UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2026 WAIRC 00214

DELIVERED : Monday, 13 April 2026

FILE NO. : U 76 OF 2024

Applicant

AND

The Trustee for Vadakkumchery Family Trust

Respondent

CatchWords : Industrial Law (WA) - Unfair dismissal application - Application filed outside of 28-day timeframe - Whether application ought to be accepted outside of the prescribed timeframe - Relevant principles applied - Extension of time to file application refused - Application dismissed

Legislation : Industrial Relations Act 1979 (WA)

  Industrial Relations Commission Regulations 2005 (WA)

  Fair Work Act 2009 (Cth)

Result : Extension of time refused

Representation:

Applicant : Ms S Jones

Respondent : Ms M Kollanoor

Case(s) referred to in reasons:

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51; (2004) 84 WAIG 683

Ms Sharon Jones v The Trustee for Vadakkumchery Family Trust [2024] FWC 1796

Reasons for Decision

1         Ms Sharon Jones (applicant) filed an unfair dismissal application on 14 August 2024 against The Trustee for Vadakkumchery Family Trust, trading as Just Cuts Cockburn (respondent). The applicant was employed by the respondent as a Hairdresser from 4 December 2023 until 29 April 2024 when she was dismissed. The applicant seeks financial compensation.

2         On 28 August 2024 the respondent filed a response, objecting to the Commission accepting the application because the application was filed outside of the 28‑day prescribed timeframe.

3         The respondent asserts the applicant has failed to provide an explanation for the delay in filing her application to the Commission after 9 July 2024. Furthermore, the respondent opposes the application on the basis that the applicant’s dismissal was fair in the circumstances.

4         On 24 October 2024, the applicant also made an application under s 29(1)(d) of the Industrial Relations Act 1979 (WA) (IR Act). The applicant sought an order for the respondent to pay $220.92, being a tool allowance claimed as an entitlement under the terms of her contract of employment.

5         On 4 December 2024, the respondent filed a response opposing the claim on the basis that the benefit claimed was not a term of the contract of employment. The respondent says the benefit arises under an industrial instrument and was not payable because the applicant was engaged casually and the allowance only applies to full-time or part-time employees.

6         The contractual benefits claim was discontinued on 9 October 2025.

7         A conciliation conference was listed for 29 October 2024. On the morning of the conciliation conference, the applicant contacted the Commission’s Registry to advise that she was unwell and would not be able to attend in person. She also said that her internet connection was not adequate to conduct proceedings by video link. The conciliation conference was vacated, and the parties were notified on 13 December 2024 that the matter was re-listed for 11 March 2025.

8         On 10 March 2025, the day preceding the re-scheduled conciliation conference, my Associate contacted the applicant to confirm her attendance. The applicant advised my Associate that she was unable to attend due to personal circumstances and requested the conciliation conference be vacated.

9         On 10 March 2025, my Associate emailed the parties to notify that the Commission had granted the applicant’s request to vacate the conciliation conference. The Commission requested that the applicant advise the Commission and respondent as to how she wished to progress her application within one week.

10      On 17 March 2025, the applicant emailed the Commission saying ‘I would like to proceed with the unfair dismissal and contractual benefit claim’.

11      On 19 March 2025, the Commission emailed the parties:

Dear Ms Jones and Ms Kollanoor

I refer to Ms Jones’ email requesting that her applications proceed, and the attached email regarding the jurisdictional objections of the respondent.

I note that Ms Jones’ initial application was out of time and the respondent agreed to reserve their jurisdictional objections in both applications and participate in conciliation. The respondent is able to request that jurisdictional matters be heard and determined before any further proceedings.

To date two conciliation conferences have been scheduled and adjourned because Ms Jones has been unable to attend. Given the considerable time since the application was made in August 2024, Commissioner Walkington requests the parties to provide their views on the options to progress this matter:

Option 1) Conciliation – this is an opportunity to discuss the matter with a view to reaching a resolution that is agreed by both parties. The process is an informal discussion and requires each party genuinely consider solutions from each other’s perspectives. If an agreement is reached at conciliation the applications can be concluded without the need to conduct a hearing before the Commission to decide the outcome. The Commissioner’s role is to facilitate the conciliation process and the Commissioner does not decide the outcome.

Option 2) If either party believes that conciliation will not provide an agreed resolution, then they may request that the matter be referred for hearing and determination. In this case both parties present their evidence, under oath or affirmation, and their submissions before the Commission. The Commission then decides the outcome. Parties notified of the hearing are required to attend, and the hearing may proceed in one party’s absence if they do not attend. In U 76/2024 the respondent’s jurisdictional objections will need to be heard and determined as a preliminary matter before any further proceedings.

Please provide the dates which you are not available from the periods below for a hearing or conciliation (AM or PM):

Wednesday 26 March 2025

Monday 31 March 2025

Tuesday 1 April 2025

Tuesday 8 April to 10 April 2025

Monday 5 May to Thursday 15 May 2025

If you have any queries, please do not hesitate to contact chambers. Please note, it is a requirement that all parties copy the other side into all correspondence, to ensure the Commission remains fair and transparent.

12      Both the applicant and respondent requested to conciliate and on 7 April 2025, were notified of a conciliation conference for Monday, 21 July 2025.

13      The applicant failed to attend the conciliation conference. The applicant’s reasons for not attending are that she had mistakenly thought the conciliation conference was scheduled for 31 July 2025.

14      Given the attempts to convene a conciliation conference were to date unsuccessful, the Commission determined that the preliminary matter of whether to accept the application out of time, ought to be decided first before proceeding any further with the application.

15      Section 29(2)(a) of the IR Act provides that applications be filed within 28 days of the termination of employment. Therefore, this application is made 79 days beyond the prescribed timeframe.

16      However, s 29(3)(d) of the IR Act permits the Commission to accept an application out of time if it would be not unfair to do so.

17      The parties were informed that the Commission’s determination is guided by the principles outlined in Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51; (2004) 84 WAIG 683 (Malik) [74]:

The principles enunciated by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 are apposite. In that case his Honour was considering the jurisdiction under s 170EA of the Industrial Relations Act 1988 (Cth), as it then was, to grant an extension of time. His Honour said, after examining previous applicable authority:

"I agree, with respect, that those principles are appropriate to be applied in the circumstances of this matter. Briefly stated the principles are:

1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion [74]."

Timeline of hearing

18      On 31 July 2025, the parties were notified that the Commission was of the view that a decision needed to be made on whether to accept the application out of time as a preliminary matter.

19      As the onus is on the applicant to show why the Commission ought to accept the application out of time, the respondent was informed that they were not required to attend the hearing unless they wished to do so.

20      The preliminary matter was subsequently listed for a directions hearing for 9 October 2025 to program the preliminary matter to hearing and determination.

21      At the directions hearing on 9 October 2025, the applicant informed the Commission that they were content to proceed with providing oral submissions on the preliminary matter. The applicant however, requested that they be given seven days to provide evidence on their incapacity to file an application in July 2024. The applicant submits that they were unable to file an application because of her mental health, and an injury sustained at this time.

22      Following the directions hearing, the Commission directed that the applicant provide any evidence or documents they have to support their incapacity to file an application in July 2024, by no later than 4.00 pm, 16 October 2025.

23      The Commission also gave the respondent an opportunity to provide written submissions in reply to the applicant’s evidence, within seven days after the transcript of the proceedings on 9 October 2025 were provided.

24      The applicant’s evidence to support their incapacity to file an application in July 2024, was provided to the Commission and respondent by email on 10 October 2025.

25      On 15 October 2025, the parties were provided with a copy of the transcript of the proceedings held on 9 October 2025, and the respondent was requested to provide written submissions in reply to the applicant’s evidence by 23 October 2025.

26      On 16 October 2025, the respondent provided the Commission and the applicant their written submissions on the preliminary matter, and submissions in reply to the applicant’s evidence.

27      On 21 October 2025, the applicant provided written submissions in reply to the respondent’s written submissions.

28      On 23 October 2025, the Commission wrote to the parties to ascertain whether the parties wished a further hearing to provide oral submissions and evidence. Inquiries were made in this correspondence to confirm whether the parties consented under reg 32A of the Industrial Relations Commission Regulations 2005 (WA), for the preliminary matter to be determined on the papers. The parties were requested to provide their views by no later than 4.00 pm Tuesday, 28 October 2025.

29      On 27 October 2025, the respondent informed the Commission that they consented to the preliminary matter being determined on the papers. On 28 October 2025, the applicant also consented to the preliminary matter being determined on the papers.

30      On 29 October 2025, the Commission informed the parties that the preliminary matter would be determined on the papers. The parties were informed in this correspondence that the decision was reserved, with a determination to follow.

Length of delay

31      The application is filed some three months after the dismissal and two months after the timeframe prescribed by the IR Act. The delay is substantial and, applying Malik, the applicant must establish compelling reasons for the delay.

Reasons for the delay

32      The applicant provided a medical certificate dated 19 July 2024 which states:

Ms Sharon Jones has been having pain the right shoulder and neck region since 14/7/2024, and is on management with rest, pain medications and physiotherapy.

She has been advised not to strain her neck and right Upperlimb.

33      The applicant also provided an Insurance Commission of Western Australia Online Crash Report form submitted on 16 July 2024, which states that she was involved in a motor vehicle accident on 14 July 2024. The form says the applicant suffered head, shoulder and arm injuries. The report states the applicant is retired.

34      The applicant also submitted a Workcover WA First Certificate of Capacity for an injury of workplace bullying. The First Certificate of Capacity states the injury was sustained in December 2023. The medical assessment is dated 8 August 2024 and states she has no capacity to work from 8 August 2024 until 22 August 2024. A Workcover Progress Certificate of Capacity of a medical assessment on 22 August 2024, states the applicant had no capacity to work from 22 August 2024 until 5 September 2024.

35      The respondent submits that the applicant had commenced a general protections application in the Fair Work Commission on 17 May 2024. The general protections application was dismissed on 9 July 2024 because the Fair Work Commission (FW Commission) lacked the necessary jurisdiction to hear and determine the claim: Ms Sharon Jones v The Trustee for Vadakkumchery Family Trust [2024] FWC 1796.

36      The respondent contends that the applicant was put on notice that the appropriate tribunal for an unfair dismissal application, was this Commission. The respondent had informed the applicant they were not a national system employer in their response to the FW Commission claim on 5 June 2024.

37      The respondent also submitted correspondence they received from the applicant on 21 July 2024, 24 July 2026 and 29 July 2024. The respondent submits that this shows the applicant had at least some capacity to file an application to the Commission during this period, as they were capable of typing emails and submitting Workcover requests.

38      The applicant’s evidence does not sufficiently address the reasons for the delay in making her application. Over one month lapsed between the dismissal of her application to the FW Commission and her application to this Commission. The medical certificate submitted by the applicant, states the injury and advises her to not strain her neck or right upper limb. However, crucially, it does not address her incapacity for filing an application with the Commission nor participating in proceedings before the Commission. I accept the respondent’s submissions that they had some capacity to type emails and file an application during this period.

39      The applicant argues that her confusion about submitting the Workcover certificate/s, clearly indicates her incapacity due to mental health issues at the time. Without evidence, I cannot infer that the applicant’s confusion was due to mental health issues that rendered the applicant incapable to file an application within the prescribed timeframe.

40      I am not satisfied that the applicant has provided a reasonable explanation for the delay in filing her application. This factor weights against accepting the application out of time.

Actions taken to contest the dismissal

41      The applicant initially filed a general protections application under s 365 of the Fair Work Act 2009 (Cth) (FW Act) to the FW Commission on 17 May 2024. This application was not made within the FW Commission’s prescribed timeframe.

42      The respondent was, therefore, aware that that the applicant was challenging her dismissal, albeit outside of the prescribed time.

43      I find that this factor weighs in favour of a determination that it would not be unfair to accept the application out of time.

Prejudice to the respondent

44      The respondent does not make any submissions concerning prejudice beyond that of being required to answer a claim of unfair dismissal.

45      I find that this factor weighs in favour of a determination that it would not be unfair to accept the application out of time.

Merits of the claim

46      The applicant suggests she was dismissed because she reported three employees for bullying behaviour. The applicant claims she was bullied by her employer. The applicant also believes the dismissal occurred because she had questioned her employer about whether she was being paid properly according to the relevant award. The applicant says she was not given any warnings regarding alleged complaints about her performance and conduct.

47      The respondent opposes the applicant’s suggestions, and says the applicant was dismissed because of her substandard performance, unacceptable behaviour and overall conduct with the team. The respondent provides the following reasons for her termination in their response to the application filed on 28 August 2024:

1. Sharon was dismissed from her employment due to several reasons relating to her performance and conduct.

2. Several complaints have been made about her performance by clients and work colleagues.

3. These reasons for termination of employment include but are not limited to:

(a) Sharon Jones was appointed as a Senior Stylist at Just cuts Cockburn. However, her performance was consistently below par and often resulted in unhappy customers. This was reflected in the negative customer feedback received on social media.

(b) Sharon Jones was found gossiping about other employees on multiple occasions. On one such occasion, Sharon was interrupted by the team lead, however she responded by yelling at the Team lead.

(c) It was reported by other staff members that Sharon tried to rally them against me (as the owner) by telling them “Your owners are exploiting you” and other remarks regarding tool allowance. It was clear to us that Sharon was creating a toxic environment within the workplace where many of our staff members felt uncomfortable.

(d) Sharon Jones deliberately provided false statements during her interview about her prior employment. She had been employed by at least 3 other Just Cut salons and when we asked about prior employment, she failed to disclose this. She had been employed by the owner of the Just Cut we had just purchased. If we had known of her we would have reference checked her work, and would have discovered, as we now have, that she was given a negative feedback on each occasion. That information would have influenced her appointment at Just Cuts Cockburn. When confronted about this, Sharon responded with “I didn’t think it was relevant information”

(e) On a few occasions Sharon failed to take ownership of her actions when negative feedback was received from the customer.

48      The Commission’s assessment is in a ‘rough and ready’ way for the purposes of determining whether to accept an application out of time: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 [9].  

49      The parties did not make detailed submissions concerning the merits of the claim. This is a neutral factor in my consideration.

Fairness between the applicant and other persons in similar circumstances

50      In circumstances where an applicant’s claims to the FW Commission are dismissed because the employer is not a national system employer, it is expected an application would be filed to this Commission quickly.

51      There are many examples of applications being filed expediently to this Commission, once it is clear the employer is not a national system employer under the FW Act. There are also many examples where applicants have made applications to both the FW Commission and to this Commission, where there is an ambiguity about the correct jurisdiction. This is permitted by s 29AA of the IR Act.

52      The applicant did not act with any urgency or speed as required.

53      I find this factor weighs against the acceptance of the application of out of time.

Conclusion

54      The Commission must be positively persuaded that the timeframe ought to be extended. That is, applications should be made within the prescribed timeframe unless there are acceptable reasons why this cannot be done.

55      I have considered the principles set out in Malik and I have not been positively persuaded that the timeframe for filing this application should be extended. The lack of a reasonable explanation for the delay, means I consider that it would not be unfair to the applicant to not accept her application filed out of time.

56      For the above reasons, I will refuse to accept the application out of time.