1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Madeleine Nguidjol
v
Stonnington City Council T/A City of Stonnington
(C2023/8238)
DEPUTY PRESIDENT MASSON MELBOURNE, 19 JANUARY 2024
Application to deal with contraventions involving dismissal – jurisdictional objection -
application made outside of 21-day time limit - exceptional circumstances present –
representative error - extension of time granted.
[1] On the 31 December 2023, Ms Madeleine Nguidjol (the Applicant) lodged an
application (the Application) pursuant to s. 365 of the Fair Work Act 2009 (the Act) in which
she asserts that the termination of her employment on 8 December 2023 by Stonnington City
Council T/A City of Stonnington (the Respondent) contravened her workplace rights.
[2] Following allocation of the matter to my Chambers on 9 January 2024, Directions were
subsequently issued to the parties for the filing of material in relation to the jurisdictional issue
of the application being out of time. The Applicant filed material in accordance with the
Directions issued following which the Respondent withdrew its jurisdictional objection. Both
parties then consented to the matter being dealt with on the papers.
Background and Evidence
[3] The Applicant commenced employment with the Respondent as People Advisor on 10
January 2022 and was terminated with immediate effect on 8 December 2023. Immediately
following her dismissal, the Applicant spoke with her solicitor Ben Grillo regarding her options
and was advised by Mr Grillo that she had 21 days within which to file an unfair dismissal
application, and that based on her date of dismissal of 8 December 2023 she was advised by Mr
Grillo that the cutoff date for filing her application was Monday 1 January 20241.
[4] Mr Grillo provided his advice on the cutoff date for filing the application on what he
now accepts was a flawed calculation. From 8 December 2023 when he spoke with the
Applicant, Mr Grillo states that he proceeded on the incorrect presumption that Monday 1
January 2024 was the final day the application could be made2.
[5] On 18 December 2023, the Applicant was forwarded a cost agreement and disclosure
statement by Mr Grillo and was again advised that the filing deadline was Monday 1 January
20243. She was also advised that her solicitor’s office would be closed from 22 December 2023
for the Christmas New Year break. She subsequently executed the cost agreement which set
[2024] FWC 164
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc164.pdf
[2024] FWC 164
2
out the costs and application fee for filing of the application and instructed her solicitor on 19
December 2023 to proceed with her application4.
[6] On 21 December 2023 Mr Grillo spoke by telephone to the Applicant and again
provided instructions that the final day for filing the application was 1 January 2024, that he
would send a draft application to her and that after her approval he would submit the application
to the Commission5.
[7] On 22 December 2023, the Applicant received a draft of the application via email from
her solicitor requesting her approval and advising that once approved the application would be
filed and a final version would then be provided to the Applicant for her records. On 22
December 2023, the Applicant sent her solicitor two emails requesting minor amendments. In
doing so the Applicant remained of the belief based on her solicitor’s consistent advice that the
deadline for filing of the application was 1 January 20246. On 31 December 2023 Mr Grillo
filed the Applicant’s general protection application and subsequently confirmed with the
Applicant that the application had been filed prior to 1 January 20247.
[8] On 8 January 2024 Mr Grillo received an email from the Commission outlining that the
application filed on Saturday 31 December 2023 was lodged late. It was at this point Mr Grillo
realised that he had miscalculated the 21-day statutory period and had consistently
communicated the wrong date to the Applicant. He states that the application was filed out of
time due to a genuine error on his part and through no fault of the Applicant. He confirms that
the Applicant issued instructions and provided all required documents in a timely manner such
that he was in a position to file the application by 22 December 2023 which was seven days
before it was due and nine days before he ultimately filed the application8.
Statutory framework
[9] Section 365 of the Act provides that a person who has been dismissed may apply to the
Commission to deal with the dispute. Section 368 of the Act confers authority on the
Commission to deal with a dismissal dispute if an application is made under s 365. For an
application to be validly made under section 365, it (the application) must be made within 21
days after the dismissal took effect or such further period as the Commission allows pursuant
to section 366 of the Act.
[10] The Applicant’s dismissal took effect on 8 December 2023. Therefore, the period of 21
days ended at midnight on 29 December 2023 and as the Application was made on 31 December
2023, it was filed 2 days outside the 21-day period. The Applicant asks the Commission to grant
a further period for the Application to be made under s.366(2) of the Act.
[11] The Act allows the Commission to extend the period within which a general protections
dismissal dispute application can be made only if it is satisfied that there are ‘exceptional
circumstances.’ 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.9 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.10
[2024] FWC 164
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[12] The requirement that there be exceptional circumstances before time can be extended
under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3)
to extend the 14-day period within which an enterprise agreement must be lodged, which is
exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
[13] Section 366(2) requires that, in considering whether to grant an extension of time, the
Commission must take into account the following:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[14] The requirement that these matters be taken into account means that each matter must
be considered and given appropriate weight in assessing whether there are exceptional
circumstances. I now turn to consider these matters in the context of the Application.
Reason for the delay
[15] For the Application to have been made within 21 days after the dismissal took effect, it
needed to have been made by midnight on 29 December 2023. The delay is the period
commencing immediately after that time until 31 December 2023, although circumstances
arising prior to that day may be relevant to the reason for the delay.11
[16] 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.12 An applicant does not need to provide a reason for the entire period of the
delay although 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. Depending on all the circumstances, an
extension of time may still be granted where the applicant has not provided any reason for any
part of the delay13.
[17] It is plainly apparent from the chronology and description of events set out above that
the Applicant gave clear and timely instructions to her solicitor Mr Grillo regarding the filing
of her application. The Applicant conveyed this both orally in telephone calls and in writing to
Mr Grillo. Mr Grillo consistently advised the Applicant, incorrectly as it turns out, that the
deadline for filing her application was 1 January 2023. That date by reason of Mr Grillo’s
miscalculation led him to file the application two days outside the 21-day statutory time period.
[2024] FWC 164
4
[18] The Applicant was entitled to rely on the expertise of her solicitor and in doing so she
responded in a timely manner to all instruction and documentary requirements. That is evident
by Mr Grillo having been in a position to finalise and file the application on 22 December 2023.
Responsibility for the failure to file the application prior to the 31 December 2023 when the
application was filed lies with Mr Grillo and cannot be attributed to a failure on the Applicant’s
part to either provide clear instructions or follow up with Mr Grillo.
[19] In the above circumstances I am satisfied that the reason for the delay can be attributed
to representative error. This weighs strongly in favour of a conclusion that there are exceptional
circumstances.
Action taken to dispute the dismissal
[20] It is not apparent that the Applicant took any action to contest her dismissal after it took
effect on 8 December 2023, other than lodging her general protections application. This
circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
[21] The Application was filed 2 days outside of the 21-day period. There is no material
before me to suggest that the delay would cause prejudice to the employer if the application for
an extension of time were granted. This factor weighs neutrally in my consideration.
Merits of the application
[22] The Act requires me to take into account the merits of the Application in considering
whether to extend time. The Applicant states that after raising concerns in September 2023
about tasks she was required to perform and then making a formal complaint to management
over her concern she would be placed on a performance improvement plan (PIP), she was
placed on a PIP which took effect on 16 October 2023. Concerns regarding the performance
management process were raised with the Respondent by the Applicant’s solicitor on 31
October 2023 and a subsequent meeting between the Applicant and her managers resulted in
further negative feedback being provided to the Applicant on her performance. The Applicant
subsequently received a formal warning on 17 November 2023 for underperformance and a
revised PIP and on 27 November 2023 she received a letter from the Respondent containing
allegations of misconduct. On 1 December 2023, the Applicant’s solicitor sent a response to
the Respondent on her behalf regarding the misconduct allegations. Following a show cause
letter sent to the Applicant on 5 December 2023 and consideration of the Applicant’s response
on 6 December 2023 the Applicant was dismissed on 8 December 2023 for serious misconduct.
[23] The Applicant contends that her dismissal constituted adverse action and that such
action was taken for prohibited reasons that being the Applicant exercised a workplace right by
raising a complaint or inquiry regrading completion of tasks and that by being placed on a PIP
she had suffered a detrimental alteration of her position. She further contends that adverse
action was taken against her because of her race and/or colour.
[24] While not filing any material for the purpose of the jurisdictional proceeding the
Respondent in its Form 8A response denies the Applicant’s allegations.
[2024] FWC 164
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[25] Having reviewed the evidence of the Applicant and the various correspondence relating
to the PIP performance management and disciplinary processes it is evident to me that the
merits of the Application may turn on contested points of fact which would need to be tested if
an extension of time were granted and the matter were to proceed. It is not possible to make
any firm or detailed assessment of the merits. However, the Applicant has raised arguments that
are not without merit. I do not consider the merits of the present case tell against an extension
of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[26] This consideration may relate to matters currently before the Commission or to matters
previously decided by the Commission. It may also relate to the position of various employees
of an employer responding to a general protections application. However, cases of this kind
will generally turn on their own facts.
[27] 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.
Conclusion
[28] Having regard to the matters I am required to take into account under s.366(2), and all
of the matters raised by the Applicant and outlined above, I am satisfied that there are
exceptional circumstances present in this case, when the various circumstances are considered
both individually and together. In weighing the various criteria, I have had particular regard to
the reason for the delay in filing the application which I have found was caused by
representative error.
[29] I am satisfied that there are exceptional circumstances and that it is appropriate for me
to exercise my discretion to grant an extension of time under s 366(2) of the Act for the general
protections application to be made. The application will shortly be listed for a conciliation
conference pursuant to s 368 of the Act.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
OF THE FAIR WORK AUSTRALIA ISSION THE SE
[2024] FWC 164
6
PR770446
1 Exhibit 1, Witness Statement of Ben Grillo, dated 17 January 2024, at [24]
2 Ibid at [18]-[22]
3 Ibid at [25]
4 Ibid at [27]
5 Ibid at [29]
6 Exhibit A2, Witness Statement of Madeleine Nguidjol, dated 16 January 2024 at [37]
7 Exhibit A1 at [33]
8 Ibid at [34]-[36]
9 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].
10 Ibid.
11 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
12 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].
13 Ibid at [40].
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb975.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb287.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb901.htm
