1
Fair Work Act 2009
s.394—Unfair dismissal
Harsheen Lamba
v
National Australia Bank Limited
(U2023/454)
DEPUTY PRESIDENT BELL MELBOURNE, 17 FEBRUARY 2023
Application for an unfair dismissal remedy - application filed out of time - circumstances not
exceptional - application dismissed.
[1] On 18 January 2023, Ms Harsheen Lamba (Applicant) made an application to the Fair
Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work
Act 2009 (the Act). The Applicant alleges she was unfairly dismissed by National Australia
Bank Limited (Respondent) on 22 December 2022.
[2] The Respondent is a major Australian bank. At the time of her dismissal, the Applicant
was employed in the position of Associate Financial Crime Monitoring and Investigations.
[3] Section 394(2) requires unfair dismissal applications to be made within 21 days after
the dismissal took effect. Based on the material before the Commission it appears that the
Applicant made her unfair dismissal application six days outside the 21-day timeframe. The
Commission must therefore determine in the first instance if an extension of time should be
granted for the making of the application.
[4] There being contested facts involved, the Commission is obliged by s.397 of the Act to
conduct a conference or hold a hearing. After taking into account the views of the Applicant
and the Respondent and whether a conference or hearing would be the most effective and
efficient way to resolve the matter, I considered it appropriate to hold a determinative
conference for the matter (s.399 of the Act).
[5] On 24 January 2023, I issued directions requiring the Applicant to file evidence and
submissions. The Respondent was not required to file material but provision was made in the
event that it did. The Applicant gave evidence on her own behalf and filed a witness statement
and various supporting documents. The Respondent relied on written submissions and its Form
‘Form F3’ response, but did not file any witness statement.
[2023] FWC 393
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 393
2
[6] There is no dispute as to when the dismissal took effect. In the Respondent’s ‘Form F3
Employer Response’, the Respondent states the dismissal took effect on 22 December 2022.
The Applicant also contends in her Form F2 application, and I accept, that the date of dismissal
was 22 December 2022, and she included a letter of dismissal with that date.
[7] The application having not been made within 21 days of the date on which the dismissal
took effect, I need to consider whether it was made within such further period as the
Commission allows.
[8] Under section 394(3) of the Act, the Commission may allow a further period for an
unfair dismissal application to be made if the Commission is satisfied that there are exceptional
circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect;
and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
[9] Each of the above matters must be considered in assessing whether there are exceptional
circumstances.1
[10] I set out my consideration of each matter below.
Reason for the delay
[11] For the application to have been made within 21 days after the dismissal took effect, it
needed to have been made by midnight on 12 January 2023. The delay is the period
commencing immediately after that time until 18 January 2023, although circumstances arising
prior to that delay may be relevant to the reason for the delay.2 In the present case, the delay is
approximately six days.
[12] The reason for the delay is not in 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.3
[13] 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 the applicant
has not provided any reason for any part of the delay.4
[2023] FWC 393
3
[14] The Applicant’s Form F2 and witness statement sets out three broad reasons for delay,
namely:
• Her shock, distress and break down in mental health following the dismissal;
• A planned trip to India between 25 December 2022 and 6 January 2023; and
• At least as is stated in her Form F2, she was “not aware of the 21 day application time
frame”.
[15] The first of the above reasons was the primary reason advanced by the Applicant.
[16] The Applicant’s evidence is that in March 2022, she and her husband had booked flights
to Sri Lanka, initially departing on 25 December 2022 and returning on 16 January 2023. In
early November 2022, the return date was changed to 6 January 2023. The exact purpose of the
trip was not disclosed in her statement but was described as “an obligatory family trip for
extenuating circumstances”. There was some brief cross-examination of the Applicant
regarding those matters at the determinative conference before me and, while I do not consider
it necessary to set them out here, I have had regard to them.
[17] In the section of the Applicant’s witness statement addressing her reasons for delay in
filing her application, she states:
“8. During the period of travel (inclusive of the three days prior to pack luggage) between
Sunday, 25 December 2022 and Friday, 6 January 2023, I was unable to process the
shock, disbelief and stress that my employment of circa six years with the Respondent
being terminated, my name being listed on the Australian Banking Association registry
and with ASIC as a Fraud Event and that any future career prospects within the banking
& finance industry including the Respondent being adversely affected, until our return
back to Australia.
9. Following our return to Australia, I was in a state of extreme shock, disbelief and
distress as the termination and other consequence outcomes handed to me by the
Respondent dawned on me. For an extended time after our return to Australia and till
this day, I suffer from many sleepless nights, the range of the aforementioned emotions,
sudden break downs and a decline in my mental health as a result of my termination and
the other outcomes handed to me by the Respondent. Due to the close departure
overseas on Sunday, 25 December 2022, and the requirement to return all equipment
via post to the Respondent, I was not able to fully encompass the outcomes delivered
to me by the Respondent at 9am on Thursday, 22 December 2022.
10. After understanding the basis of my termination from the Respondent versus the
Severity Matrix available to all employees, the communications between myself and my
supervisor, Ben Child (hereinafter referred to as Child), and the facts presented by
myself to Child and the Respondent, I lodged Form F2 – Unfair dismissal application
against the Respondent to the Commission on Wednesday, 18 January 2023.”
[18] I find that the reasons for the delay were due to the Applicant prioritising her family trip
to Sri Lanka, as well at taking the time to process the fact of her dismissal given the distress it
caused her. It would also appear that the Applicant had not turned her mind to the time frame
[2023] FWC 393
4
required to make an unfair dismissal claim. To my mind, these conclusions are tolerably clear
from the chronology of events set out in the Applicant’s evidence.
[19] While I accept that the personal circumstances of the Applicant indicated a difficult
period following her dismissal and dealing with the shock and consequences to her of that event,
I am not satisfied that the evidence of the impact of the dismissal upon her rose to such a level
as to adequately explain the delay in commencing an unfair dismissal application. So far as the
Applicant relies on the fact of her travel as an extenuating reason, I also do not consider this as
an adequate reason for delay, even taken together with the impact that the dismissal had upon
her. I also do not consider that ignorance of the statutory time frame is an extenuating reason.
[20] In short compass, I am not satisfied the reasons for the Applicant’s delay in commencing
her unfair dismissal claim point to circumstances that would support a finding of exceptional
circumstances. Of the factors I must consider in s.394(3), I consider the factor in s.394(3)(a)
tends against the application for an extension of time.
Did the Applicant first become aware of the dismissal after it had taken effect?
[21] It was not in dispute, and I so find, that the Applicant was notified of the dismissal on
the same day that it took effect. Therefore, the Applicant had the benefit of the full period of 21
days to lodge the unfair dismissal application.
What action was taken by the Applicant to dispute the dismissal?
[22] 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.5
[23] The Applicant’s evidence, which I accept, is that she has not taken any action to dispute
her dismissal apart from lodging her unfair dismissal application.
What is the prejudice to the employer (including prejudice caused by the delay)?
[24] 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.
What are the merits of the application?
[25] The competing contentions of the parties in relation to the merits of the application are
set out in the filed materials, although at a relatively high level.
[26] The Respondent’s Form F3 provides the following explanation concerning the
Respondent’s basis for the Applicant’s dismissal, at least so far as the conclusions of an
investigation it conducted were concerned:
“a. between 18 May 2022 and 6 November 2022 Ms Lamba had inaccurately altered her
start-time in AOM on 94 occasions which included 10 days of having worked overtime.
[2023] FWC 393
5
b. the number of hours claimed as overtime over these 10 occasions was 40 hours,
however 13 of those hours were not worked.
c. The estimated cost to NAB in unworked overtime payments is $1,133.56.
d. Ms Lamba initially provided untruthful responses to the investigators, however made
full admission to having claimed overtime hours and submitting inaccurate timesheets
when confronted with evidence of her conduct.”
[27] The Respondent says that “NAB concluded that Ms Lamba had falsified data for
personal gain, engaging in timesheet fraud” and its Form F3 describes subsequent steps to notify
the Applicant of those findings.
[28] In her witness statement, the Applicant states:
“18. The Respondent stated in Form F3 – Employer response to unfair dismissal
application that I “had manipulated data for personal gain” with intent and were in
breach of the Respondent’s policies. The “personal gain” was not of a financial motive
nor done with any intent to defraud the Respondent, but was only with the intention to
assist my parents in their hospitality business, …. During 2022 my parents were
experiencing significant staff shortage issues, as most hospitality business were and are
facing. The monies received for the hours not worked remained in my account and I had
written to the Respondent on 19 December 2022 via Response to Show Cause
GIF0005420 and verbally spoken with Child on 19 December 2022 that I want to return
any monies owed to the Respondent (may that be in lump sum or payment arrangement,
however the Respondent wished to claw back the monies) as my conduct was not with
intent, but rather negligence and that it was not to obtain a financial advantage nor
defraud the Respondent. Further, in reference to the consequence outcomes stated
within Annexure D attached to this statement, I had verbally communicated with Child
on 19 December 2022 that I am willing to accept forfeitures of any bonuses for one to
two years, any salary increase (the salary increase of 5% the Respondent provided to
its employees on 5 January 2023) and any eligibility for promotion for one to two years
if I was able to retain my employment with the Respondent.
19. I do acknowledge that my initial response to the Child on 10 November 2022 and
investigators for the Respondent in a recorded interview on 13 December 2022 was
untruthful, however this was only because I was ashamed and embarrassed of my
conduct as a result of my personal situation to the Respondent. As the Respondent
states in Attachment D attached to the Respondent’s Form F3, I did make full
admissions to the investigators regarding my personal situation and that I had amended
the timesheet without realising the implications of my conduct within the recorded
interview on 13 December 2022. Following the conversation with Child on 10
November 2022, I had immediately corrected my actions.”
[29] The Applicant also refers to other information concerning her “extenuating personal
situation” that she suggests was not considered, such that the dismissal was disproportionate.
[2023] FWC 393
6
[30] Having regard to the Applicant’s role within NAB and the Applicant’s own descriptions
of the transactions and events that led to her dismissal, including being initially untruthful in a
recorded interview, those considerations suggest that the Applicant’s substantive unfair
dismissal claim will have a number of challenges.
[31] Notwithstanding, it is well established that, “it will not be appropriate for the Tribunal
to resolve contested issues of fact going to the ultimate merits for the purposes of taking account
of the matter in s.366(2)(d)”6 and the same applies to s.394(3)(e). Perhaps with some generosity
to the Applicant, I am prepared to treat this factor neutrally.
Fairness as between the Applicant and other persons in a similar position
[32] Neither party brought to my attention any relevant matter concerning this consideration
and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is
nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the
matters above?
[33] I must now consider whether I am satisfied that there are exceptional circumstances,
taking into account my findings above.
[34] Briefly, 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.7 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.8 Mere ignorance of the statutory time limit is not an exceptional
circumstance.9
[35] The stress and shock that accompanies a dismissal will not, without more, favour a
finding of exceptional circumstances. Where there is medical evidence that stress or some other
condition affected an applicant in such a way as to cause, contribute or explain the delay, such
evidence may, depending on all the circumstances, weigh in favour of the Commission being
satisfied that exceptional circumstances exist.10
[36] Each case turns on its own facts. There are no categories of illness or disability that will
automatically result in the Commission being satisfied that exceptional circumstances exist.11
[37] Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in
favour of a finding of exceptional circumstances. Of significance is evidence that establishes
that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously
impeded in lodging their unfair dismissal application.12
[38] 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.13
[2023] FWC 393
7
[39] The delay in the present case is six days. In the context of a 21 day period for making
an unfair dismissal application, six days is well past the statutory timeframe.
[40] The reasons for delay are in large part due to the time taken for the Applicant to process
the shock and distress associated with her dismissal, coupled with difficult travel obligations
and some ignorance about the statutory time limit. While the Applicant’s evidence indicates
some genuine shock and distress, I am not satisfied that evidence rises to such a level to properly
explain such a delay or, indeed, any specific parts of it other than at a general level. I am not
satisfied that the reasons for dismissal, on their own or in combination with any other supportive
matter establish exceptional circumstances.
[41] As the Applicant had taken no steps to challenge her dismissal beyond the lodgement of
her unfair dismissal claim, I do not consider that circumstance assists her application.
[42] I acknowledge that there is no prejudice to the Respondent, a matter which I will treat
neutrally. Similarly, the fairness between the Applicant and other persons in a similar position
and the merits of the application neither add nor detract from my consideration.
[43] While I acknowledge the genuine challenges that Ms Lamba has faced since her
dismissal, when having regard to all of the matters listed at s.394(3) of the Act, I am not satisfied
that there are exceptional circumstances of the kind required by the statute.
Conclusion
[44] Not being satisfied that there are exceptional circumstances, there is no basis to allow
an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore
dismissed. An Order14 to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
H Lamba on her own behalf
S Aloi from the Respondent
Hearing details:
OF THE WORK C MMISSION THE SEAL
[2023] FWC 393
8
2023.
Melbourne (by video link via Microsoft Teams):
February 17.
Printed by authority of the Commonwealth Government Printer
PR750684
1 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
2 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].
5 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
6 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].
7 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].
8 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].
9 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472,
[23].
10 Becke v Edenvale Manor Aged Care [2014] FWCFB 6809, [9].
11 Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988, [31]; Weir v Hydro-Chem Pty Ltd [2017] FWCFB 758,
[37].
12 Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd [2016]
FWCFB 5472, [22].
13 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
14 PR750685
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb901.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb287.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb901.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb901.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb975.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb975.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb975.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb975.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb5472.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb6809.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb4988.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb758.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb4988.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb5472.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb5472.htm
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr750685.pdf
