Trudy Lamont v North Coast Cabinets Pty Ltd - [2025] FWC 2765

[2025] FWC 2765

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Trudy Lamont
v

North Coast Cabinets Pty Ltd

(U2025/12463)

DEPUTY PRESIDENT GRAYSON

SYDNEY, 16 SEPTEMBER 2025

Application for an unfair dismissal remedy

Unfair dismissal application filed out of time –circumstances exceptional –extension of time granted

Ms Lamont has made an application to the Commission for a remedy for unfair dismissal (Application) pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms Lamont was summarily dismissed for serious misconduct on 8 July 2025 while on ‘stress leave’. She filed the Application on 1 August 2025 and, accordingly, it was filed outside of the 21-day statutory time limit for filing an application of this sort. As a result, a jurisdictional objection has been raised by the Respondent that the application was filed out of time and that there are no exceptional circumstances that would warrant an extension of time being granted by the Commission.

Ms Lamont was employed by North Coast Cabinets Pty Ltd (Respondent) for approximately nine years prior to her dismissal on 8 July 2025. The Applicant is separated from Mr Lamont, the Managing Director of the Respondent. The dismissal occurs within the backdrop of a marriage breakdown between the Applicant and Mr Lamont.

Ms Lamont contends that she was unfairly dismissed. She argues that her dismissal was as a result of the relationship breakdown with Mr Lamont and in retaliation for her ending the relationship, obtaining an Apprehended Domestic Violence Order (ADVO) and taking sick leave and domestic violence leave. She submits that she had been effectively performing her role, post the relationship ending, by performing her duties in a hybrid style remote working arrangement. She also argues that her dismissal was invalid as Mr Lamont had no authority to dismiss her as she and Mr Lamont were equal owners of the Respondent, were equal in status in the workplace and did not report to each other.

The Respondent submits that Ms Lamont was dismissed for serious misconduct, that it is a small business and complied with the Small Business Fair Dismissal Code (Code) and that Ms. Lamont’s annual rate of earnings was not less than the high-income threshold. Other than as set out below, these are matters that will need to be considered by the Commission should I determine to extend the time for Ms. Lamont to file the Application.

In order for Ms Lamont’s application to be accepted by the Commission I will need to consider whether exceptional circumstances exist under s.394(3) of the Act that would warrant Ms Lamont being granted further time to file her application.

Hearing

The Respondent sought permission to be legally represented in these proceedings pursuant to s 596 of the Act. Ms Lamont opposed the grant of permission. Having considered the submissions of both parties I determined that allowing the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. I decided to exercise my discretion to grant permission for the Respondent to be represented. I issued written reasons for this decision via email on 3 September 2025.

On 4 September 2025, I conducted a hearing in relation to Ms Lamont’s application for an extension of time. Ms Lamont relied on numerous documents and her own statement. She also gave evidence at the hearing. The Respondent relied on a statement of Mr Benjamin Lamont, Managing Director of the Respondent. Both Ms Lamont and Mr Lamont were required for cross-examination. All parties made submissions on the extension of time application.

The Respondent urged me to make adverse credit findings regarding Ms Lamont on the basis that Ms Lamont was not forthcoming whilst giving evidence, failed to answer straightforward questions and failed to concede that she had instructed a solicitor to correspond with the Respondent regarding reinstatement. I decline to make any such finding. I found Ms Lamont to be a reliable witness of credit. Ms Lamont came across as honest and frank when giving her evidence. I make this finding based on her demeanor and what she said whilst giving evidence including appropriate concessions that she made under cross examination. I do not consider that her evidence regarding instructions that she had given to her family law solicitor and her knowledge (or lack thereof) of the statutory timeframe for filing an unfair dismissal claim gave rise to any adverse finding regarding her credit as a witness.

Are there exceptional circumstances?

Ms Lamont accepts that her employment with the Respondent ended on 8 July 2025. The statutory period for the filing of an application ended at midnight on 29 July 2025.[1] Ms Lamont lodged the Application in the Commission on 1 August 2025. The application was therefore filed 3 days outside the 21-day period stipulated by s.394(2) of the Act.

The Act describes the circumstances in which the Commission may grant an extension of time in s.394(3) as follows:
(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.”

Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[2] Exceptional circumstances may 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 can be considered exceptional.[3]

The requirement that these matters be taken into account means that I must consider each matter and give it appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters.

The reason for the delay

The Commission must consider any delay in filing being the period commencing immediately after the 21-day period specified in s.394(2) until 1 August 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4] As recently stated by the Full Bench in Olivia Wales v Thejo Australia Pty Ltd,[5]
“Events or circumstances leading up to the dismissal or occurring within the 21 days after the dismissal may continue to affect the Applicant into the period of delay, and should not be disregarded in determining whether exceptional circumstances are present. Those circumstances or events should not be disregarded in deciding whether there are exceptional circumstances, simply because of when they occurred.”[6]
The reason for the delay is not, in and of itself, required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[7] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where an applicant has not provided any reason for any part of the delay.[8]

Ms Lamont’s Evidence and Submissions

Ms Lamont’s evidence was that she had been married to Mr Lamont for over twenty years. The relationship between Ms Lamont and Mr Lamont had deteriorated in the months leading up to the dismissal after Ms Lamont sought to separate from Mr Lamont in March 2025. Ms Lamont’s evidence was that Mr Lamont’s behaviour towards Ms Lamont regarding work-related matters had deteriorated from in or around April 2025.
On 19 June 2025, the NSW Police took out an Apprehended Domestic Violence Order (ADVO) against Mr Lamont on Ms Lamont’s behalf. A final 12-month ADVO was formalised on 24 July 2025. Ms Lamont’s evidence was that Mr Lamont’s treatment of Ms Lamont deteriorated further after 19 June 2025.
Ms Lamont was on sick leave with no capacity to work from 5 June 2025. Medical certificates were provided to the Respondent corroborating Ms. Lamont’s state of health. On 16 June 2025 Ms Lamont’s treating medical practitioner certified that she would be unfit to work until 31 July 2025 inclusive due to “stress leave”. On 3 July 2025 Ms Lamont was provided with a Certificate of Capacity/Certificate of Fitness relating to workers compensation which provided that Ms Lamont had no capacity to work from 16 June 2025 to 31 July 2025 and identified that she had adjustment disorder with features of anxiety. According to Ms Lamont’s evidence, this was provided to the Respondent “prior to the disciplinary meeting date, by a few days.”
Ms Lamont argued that her health was so impacted in the lead up to the dismissal, and following it, that this negatively impacted on her ability to understand and comply with the statutory deadline for filing the Application.[9] Ms Lamont argues that in the lead up to her dismissal and following her dismissal that she was undergoing a “period of particularly high stress which impacted her ability to engage” with her potential dismissal and then the dismissal.[10]
Evidence filed by Ms Lamont demonstrates that she applied for domestic violence leave for the following days and reasons:
a)Friday 13th June 2025 - attendance with Lismore Police Station for statements concerning domestic violence;
b)Monday 16th June 2025 - accessing DV support services (2);
c)Tuesday 17th June 2025 - re-attend Lismore Police station regarding DV and AVO;
d)Thursday 19th June 2025 - attend Casino Local Court for Apprehended Domestic Violence Order mention, and access DV support services and counselling.
Ms Lamont’s evidence was that, between the date of the interim ADVO on 19 June 2025 and the final ADVO on 24 July 2025 she was dealing with various legal meetings, counselling appointments, and urgent appointments with domestic violence support services, in addition to attempting to manage her stress-related illness, for which medical certificates and a certificate of capacity/certificate of fitness had been issued.[11] These certificates confirmed that Ms Lamont was unfit for work from 10 June 2025 to 31 July 2025, and had no capacity for any work from 16 June 2025 to 31 July 2025. She submits that these matters and her ill-health took the majority of her attention and focus at this time and did not provide her with the ability to adequately focus on the Respondent’s disciplinary procedures between 25 June 2025 and 8 July 2025 and attending to the Application after the date of the dismissal.[12]
Ms Lamont also gave evidence at hearing that she was attending to various matters from 19 June to 24 July 2025, which required her extensive and ongoing engagement. Ms Lamont gave evidence that some of these were ongoing after 24 July 2025, including during the period of the delay. The scale and seriousness of these matters made her “…brain not really of the ability to process very much at all at the moment,” and she was in a state of post-traumatic stress in respect of these matters. Ms Lamont gave evidence that the matters that she was dealing with from 19 June 2025 included:
·    Preparing for an Apprehended Domestic Violence Order hearing scheduled for 24 July 2025;
·    Attending associated counselling and support services appointments;
·    Referrals for legal and financial assistance because of these support services appointments, including to Redfern Legal Centre and the Working Women’s Centre;
·    Ongoing psychologist and general practitioner appointments;
·    Banking enquiries regarding accounts where her access had been removed and dealing with ongoing payment obligations including mortgages and bills;
·    Discussions with the Australian Securities and Investments Commission (ASIC) regarding her removal as company office holder of the Respondent;
·    Loss of income;
·    Threats that the police were coming to take her vehicle;
·    The confiscation of her personal laptop; and
·    Attending meetings with her family law solicitor which involved dealing with valuing family assets, considerations of financial abuse, removal of Ms Lamont’s financial privileges, including from ASIC registers and mediation between the parties.
Ms Lamont also argues that she filed the Application late as a result of receiving incorrect legal advice. Her evidence is that she forwarded the letter dismissing her to her family law solicitor who arranged an appointment with another solicitor in the same firm with relevant expertise. This appointment was a phone appointment which occurred on 9 July 2025. Ms Lamont’s evidence was that the solicitor gave her advice which included the following “You have twenty-eight days from the date of termination still to lodge an application, so you have plenty of time to think it over.” Ms Lamont filed evidence to demonstrate that this call had occurred including excerpts from her electronic calendar, a screenshot of a corresponding phone attendance and a file note that she took on the day which recorded that there was “28 days to file an application unfair dismissal/adverse action”. Ms Lamont did not name the solicitor in these proceedings and instead gave evidence that the solicitor was based in the same firm as her family law solicitor, and that she had engaged the law firm as a whole for assistance in her family law matter. Her evidence was that her family law solicitor did not provide employment law advice but would refer Ms Lamont for that advice to the solicitor colleague that Ms Lamont originally had the 9 July phone call with. Her evidence was that she had refrained from naming them in circumstances where she had made no formal complaint regarding their advice and did not consider naming them in these proceedings to be appropriate.
Following receipt of this advice, Ms Lamont commenced working on the Application on 1 August 2025. Her evidence was as follows:
“On Friday 1^st August 2025, I had my first real opportunity of a day when I was feeling slightly better able to draft this application, owing to my ongoing stress-related illness and associated ADVO and DV matters. This was the first day that I had logged into the Fair Work Commission website and read about commencing the Application for Unfair Dismissal for myself, believing that I still had four days with which to draft, complete and file my Application. That day was the first time that I become aware that the time limit was twenty-one days, not twenty-eight days. I immediately lodged the Application on that day so that it could be lodged at the earliest opportunity.”[13]
In response to evidence from Mr Lamont that Ms Lamont had previously been a solicitor Ms Lamont gave evidence that she has not worked as a solicitor in a firm or in private practice since commencing with the Respondent approximately ten years ago, however noted that she had completed “the odd debt collection matter” for the Respondent as well as completing two deceased estates for family members and two conveyancing matters in a personal capacity. She confirmed that prior to commencing with the Respondent she had worked as an in-house lawyer for a university, however, she gave evidence that she did not complete any Human Resources related work during that time. Her further evidence was that she accepted the advice that she was given on 9 July 2025 regarding the statutory timeframe as this aligned with other jurisdictions in which she had previously practiced. Ms Lamont said that she was not aware until after filing the Application, when she was referred via the Redfern Legal Centre for a free legal consultation about her dismissal, that representative error was a relevant reason to establish delay and so had not included it in the Application. In any event, the prompts on the Commission’s website were that she could provide additional detail later and she thought it best to file the application urgently once she became aware that it was out of time.
In response to evidence from Mr Lamont that Ms Lamont had previously handled an application for unfair dismissal remedy on behalf of the Respondent, Ms Lamont gave evidence that she simply provided the initiating application to a solicitor with expertise in employment law and requested that they act for the Respondent. Ms Lamont confirmed that she did not thoroughly read the initiating application documents, aside from the Applicant’s statement, and did not note the timelines of the Fair Work Commission’s applications given that it was filed very promptly after the dismissal took effect.

The Respondent’s Evidence and Submissions

Mr Lamont gave evidence that Ms Lamont used to be a family law and contracts solicitor and that she would help the Respondent with some legal matters, as they arose. This included instructing a solicitor to represent the Respondent in an unfair dismissal claim lodged in 2023.[14]
Mr Lamont’s evidence was that Ms Lamont made a request for an interim ADVO in or around mid-June 2025. After court proceedings on 24 July 2025, Mr Lamont accepted the ADVO with no admissions or conditions and it was set for 12 months.[15]
In June 2025, Ms Lamont also made a workers compensation claim for a psychosocial injury, with the certificate of capacity confirming that Ms Lamont did not have the capacity to work between 16 June 2025 and 31 July 2025.[16]
Mr Lamont gave evidence that, on 8 July 2025 Ms Lamont was summarily dismissed by the Respondent on account of serious misconduct including various financial misconduct issues such as inflating her leave balance, overtime hours and entitlements, transferring company funds into a personal account, taking unauthorized possession of company assets and using a company debit card for personal purchases.
On 17 July 2025, Ms Lamont’s solicitor requested reinstatement of her employment with the Respondent, as well as raising other family law and business-related matters. On 25 July 2025, Mr Lamont’s solicitor wrote to Ms Lamont and confirmed that the Respondent was not prepared to reinstate her employment due to the serious misconduct alleged. Ms Lamont also sent Mr Lamont an email on 31 July 2025 demanding her job back and threatening legal action.[17] The Respondent responded to this correspondence the same day confirming that Ms Lamont’s employment had been terminated following a formal disciplinary investigation and that the Respondent had given reasonable periods and attempts for a response to be filed before proceeding with any action. This correspondence did not expressly reject Ms Lamont’s request to be reinstated and largely made allegations about Ms Lamont’s conduct following the termination of her employment.
The Respondent submits that Ms Lamont has failed to establish a nexus between her illness and her alleged inability to file on time, as demonstrated by her failure to provide any descriptive reports from her treatment team or evidence as to how each day she was unable to file the Application due to the impact of her illness. The Respondent also submits that the evidence demonstrates that Ms Lamont was capable of engaging in dealings relating to her employment after she was dismissed, including seeking advice from her family law solicitor and providing them with instructions to seek reinstatement.[18] The Respondent relies on the decision of Commissioner Hunt in Mr Lesly Tilley v Global Sandstone Industries Pty Ltd[19] in support of this submission.
The Respondent also submits that Ms Lamont’s claims of representative error, and her reliance on advice from a solicitor not experienced in the practice area, who was not acting in the capacity to provide advice in relation to employment matters, are not exceptional circumstances for the purposes of an extension of time being granted.[20] The Respondent says that Ms Lamont’s evidence on this should not be accepted given it is clear that Ms Lamont’s family law solicitor was seeking reinstatement and threatening legal proceedings. It also relies on the fact that representative error was not raised in the Application as a reason for her late filing to throw doubt on Ms Lamont’s claim that this was a reason for her delay.[21]

In relation to Ms Lamont’s evidence that she had sought advice from a solicitor on 9 July 2025, the Respondent submits that the file-note that Ms Lamont filed after the hearing, which recorded her notes of the 9 July advice, should be given no weight as it was not filed in accordance with the directions issued by the Commission in this matter. It also says that Ms Lamont’s failure to call the solicitor from whom she obtained advice to give evidence should lead the Commission, in accordance with the principles in Jones v Dunkel,[22] to conclude that the evidence that would have been given by the solicitor would not have supported Ms Lamont’s evidence that she received incorrect advice.
The Respondent also submits that Ms Lamont’s previous experience in the unfair dismissal claim lodged against the Respondent in 2023 and receipt of advice in relation to that claim from an experienced solicitor makes it highly unlikely that Ms Lamont was unaware of the 21-day deadline to lodge an unfair dismissal application in the Fair Work Commission.[23]

Consideration- Reasons for the Delay

This is not a matter where consideration of the reasons for the 3-day delay in filing the Application can be divorced from events that occurred during and, to some extent preceding, the 21-day post dismissal period. Ms Lamont gave evidence that part of the reason for her delay was as a result of her state of health and her needing to access various legal meetings, counselling and accessing domestic violence support services associated with the ADVO processes post her dismissal. The ADVO was taken out by a member of the NSW Police Force on 19 June 2025. Both the interim and final ADVO were tendered into evidence. In addition, documents demonstrating that Ms Lamont had accessed support services in June were tendered. It was uncontested that Mr Lamont had originally indicated to Ms Lamont that he would contest the final ADVO at a hearing on 24 July. Ms Lamont’s evidence was that this necessitated her collating evidence from various applications, emails, text messages, recorded conversations and compiling this documentation and evidence to prepare for this hearing. However, on 24 July 2025 Mr Lamont accepted the ADVO with no admissions or conditions.
Various documents tendered by Ms Lamont demonstrate that she was unfit to work from 10 June 2025 to 31 July 2025. A workers compensation certificate dated 3 July 2025 stated that Ms Lamont had no current capacity for any work from 16 June 2025 to 31 July 2025 as a result of a diagnosis of adjustment disorder with features of anxiety. Ms Lamont gave evidence that the effects on her health of the intensity and sheer number of actions being directed at her, including services abuse, systems abuse and financial abuse and feeling under attack resulted in her feeling like she was in a state of “post-traumatic stress” or “shell shocked” following these events and her subsequent dismissal. I accept that Ms Lamont’s mental health was severely affected during the period 30 July to 1 August 2025.
The Respondent submits that Ms Lamont was cognitively able to engage with various third parties during the period post her dismissal and until she filed her application, including her doctors, counsellors, police, domestic violence support services and her family law solicitors. I accept that this was the case. However, her evidence on engagement with her family law solicitors included that she followed the advice of these professionals and that she was not in a state of mind to be formulating how to proceed in these matters, including drafting letters. She also gave evidence, which I accept, to the effect that she did not feel she had the capacity to process much at all.
I consider that the circumstances prior to filing are relevant to considering Ms Lamont’s three-day delay. Ms Lamont was engaging with numerous third parties following the relationship breakdown with her husband and business partner. This required a focus on family law matters including Mr and Ms Lamont’s caring responsibilities and financial arrangements. In late June, the NSW Police arranged an interim ADVO which had provisions imposed on Mr Lamont regarding Ms Lamont and the couple’s two children. This had the effect that Ms Lamont was engaged in Court processes (at least until 24 July 2025) when the final order was made, accessing support services, attending weekly counselling sessions and approximately fortnightly appointments with her treating medical practitioner.
Further, exchanges between the legal representatives regarding some of these matters continued during most of the 21-day post dismissal period. During this period, the Respondent communicated to Ms Lamont that she was required to return all company property within 24 hours including the vehicle that was owned by the company and used by her for personal use. The Respondent noted that it reserved the right to refer the matter to the police if the property was not returned. Ms Lamont continued to communicate with the Respondent directly seeking reinstatement on 31 July 2025 after the date that she should have filed the Application.
Whilst I accept that the formal court processes were done by 24 July 2025, I accept Ms Lamont’s evidence that her health remained compromised after this date and until the date of filing the Application as a consequence of dealing with these matters. Ms Lamont’s evidence was that she continued to attend weekly counselling sessions and fortnightly consultations with her general practitioner in the lead up to and following her dismissal, including during the period of the delay in filing the Application.
The Respondent relies on the decision in Mr Lesley Tilley v Global Sandstone Industries Pty Ltd (Tilley),[24] to argue that Ms Lamont has failed to establish a nexus between her illness and her alleged inability to file on time, as demonstrated by her failure to provide any descriptive reports from her treatment team or evidence as to how each day (my emphasis added) she was unable to file the Application due to the impact of her illness. Firstly, the decision in Tilley is a decision of a single member of the Commission, and I am not obliged to follow it. Secondly, I do not accept that an Applicant has to be totally incapacitated for the 21-day period following the dismissal and/or any subsequent days until filing their application in order for their significantly compromised health to be considered to be an exceptional circumstance. In any event, Ms Lamont has filed medical evidence that the was unfit for work due to a diagnosed mental illness until 31 July 2025. I accept that her health was significantly compromised during the 21-day period post her dismissal and that this was ongoing until 1 August 2025. Ms Lamont was not just experiencing distress or shock as a result of her dismissal. She had already been diagnosed with an illness that was sufficiently serious to incapacitate her for work until 31 July (the day before she filed the Application). Ms Lamont’s evidence was that she continued to experience debilitating symptoms ‘owing to her ongoing stress-related illness and associated ADVO and DV matters’ until she felt slightly better on 1 August.
In addition, Ms Lamont argued that one of the reasons for her three-day delay was that she obtained incorrect advice regarding the timeframe to file the Application. The Respondent submitted that I should treat Ms Lamont’s evidence that she was unaware of the statutory time limit for filing the Application with caution, given that she had previously been a solicitor and had engaged her family law representative to seek reinstatement with the Respondent. It also submitted that Ms Lamont had previously been involved in an unfair dismissal matter before the Commission and various other legal matters on the Respondent’s behalf during her employment. It noted that representative error had not been pleaded in the Application as filed by Ms Lamont on 1 August 2025 and only raised subsequently in the proceedings.
I am not persuaded by this submission. I accept Ms Lamont’s evidence that she had not practiced in employment law whilst a solicitor and had not been aware of the time limit for filing given her limited involvement in an unfair dismissal claim on behalf of the Respondent, which involved briefing a knowledgeable solicitor and attending a conciliation. As that application had been filed in time and shortly after the employee’s dismissal, it was not something that had been the subject of advice from the solicitor engaged by the Respondent. I consider that this conclusion is supported by the fact that Ms Lamont wrote to the Respondent seeking reinstatement on 31 July. Why would she do this if she was aware of the statutory deadline and that it had passed?
The Respondent relies on the decision in Eunson v Eworks Employment Solutions,[25] to argue that the Applicant relied on last minute advice from a solicitor who was not formally engaged to provide advice in relation to employment matters, and that these circumstances and the Applicant’s ignorance of the law in relation to the 21-day time to file were not exceptional circumstances. Firstly, I note that the decision is a decision of a single member of the Commission, and I am not obliged to follow it. Secondly, in my view, the decision in Eunson is distinguishable, as Ms Lamont gave evidence that she sought advice almost immediately after being dismissed, from a solicitor who was experienced in employment law and engaged in the same retained firm as Ms Lamont’s family law solicitor. Ms Lamont’s evidence was that whilst her family law solicitor did correspond with Mr Lamont’s solicitor seeking reinstatement (amongst other matters largely relating to family law issues), her family law solicitor did not provide employment law advice but would refer Ms Lamont to her solicitor colleague from the same retained firm for that advice, being the solicitor that Ms Lamont had had a consultation with on 9 July.
I accept Ms Lamont’s evidence that she received incorrect advice that she had 28 days to file an unfair dismissal application. Ms Lamont sought that advice swiftly after being dismissed by the Respondent on 8 July 2025 and received it the very next day, on 9 July 2025. When she commenced preparing her application on 1 August 2025, she identified that the advice that she had been given was incorrect. Having identified the incorrect nature of the advice, Ms Lamont moved to file her application the very same day. I accept her evidence that she did not include representative error as one of the reasons for her application being delayed, as she was rushing to get the application filed once she became aware of the statutory deadline, as the form said that she could add further detail later and as she only got advice that incorrect legal advice was relevant after she filed the Application.
The Respondent submits that a Jones v Dunkel inference should be drawn in relation to Ms Lamont’s failure to call evidence from the solicitor who gave her the advice that there was a 28-day time limit for filing the Application.
As said by O’Loughlin J in Cubillo v Commonwealth,[26] at [355]:
“In Cross on Evidence, Butterworths, [4^th Ed] D Byrne, JD Heydon, vol 1 at [1215] it is said:
[t]he rule [in Jones v Dunkel] only applies where a party is ‘required to explain or contradict’ something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case. No inference can be drawn unless evidence is given of facts ‘requiring an answer’.” (footnotes omitted)
That passage from Cross on Evidence was quoted with approval in the joint judgment of Gleeson CJ and McHugh J in Schillenberg v Tunnell Holdings Pty Ltd [2000] HCA 18; [2000] 170 ALR 594 at 608-609.”[27]
Further, the rule in Jones v Dunkel does not operate to require a party to give merely cumulative evidence.[28]
Ms Lamont provided an explanation for her decision not to call the solicitor as a witness as outlined above at [22] which I accept. Further, Ms Lamont has already given evidence about this issue and provided documents that corroborate her recollections of that meeting. As a result, I have had a proper opportunity to assess the credibility and reliability of the evidence that she has given and have found her to be a reliable witness. Further, whilst she was cross-examined about such matters as her interactions with her retained law firm, her knowledge of the deadline for filing as a result of previous experience and whether she took steps to confirm the advice provided by the employment law solicitor it was not put to Ms Lamont that she was lying about or misremembering the advice provided in the 9 July meeting. Understandably, no contradictory evidence was called by the Respondent regarding this meeting. As confirmed by the Full Bench of the AIRC in C. Tamayo v Alsco Linen Service Pty Ltd,[29] the Jones v Dunkel rule provides that an inference may be drawn in certain circumstances, not that such an inference must be drawn (emphasis added).[30] Given these matters, I decline to draw an adverse inference from Ms Lamont’s decision not to call the solicitor.
In McConnell v A & PM Fornataro,[31] a Full Bench of the Commission considered an out of time application under s 365 of the Act. I consider the analysis of the majority to be relevant to the application before me. The majority, Senior Deputy President O’Callaghan and Commissioner Bissett, said the following:
“Even if representational error was accepted, we consider that the application of the approach set out in Clark Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarized by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:
(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”[32]
The Full Bench recently considered representative error in relation to an extension of time application in John Jordan v Multiplex Australasia Pty Ltd.[33] There it was held that in relying on representative error as an explanation for a delayed application being lodged, the Applicant’s conduct must be examined to determine if this contributed to the delay.[34] The Full Bench went on to say:
“The conduct of an applicant might have contributed to a delay in the filing of an unfair dismissal application notwithstanding that the delay was also contributed to by representative error. That might be the case if, for example, the applicant only consults the representative shortly before the expiry of the time limit, the applicant entrusts his or her application toa representative who is obviously unqualified or unwilling or unable to assist, the applicant fails to cooperate with the representative by providing the information or assistance necessary to prepare the application or the applicant leaves the application in the hands of his or her representative for an extended period without receiving any communication from the representative and without taking steps to ascertain the status of the application.
However, conduct of the Applicant can only be relevant for the purposes of s.394(3)(a) to the extent that it casts light on the reason for the delay in filing the application, or whether that reason represents an acceptable explanation for the delay.”[35]
The Commission has held on many occasions that mere ignorance of the statutory time limit is not an exceptional circumstance (in and of itself).[36] On the materials before the Commission, I find that Ms Lamont took steps to seek appropriate advice about her options to contest her dismissal within days of being dismissed. She then instructed her family law solicitor to seek reinstatement on her behalf. This was rejected. She did not sit on her hands and, instead, commenced to prepare the Application with reasonable time to spare before the date that she was told that she had to file it. When she realised that the Application had to be filed within 21 days she filed it immediately, shortly after the expiry of the statutory deadline. I consider that Ms Lamont’s receipt of poor advice provides a plausible explanation for the entirety of the delay in the filing of Ms Lamont’s unfair dismissal application.
I have considered that Ms Lamont could have accessed any number of publicly available resources in order to double check the advice that she had been given, in order to file the Application within the statutory timeframe. Some of the responsibility for the delay must lie with Ms Lamont. However, I consider it reasonable that she accepted the advice that she was given, especially given her personal circumstances and health during the relevant period. Her focus was on such matters as the ADVO related issues, family law matters, her financial situation and dealing with her compromised state of health. In these circumstances, I accept that to the extent that Ms Lamont contributed to the delay in filing by not completing additional due diligence once she received advice, that there is a reasonable explanation for that part of the delay that could be attributed to her. It is understandable that she did not seek a second opinion or further information until 1 August 2025.
On balance, I consider that the evidence of Ms Lamont supports a finding of ‘exceptional circumstances’. These matters are ‘out of the ordinary course, unusual, special, or uncommon’.[37]
The test invariably applied in these matters is whether an applicant has a ‘credible and reasonable’ explanation for the delay.[38] The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[39]
When considering this factor, I must consider the delay beyond the statutory period for making an application. This self-evidently does not include the period from the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period.[40] In Olivia Wales v Thejo Australia Pty Ltd,[41] the Full Bench explained the correct approach, stating:
“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.”[42]

The Full Bench went on to say, which is of particular relevance in this matter:
“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.”[43]
In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,[44] the Full Bench explained the correct approach by reference to the following example:
“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”[45]
Ms Lamont was suffering from a recognised psychiatric illness which her doctor had certified as incapacitating her for work until 31 July, the day before she filed the Application and she continued to be so unwell that she required fortnightly medical appointments and weekly counselling support in the period before and after the filed the delayed Application including during the period of the delay. This arose, on Ms Lamont’s evidence, from her ongoing stress-related illness and associated ADVO and domestic violence related matters. I accept that Ms Lamont was not in a mental state to be able to prepare and file her unfair dismissal application until she did so. I accept that she was given poor advice and acted upon it. Given her personal circumstances I consider her conduct to have been reasonable in this regard. Her application was filed three days out of time. Having had regard to the evidence and submissions filed I consider that Ms Lamont’s reasons for delay, individually or collectively, provide an acceptable or reasonable explanation for the delay in lodging the Application. The combination of events described by the evidence is undoubtedly out of the ordinary course, unusual, special and uncommon. This consideration weighs in favour of a finding that there are exceptional circumstances.

Whether Ms Lamont first became aware of the dismissal after it had taken effect?

No evidence was filed, nor submissions made, that Ms Lamont became aware of the dismissal after it had taken effect. Accordingly, I treat this factor as a neutral consideration.

Action taken by Ms Lamont to dispute the dismissal

Generally, where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[46]
The Respondent provided evidence of correspondence sent to it on 17 July 2025 from Ms Lamont’s legal representatives, in which Ms Lamont requested or demanded to be reinstated with the Respondent.[47]
The Respondent submits that despite Ms Lamont contesting her dismissal with the Respondent, which may weigh in favour of granting an extension of time, the Respondent made clear on 25 July, when Ms Lamont requested reinstatement, that it was not prepared to do so. The Respondent therefore submits that this factor weighs against granting an extension of time.[48]
On 31 July 2025 Ms Lamont sent an email rejecting the dismissal on the basis that it was not valid or was unlawful. She invited the Respondent to retract the dismissal. Return correspondence sent on the same day raised concerns regarding Ms Lamont’s post-dismissal conduct and did not expressly deal with Ms Lamont’s request for reinstatement.
I consider that Ms. Lamont took steps to dispute her dismissal as set in the preceding paragraphs. I consider that, on balance, Ms Lamont’s actions taken to dispute the dismissal are slightly in favour of a finding that exceptional circumstances exist that would warrant an extension, given that she has repeatedly agitated against her dismissal prior to commencing these proceedings.

Prejudice to the employer (including prejudice caused by the delay)

Ms. Lamont submits that there was little to no prejudice to the Respondent given the short delay in filing the Application. She also relies on evidence that she advised the Respondent on 31 July 2025 that she would be commencing proceedings regarding her dismissal.
The Respondent submits that any extension of time granted will cause prejudice to the Respondent due to the unnecessary time and costs associated with having to defend the claim and that this weighs against granting an extension of time.[49]
In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted. However, in Jovcic v Coopers Brewery Limited,[50] Besanko J stated that ‘the mere absence of prejudice to the respondent is not enough to justify the grant of an extension.’[51] I acknowledge that these observations were made in the context of an application to extend time for appeal. I nonetheless consider that they are apposite for an application to extend time under s.394(3). I consider prejudice to the employer to be a neutral factor in the overall assessment of whether there are exceptional circumstances.

The merits of the application

While the merits of the substantive application form a part of the consideration of whether to grant an extension of time under s.394(3), the Commission does not embark on a detailed consideration of the substantive case.[52] There are cogent reasons why the Commission should not receive evidence and make factual findings on contested issues at this stage of the proceedings: most notably because parties should not have to present their evidentiary case twice.[53] That said, the Act requires that I make some assessment of the merits of the application given that this is a material consideration in determining whether there are exceptional circumstances.
Ms Lamont’s evidence is that she and Mr Lamont jointly own the Respondent and managed the Respondent in an equal capacity. An organisational chart was relied on in support of this evidence. Ms Lamont argues that any decision made by Mr Lamont was, accordingly, invalid, void and to no effect.
Mr Lamont gave evidence on behalf of the Respondent. Mr Lamont’s evidence was that Ms Lamont was initially working as an office administrator and was appointed as Company Secretary, however as Ms Lamont and Mr Lamont were married, her employment was not subject to an employment contract. Mr Lamont claimed that on or around 22 February 2025, Ms Lamont changed her title to General Manager, which was not approved by Mr Lamont.[54]
Mr Lamont and Ms Lamont are equal shareholders of the Respondent, each owning one share. This arrangement was not subject to a shareholder agreement. However, Mr Lamont’s evidence was that he is the only director of the Respondent, with Ms Lamont being the director of a different entity which held no employees.[55]
Mr Lamont’s evidence was that Ms Lamont’s employment was terminated on 8 July 2025 after multiple opportunities were provided to her to attend disciplinary meetings, and respond to allegations of serious misconduct in writing between 24 June 2025 and 7 July 2025 which Ms Lamont failed to comply with.[56] The Respondent submits that the Application has no merit, including by reason that Ms Lamont’s earnings exceed the high income threshold. It submits that as no modern award covered her and no enterprise agreement applied to her that she was not protected from unfair dismissal and was precluded from pursuing the Application. The Respondent also submits that it is a small business that complied with the Code when dismissing her. It submits that it acted reasonably in dismissing Ms Lamont for reasons including that she “has not acted in the best interests of the Company, misused her authority and her conduct has had adverse effects on the trust and confidence in the employment relationship, and threatened the viability and profitability of the business.”[57]
Ms Lamont submits that she did not engage in serious misconduct and that the dismissal was based on false, unsubstantiated and incorrect allegations. Essentially Ms Lamont submits that she did not engage in any conduct which justified her summary dismissal. She argues that, as outlined above, the relationship had deteriorated in the months leading up to the dismissal after Ms Lamont sought to separate from Mr Lamont in March 2025. Ms Lamont submits that the dismissal was vexatious and retaliatory, resulting directly from the ADVO having been taken out against the Respondent’s Managing Director, Mr. Lamont, following the breakdown of their personal relationship. Ms Lamont also argued that her dismissal was in retaliation for her taking personal leave and domestic violence leave.
Ms Lamont also argues that she was not afforded procedural fairness as the Respondent proceeded with the disciplinary investigation and determination despite her documented illness and lack of capacity for any work which had the effect that she was unable to participate in the investigation or reply due to incapacity. She relies upon medical certificates from her treating medical practitioner and a WorkCover medical certificate recording her incapacity owing to an injury or illness sustained in the course of her employment. Ms Lamont also relies on a lack of particulars to the allegations and various other procedural deficiencies in the process leading up to her dismissal.
Ms Lamont also submits that her dismissal was harsh, unjust and/or unreasonable as the allegations made by the Respondent to dismiss her were unsubstantiated, frivolous and/or minor.
Finally, Ms Lamont argues that the Respondent was not a small business employer at the time of her dismissal and that the Respondent did not comply with the Code, even if it was a small business. She also argues that she did not earn more than the high-income threshold immediately before the time of or at the time that she was given notice of her dismissal.

Consideration - Merits of the application

There are significant jurisdictional hurdles to overcome should this matter proceed. The first of these is whether Ms Lamont’s annual rate of earnings was less than the high-income threshold.[58] Ms Lamont does not dispute that no industrial instrument covered her or applied to her.
In relation to the second objection concerning whether the Respondent is a small business and complied with the Code, based on the information before me and the level of contest in the evidence, I cannot ascertain whether the Respondent is likely to persuade the Commission that it was a small business and complied with the Code.
In relation to Ms Lamont’s substantive claim, much may turn on whether the Respondent is a small business, or not, and whether the conduct of Ms Lamont that gave rise to the dismissal was authorised by the Respondent.
As I have not heard all of the evidence of the parties in Ms Lamont’s substantive application it is not possible for me to make a detailed or concluded assessment of the merits of Ms Lamont’s application. On the materials currently before the Commission, it is clear that there is significant factual contest between the parties. The reasons for Ms Lamont’s dismissal and the various allegations made by both parties would need to the subject of oral evidence and careful consideration in a final hearing before any concluded view could be reached about the merits of Ms Lamont’s application. I anticipate that various business records (including those relating to the disputed three employees who are also family members of the Lamonts) will also be crucial to final consideration of whether the Respondent is a small business and whether there was a valid reason for the dismissal. The outcome of these proceedings will be impacted by an assessment of the credibility of Ms Lamont and Mr Lamont’s evidence on the issues in dispute, together with the credibility of other witnesses called to give evidence in a final hearing.
In these circumstances it is not possible to make any firm or detailed assessment of the merits. Given my observations above and the jurisdictional objections raised by the Respondent, I am satisfied that the merits of the Application are a neutral consideration in relation to whether I should extend time for the application to be made.

Fairness as between the person and other persons in a like position

Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any matter relevant to this aspect of the consideration. Accordingly, I treat this factor as a neutral consideration.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

As set out above, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[59]
Taking into consideration all of the evidence and submissions raised by the parties and the matters I am required to take into account under s.394(3) of the Act, I consider that there are exceptional circumstances in this matter.
The Applicant has an acceptable and reasonable explanation for the 3-day delay in lodging her unfair dismissal application in the Commission. The other relevant factors are neutral or weigh slightly in favour of Ms Lamont. Having regard to all the material before the Commission, I consider that the circumstances of this case are out of the ordinary course, unusual and uncommon including the receipt of poor advice regarding the statutory time frame for filing the Application and because the Applicant’s personal circumstances and poor mental health compromised her capacity to prepare and lodge her unfair dismissal application in the Commission. It is also for these reasons that I have determined to exercise my discretion to extend the time for the Applicant’s unfair dismissal application to be filed in the Commission.
An order giving effect to this decision will be issued concurrently with this decision. Directions for the further programming of this matter will be issued separately.

DEPUTY PRESIDENT

Appearances:

T. Lamont on her own behalf

E. McGlynn of Irwell Law Pty Ltd on behalf of the Respondent

Hearing details:

2025.

Sydney.

4 September.

[1] Section 394(2)(a) of the Act states that an Unfair Dismissal application must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(2)(b).

[2] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. (‘Nulty’)

[3] Ibid.

[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12].

[5] [2025] FWCFB 178.

[6] Ibid [36].

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39]. (‘Stogiannidis’)

[8] Ibid [40].

[9] Exhibit A1, Applicant’s outline of argument – objections – 25 August 2025, question 1d.

[10] Exhibit A3, Applicant’s statement of evidence – 25 August 2025, point 16.

[11] Exhibit A2, Applicant’s medical certificates – 25 August 2025; Exhibit A2, Applicant’s certificate of capacity/certificate of fitness – 25 August 2025.

[12] Exhibit A3, Applicant’s statement of evidence – 25 August 2025, points 7, 10 and 12.

[13] Exhibit A3, Applicant’s statement of evidence – 25 August 2025, point 21.

[14] Exhibit R1, Statement of Benjamin Lamont on behalf of the Respondent – 2 September 2025, point 9.

[15] Ibid, point 11.

[16] Ibid, point 12.

[17] Ibid, points 24-29.

[18] Outline of the Respondents Written Submissions – Jurisdictional Objection “Out of Time” – 2 September 2025, [24].

[19] [2024] FWC 3151.

[20] Outline of the Respondents Written Submissions – Jurisdictional Objection “Out of Time” – 2 September 2025, [17] and [20].

[21] Ibid [20].

[22] (1959) 101 CLR.

[23] Outline of the Respondents Written Submissions – Jurisdictional Objection “Out of Time” – 2 September 2025, [21].

[24] [2024] FWC 3151.

[25] [2018] FWC 3400.

[26] [2000] FCA 1084.

[27] Cubillo v Commonwealth (2000) 103 FCR 1 [355]; quoting Cross on Evidence, Butterworths, [4^th Ed] D Byrne, JD Heydon, Vol 1, [1215].

[28] Cubillo v Commonwealth (2000) 103 FCR 1, [360], citing Cross on Evidence, Butterworths, [4^th Ed] D Byrne, JD Heyson, Vol 1, [1210].

[29] [1997] Print P1859.

[30] Ibid, citing Café v Australian Portland Cement Pty Ltd (1965) 83 WN (Pt 1) NSW 280, 278.

[31] (2011) 202 IR 59.

[32] Ibid 65 [35].

[33] [2024] FWCFB 440.

[34] Ibid [33].

[35] Ibid [34]-[35].

[36] Nulty (n 2) [14].

[37] Nulty (n 2) [12], quoting Ho v Professional Services Review Committee No 295 [2007] FCA 388 [25] quoting R v Kelly [2000] QB 198, 208.

[38] Mamo v ICLED Australia Pty Limited T/A SignsNational Group [2021] FWC 3903, [11].

[39] Stogiannidis (n 7) [39].

[40] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 [29]-[31].

[41] [2025] FWCFB 178.

[42] Ibid [45]

[43] Ibid.

[44] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349.

[45] Ibid [31].

[46] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.

[47] Exhibit R1, Statement of Benjamin Lamont on behalf of the Respondent – 2 September 2025, point 25.

[48] Outline of the Respondents Written Submissions – Jurisdictional Objection “Out of Time” – 2 September 2025, [31] – [35].

[49] Ibid [36]-[37].

[50] [2023] FCA 797.

[51] Ibid [16], quoting Bqq15 v Minister for Home Affairs [2019] FCAFC 218, [33].

[52] Kyvelos v Champion Socks Pty Ltd (2000) Print T2421[14].

[53] Ibid.

[54] Exhibit R1, Statement of Benjamin Lamont on behalf of the Respondent – 2 September 2025, point 5.

[55] Ibid point 7.

[56] Ibid point 13, 15 – 22.

[57] Exhibit R1, Statement of Benjamin Lamont on behalf of the Respondent – 2 September 2025, annexure BL-8.

[58] Together with other relevant amounts pursuant to s. 382(b)(iii) of the Act.

[59] Nulty (n 2) [13].

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