Sara Mansour v Serco Pty Ltd - [2025] FWC 805

[2025] FWC 805

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sara Mansour
v

Serco Pty Ltd

(U2024/14890)

COMMISSIONER CRAWFORD

SYDNEY, 21 MARCH 2025

Unfair dismissal application filed out of time – application filed over seven years late – no exceptional circumstances – extension of time not granted – application dismissed

Background

Sara Mansour commenced full-time employment with Serco Pty Ltd (Serco) on around 1 October 2009. Ms Mansour was employed as a Detention (Client) Services Officer at Villawood Immigration Centre. In December 2013 Ms Mansour was attacked by a detainee she was transporting from Sydney Police Station to the Villawood facility. The attack led to Ms Mansour suffering Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder. Ms Mansour returned to work after the incident in 2014, but her condition worsened and Ms Mansour was deemed unfit for work from May 2014. Serco terminated Ms Mansour’s employment effective 23 May 2017 on the basis that Ms Mansour had abandoned her employment. The termination letter states Ms Mansour had not responded to Serco’s letters dated 21 March 2017 and 3 April 2017 which sought information from Ms Mansour about her condition and confirmation as to whether she would be returning to her role. Ms Mansour filed an unfair dismissal application with the Commission on 10 December 2024. That was around seven-and-a-half years after the 21-day filing period for an unfair dismissal application ended on 13 June 2017. As a result, Ms Mansour requires an extension of time to file the unfair dismissal application. This decision concerns whether an extension of time should be granted pursuant to s.394(3) of the Fair Work Act 2009 (FW Act).

I issued directions for the filing of material and listed a hearing in relation to the extension of time issue for 19 March 2025 via video. Ms Mansour represented herself at the hearing. Serco was represented by Jane Murray (Legal Director, Employment).

Material filed

Ms Mansour

Ms Mansour provided submissions dated 5 February 2025. The submissions contain evidence from Ms Mansour about her dismissal and why she missed the 21-day filing period. In terms of the reason for the delay, Ms Mansour refers to Serco’s lack of communication with her prior to her dismissal. Ms Mansour also refers to suffering from PTSD and other psychological issues prior to, and since, her dismissal on 23 May 2017. Ms Mansour refers to her father being diagnosed with a serious illness in 2017 which led to his death in 2019. Ms Mansour states dealing with this tragedy led to her condition worsening. Ms Mansour refers to trying to resolve her underpayment issues directly with Serco. Ms Mansour states she only became aware of the dismissal when she returned to Australia months after the dismissal had taken effect. Ms Mansour states her application has merit because she was an exemplary employee, and that she did not abandon her employment.

Ms Mansour provided further submissions filed 27 February 2025. The submissions contain…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Sara Mansour v Serco Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] FWC 805
Decision Date: 21 MARCH 2025

CaseChat Overview and Summary

Sara Mansour commenced proceedings against Serco Pty Ltd in the Fair Work Commission, alleging unfair dismissal. Ms Mansour commenced full-time employment with Serco on around 1 October 2009 as a Detention (Client) Services Officer at Villawood Immigration Centre. In December 2013, Ms Mansour was attacked by a detainee she was transporting from Sydney Police Station to the Villawood facility. The attack led to Ms Mansour suffering Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder. Ms Mansour returned to work after the incident in 2014, but her condition worsened, and Ms Mansour was deemed unfit for work from May 2014. Serco terminated Ms Mansour’s employment effective 23 May 2017 on the basis that Ms Mansour had abandoned her employment. Ms Mansour filed an unfair dismissal application with the Commission on 10 December 2024, which was around seven-and-a-half years after the 21-day filing period for an unfair dismissal application ended on 13 June 2017. Ms Mansour required an extension of time to file the unfair dismissal application. The court was required to decide whether Ms Mansour had established exceptional circumstances under s.394(3) of the Fair Work Act 2009 (FW Act) which would warrant an extension of time for filing her unfair dismissal application. The court considered various factors, including the reason for the delay, whether Ms Mansour first became aware of the dismissal after it had taken effect, any action taken by Ms Mansour to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between Ms Mansour and other persons in a similar position. The court found that Ms Mansour had a satisfactory explanation for the delay from 13 June 2017 to 22 June 2017, because she was not aware of the dismissal during that period. However, the court did not consider Ms Mansour had a satisfactory explanation for the delay in filing her application from 22 June 2017 to 10 December 2024. The court found that Ms Mansour's actions taken to dispute the dismissal weighed in favour of a finding of exceptional circumstances. However, the court also found that prejudice to Serco weighed against a finding of exceptional circumstances. The court found the merits of the application to be a neutral factor. The court found fairness to be a neutral factor. The court concluded that Ms Mansour had not cleared the “high hurdle” of establishing exceptional circumstances. The court declined to grant an extension of time for the filing of the application. The application was dismissed. The court encouraged Serco to communicate directly with Ms Mansour to try and resolve her dispute about long service leave and any other payments she alleges were payable on termination of her employment.

Orders