unfair dismissal application is erroneous and that consideration of whether the discretion to extend time under s. 394(3) was triggered and should be exercised, miscarried.

1. We reject ground 1 of the appeal on the basis that we do not accept that the Appellant was denied procedural fairness in relation to the fact that the first instance hearing was to deal only with whether an extension of time should be granted.  The Notice of listing issued by the Commissioner clearly explained the purpose of the hearing. Contrary to the Appellant’s assertion in ground 3, the Commissioner did not err by limiting his consideration of the merits of the application.  It is well established that the Commission should not embark upon a detailed consideration of the merits of the substantive case in determining whether to grant an extension of time.[67] The Commissioner’s approach to considering merit was orthodox and discloses no error.

1. In relation to merit, we note that if the matter proceeds to hearing, the issue for determination will be whether the dismissal was a case of genuine redundancy.  The Respondent’s submission at first instance that the dismissal was for a valid reason, will not be relevant to the determination of the genuine redundancy issue, as s. 387(a) relates to dismissals related to conduct or capacity rather than to a decision to make an employee’s position redundant.  The fact that the Appellant may not be covered by an Award and not entitled to the benefits of the model consultation term is also not determinative. A person’s dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated enterprise. The Appellant maintains that there was no discussion or consideration in relation to redeployment. The Respondent’s jurisdictional objection depends on disputed facts which can only be determined at a hearing.  We reject ground 3.  

1. We also reject ground 4. The Commissioner did not characterise the Appellant filing her application in the WAIRC as a deliberate choice to extend the period for filing. The Commissioner simply observed that when the Appellant filed her application with the WAIRC, she was already out of time to file in the Fair Work Commission and that having prepared the application filed in the WAIRC, it should not have taken a further seven days to file it with the Fair Work Commission. We have dealt with those matters in appeal ground 2. Ground 5 is rejected. The matters of whether an ex-gratia payment was made or whether redeployment was offered, are relevant to merits and will be considered at any hearing of the Appellant’s application. The Commissioner did not err in relation to the manner in which he dealt with these matters.

1. By ground 7 the Appellant asserts that the Commissioner erred in rejecting her contention that her employment ended on 18 November 2024 and not 4 November. The facts on which this is asserted are not in dispute. The Appellant was informed of her dismissal by letter dated 4 November 2024. The letter unequivocally stated that employment ended on that date and that the Appellant was not required to work during her period of notice.  The Appellant did not work during her period of notice, and other than the Appellant’s assertion, there is no evidence that she was told that she could work during that period. The Respondent processed the Appellant’s final pay, with the intention that it would be paid immediately on termination of her employment. A component of the amount owed to the Respondent and which she had been informed in the letter of 4 November 2024 would be paid on termination of her employment, was ‘deferred’ and was not paid until 18 November 2024. The amount that was not paid equates to one weeks’ pay less taxation. The Respondent submits that the non-payment of this amount was attributable to confusion stemming from the Appellant’s non-compliance with requests that she return property to the Respondent. The Appellant contends that the Respondent’s failure to pay her entitlements on termination in full until 18 November 2024, meant that her dismissal did not take effect until that date.

1. In our view, the Commissioner correctly rejected this argument. The cases cited by the Appellant in support of her contention do not support the proposition that employment legally continues until the employer has fully and finally settled all outstanding payments and entitlements owed to the employee. The facts in Siagian v Sanel[68] were that on 29 March 1994, Mr Siagian, the applicant employee, was informed that his employment had been terminated with immediate effect and was handed a cheque for his accrued entitlements and wages up until 15 April 1994.  Mr Siagian sought a remedy for unlawful termination of employment under legislative provisions that commenced on 30 March 1994. If the termination of Mr Siagian’s employment took effect before 30 March 1994, it could not have been in breach of legislative provisions commencing on that date. It was therefore critical for the court to determine the date upon which the termination of Mr Siagian’s employment took effect. 

1. Two arguments were advanced by Mr Siagian.  The first was that while Sanel repudiated Mr Siagian’s contract of employment by dismissing him without proper notice, the dismissal did not take effect until Mr Siagian accepted the repudiation on 31 March 1994. The second argument was that while the notice given to Mr Siagian on 29 March was effective to terminate his contract of employment, the employment did not come to an end until 15 April 1994, the date to which payment in lieu of notice was made. 

1. In relation to the first argument, Wilcox CJ held that Mr Siagian’s employment was effectively terminated on 29 March when a cheque with a statement of earnings on termination was given to him, his keys were taken off him and he was escorted from the premises. His Honour said that if the employer was not entitled to make payment in lieu of notice or the notice period was too short, this only meant that the termination was a breach of contract.  In relation to the second argument his Honour held that there was nothing to suggest that Sanel intended that its employment relationship with Mr Siagian would continue until the date to which payment of notice was made, and that the payment did not extend his employment until 15 April.  The decision of the Full Court of the Federal Court in Coles v Milford is not authority for the proposition advanced by the Appellant in appeal ground 7. That case deals with the authority of the Commission to determine if, and when, an employee has been dismissed for the purposes of dealing with a general protections application involving dismissal. 

1. It is true that s. 117(1) of the FW Act stipulates that an employer must not terminate the employment of an employee unless the time between giving notice of termination and the day of termination is at least the minimum period of notice specified in s. 117(2) or the employer has paid the employee the full rate of pay for the hours the employee would have worked had the employment continued during the notice period. However, as a Full Bench of the Commission said in Clarke v Uniti Group Ltd[69], a dismissal, which is principally concerned with the ending of an employment relationship governed by the contract of employment, may be effective, even though notice of termination (or payment in lieu) does not comply with s.117 of the Act. In the present case, while the fact that the Respondent did not pay the Appellant her full entitlements on termination until 18 November 2024 may have been a breach of the FW Act, it did not extend the date on which her employment ended. To the extent that advice on the Fair Work Ombudsman’s website appears to indicate to the contrary, the Appellant does not assert that she was aware of that advice when she filed her unfair dismissal application and was confused by it. In this regard we also note that the FWO advice appears to be in the context of circumstances where an employee works through part of the notice period and is paid out for the duration. It is also the case that, on the evidence produced by the Respondent following the hearing of the appeal, the amount that was paid on 18 November 2024, likely represented payment for work prior to the dismissal, and notice and accrued entitlements were paid in the first tranche, so that a breach of s. 117 may not have occurred and the full amount of notice was paid at the earlier date. We reject appeal ground 7.

Conclusion

1. We have upheld appeal grounds 2 and 6 on the basis that the approach to considering evidence going to capacity of the Appellant to file her application within the 21-day period required by s. 394(2), resulted in the Commissioner erroneously confining his consideration to events and circumstances in the period between the dismissal and the date the Appellant filed her unfair dismissal application. As a result, the Commissioner did not take relevant evidence with respect to the Appellant’s mental health issues and homelessness into account, either individually or cumulatively, in deciding whether the explanation provided by the Appellant for the delay was reasonable, and in the overall assessment of whether there are exceptional circumstances justifying the exercise of discretion to extend time for making the application. We are also of the view that the Commissioner’s assessment of the impact of the Appellant’s homelessness, by reference to her annual income, appears to have involved a significant error of fact, on the basis that the Appellant was on unpaid leave for a period of three and a-half months prior to her dismissal. We cannot exclude the probability that this factual error had an impact on the failure to consider that the Appellant’s homelessness was an exceptional circumstance. As a result of the erroneous approach and the error of fact, the Commissioner found that the Appellant had not provided a reasonable explanation for the delay in filing her application, and that this weighed against the exercise of his discretion to extend time. Given the Commissioner found that all other matters for consideration were neutral, the finding with respect to s. 394(3)(a) was determinative of the refusal to extend time and vitiated the outcome of the application to extend time.

1. We have decided to exercise our discretion pursuant to s. 604(a) and (b) to vary the Commissioner’s decision with respect to the conclusion in relation to s. 394(3)(a) and the overall conclusion in paragraphs [56] and [57], to redetermine the question of whether there are exceptional circumstances weighing in favour of an extension of time. We adopt the Commissioner’s findings at [43] – [55] to the effect that the matters in s. 394(3)(b) – (f) are neutral matters, noting that there are cases establishing that mental health issues and homelessness provide reasonable explanation for delay in lodging applications, and a finding to that effect in this appeal does not raise issues of fairness as between the Appellant and other persons in similar positions.

1. In relation to s. 394(3)(a) we vary the decision and find, for the reasons set out above in paragraphs [38] – [54], that the Appellant’s circumstances prior to her dismissal, and up to and including the date she filed her unfair dismissal application, involving significant mental health issues and homelessness (which in our view is of itself an exceptional circumstance) provide a reasonable explanation for the delay in making her unfair dismissal application. We are therefore satisfied that the discretion in s. 394(3) to extend time for the Appellant to make her unfair dismissal application is triggered, and that we should exercise the discretion to extend time for the Appellant to make her unfair dismissal application to 9 December 2024.

1. In deciding this appeal, we note that the Appellant’s mental health challenges impacted the presentation of her case at first instance and resulted in the Commissioner being provided with little assistance to navigate the lengthy, repetitive and irrelevant material the Appellant filed.  In our view, this significantly contributed to the approach the Commissioner took in attempting to confine the Appellant’s case to material that was relevant, and that the email of 3 March 2025 sent from the Commissioner’s Chambers should be viewed in this light.  It is also the case that the appeal exposed issues which while contained in the material the Appellant filed at first instance, were obscured by the way the material was presented.

Orders

1. We make the following orders:

   1.   Permission to appeal is granted.

   2.   The appeal is upheld with respect to grounds 2 and 6. 

   3.   The Decision in Wales v Thejo Australia Pty Ltd [2025] FWC 778 is varied in relation to the finding with respect to s. 394(3)(a) at paragraphs [41] – [42] of the Decision to reflect that the Appellant provided a reasonable explanation for the delay in filing her unfair dismissal application and that this weighs in favour of an extension being granted.

   4. On a redetermination we decide that there are exceptional circumstances justifying us exercising the discretion in s. 394(3) to extend the time for filing the application in U2024/14747 and vary paragraph [56] of the Decision accordingly.

   5.   The Order in Wales v Thejo Australia Pty Ltd is quashed.

   6. We extend the period of time for making the application in U2024/14747 to be made by 9 December 2024, pursuant to s. 394(3) of the FW Act, and issue an order to that effect with this decision.

   7.   The application be remitted to the Regional Coordinator for Region One for allocation to another Member of the Commission to conduct a conciliation conference in accordance with s. 398 of the Act. 

VICE PRESIDENT

Appearances:

O Wales, the Appellant on her own behalf.

I Bennett of Sparke Helmore Lawyers with permission, with K Carradus on behalf of the Respondent.

Hearing details:

Sydney (Video using Microsoft Teams)
2025
17 June

[1] [2025] FWC 778.

[2] Applying Siagian v Sanel Pty Ltd (2011) 203 IR 1.

[3] Transcript, PN72.

[4] Comparing Palmer v RCR Engineering Pty Ltd [2019] FWA 1431.

[5] Decision at [37].

[6] Decision at [24].

[7] Decision at [37].

[8] Decision at [40].

[9] Decision at [38].

[10] [1985] HCA 81.

[11] Email from the Chambers of Commissioner Simpson to Ms Olivia Wales dated 3 March 2025 sent at 9:38AM.

[12] Appeal Book p. 136.

[13] Appeal Book pp. 138 – 139.

[14] Appeal Book p. 131.

[15] Appeal Book p. 126.

[16] Appeal Book p. 124.

[17] Appeal Book p. 97.

[18] Appeal Book p. 125.

[19] Appeal Book p. 134.

[20] Transcript of primary hearing, PN79 – PN80.

[21] Transcript of appeal PN380.

[22] Form F7, page 85.

[23] Form F7, page 86.

[24] Form F7, page 86 and 88.

[25] Form F7, page 90.

[26] Form F7, page 33.

[27] Transcript PN49.

[28] (2011) 203 IR 1.

[29] Gleeson v Aurora Energy[2010] FWA 2956; Maree Skinner v Perth Racing[2018] FWC 5968.

[30] [2009] FWA 1431.

[31] [2018] FWC 4432.

[32] (2011) 203 IR 1.

[33] Form F7, p 26.

[34] (1994) 122 ALR 333.

[35] [2020] FCAFC 152.

[36] Fair Work Ombudsman, ‘Notices and final pay’, 2025 ( (2011) 203 IR 1.

[38] Respondent’s written submissions in the appeal paragraph 37.

[39] Transcript of appeal PN408 – 410.

[40]  This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and

Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[41] Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], per Buchanan J (with whom Marshall and Cowdroy JJ agreed).

[42] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch

(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services

Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].

[43] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].

[44]  Wan v AIRC (2001) 116 FCR 481 at [30].

[45] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28],

202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar

Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014]

FWCFB1663, 241 IR 177 at [28].

[46] Gelagotis v Esso Australia Pty Ltd [20181 FWCFB 6092 [43].

[47] [2025] FWCFB 15.

[48] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [19] – [20] and [28]; Moore (a pseudonym) v The King [2024] HCA 30 at [15].

[49] Schneider v Apollo Motorhome Holidays Pty Ltd [2015] FWCFB 1259 at [13].

[50] (1936) 55 CLR 499 at 505.

[51]  Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

[52] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR at 24.

[53] Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167.

[54] Stogiannides v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901.

[55] [2018] FWCFB 901.

[56] Ibid at [40].

[57] Ibid at [42].

[58] Ibid at [44].

[59] Ibid at [41].

[60] Decision at paragraph [40].

[61] Transcript PN80.

[62] Transcript PN48 – PN55.

[63] Appeal Book page 15, 19, 20, 21, 31, 35, 37, 38, 80, 84, 86, 87, 174, 178, 180, 181. (Court Book from first instance hearing page 4, 8, 9, 10, 20, 24, 26, 27, 69, 73, 75, 76, 163, 167, 169, 170).

[64] PN56 – 57.

[65] Decision at [23], [38] and [40].

[66] Ibid at [40].

[67] (1997) 140 IR 1.

[68] (1994) 122 ALR 333.

[69] [2023] FWCFB 133.

Printed by authority of the Commonwealth Government Printer

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