Angel Wales-Hawksley v Bonsapharm Pty Ltd & Echuca Rx Pty Limited [2026] FWC 1846

1 Fair Work Act 2009 s.394—Unfair dismissal Angel Wales-Hawksley v Bonsapharm Pty Ltd & Echuca Rx Pty Limited (U2026/5218) DEPUTY PRESIDENT BELL MELBOURNE, 3 JUNE 2026 Application for an unfair dismissal remedy - application filed out of time – representative error - no exceptional circumstances - application dismissed. [1] The applicant, Angel Wales-Hawksley, was employed by the respondent at a pharmacy in Echuca, Victoria from 9 May 2024 (and also, for a shorter period, with the previous owner) until October 2025 when she was dismissed. The parties’ joint position is the date the dismissal took effect was 21 October 2025, which I accept. On 18 March 2026, Ms Wales-Hawksley filed an application for an unfair dismissal remedy. The application is approximately 4 months’ late, given that s 394(2) of the Fair Work Act 2009 (Cth) (Act) requires unfair dismissal applications to be made within 21 days after the dismissal took effect unless the Commission concludes there are ‘exceptional circumstances’ warranting an extension of time. [2] The lateness was acknowledged in Ms Wales-Hawksley’s Form F2 application, which had been prepared on her behalf by her union, the Shop, Distributive & Allied Employees Association (SDA). The SDA submits the lateness was due to representative errors on its behalf. [3] For the reasons that I provide below, some but not all fault for the lateness ought be laid at the feet of the SDA. Also for the reasons that I provide below, I am not satisfied that there are ‘exceptional circumstances’ as is required by s 394(3) of the Act. [4] Upon the matter being allocated to me, I issued directions requiring Ms Wales- Hawksley to file any evidence and submissions she wished to rely upon. She filed a witness statement on her own behalf and also relies upon a witness statement from Mr Zach Steenhuis, who is an Industrial Officer with the SDA. [5] I also directed her to produce a copy of all communications (e.g. emails or messages), dates of oral communications, and attempts to communicate (e.g. telephone calls) between herself and the SDA referring to or about the commencement of her unfair dismissal claim. Communications after the commencement of her claim were excluded, as were parts of any communication dealing solely with advice received by Ms Wales-Hawksley concerning the substantive merits of her claim. [2026] FWC 1846 DECISION -- 1 of 9 -- [2026] FWC 1846 2 [6] No specific material was filed in response to my direction regarding communication, although Ms Wales-Hawksley addressed some matters at a high level in her statement. Another email was attached to the witness statement of Mr Steenhuis that describes some other communications. I describe these below. Ms Wales-Hawksley had attempted, unsuccessfully, to obtain her telephone call records but was told itemised calls were not available. As to the call log on her mobile telephone, she replaced her telephone in February 2026 (and there were no relevant calls in that period). Section 394(3)(a) - Reason for the delay [7] On 16 August 2025, Ms Wales-Hawksley received a written warning concerning her employment. It is unnecessary to set out in detail, but it was expressed to be on the basis of absences, lateness, inability to follow instructions, and inability to stay on tasks. [8] Evidently, from the employer’s perspective, matters did not improve. On 7 October 2025, a meeting between the employer and Ms Wales-Hawksley appears to have been scheduled. Mr Ethan Warren, who was (and still is) an organiser for the SDA attended as Ms Wales-Hawksley’s representative. His attendance is described in an internal SDA email he sent on 22 October 2025 (to which I will return). [9] At the end of the meeting, Ms Wales-Hawksley was issued with a notice of termination for her employment, which was broadly expressed to be on the same basis as the warning. The letter of termination stated that her final day of employment was 21 October 2025. On the same day, Ms Wales-Hawksley forwarded a copy of the warning email from 16 August 2025 to Mr Warren. [10] The following day, Ms Wales-Hawksley acknowledged receipt of the termination letter and sought clarification as to whether she was required to work out her notice period or not – the employer did not require to her to work out the notice period. [11] In accordance with the letter of termination, Ms Wales-Hawksley’s employment ended on 21 October 2025. [12] Ms Wales-Hawksley’s Form F2 application form was prepared by the SDA. It states Ms Wales-Hawksley “instructed” the SDA to pursue an unfair dismissal application and the “Applicant explicitly indicated this to the SDA on or around 21 October 2025.” [13] There is no direct evidence from anyone about communications between Ms Wales- Hawksley and the SDA at around this time or up until 17 March 2026. [14] Ms Wales-Hawksley’s evidence is scant. Her witness statement describes the period at around her dismissal. She states she “understood” the SDA was taking the “necessary steps to progress my unfair dismissal matter”. She also says “During this period”, she “believed” an application had been filed on her behalf. Ms Wales-Hawksley’s evidence indicates her only dealings with the SDA at the time were through Mr Warren. -- 2 of 9 -- [2026] FWC 1846 3 [15] On 22 October 2025, Mr Warren sent an internal SDA email with a ‘yellow form’ request for Ms Wales-Hawksley’s case. A ‘yellow form’ is the procedure used in the SDA to describe the administrative process where an Organiser, such as Mr Warren, wishes to commence an unfair dismissal application on behalf of a member. That was not a decision Mr Warren himself had authority to do. Mr Warren’s email was sent to a Senior Organiser. [16] On 27 October 2025, the Senior Organiser, in turn, forwarded it under a cover email to an Assistant State Secretary of the SDA. That email incorrectly assumed the date of dismissal was 7 October 2025 and that the statutory filing deadline for an unfair dismissal application was 27 October 2025. The email also: • Stated that the “Member was undecided on her options and notified very late”. • Stated the “Member is seeking her Cert 4 training to be signed off by owner so it can assist in future employment”. The email opined the employer was being “difficult” for this. • Asked to “refer this to Industrial for their advice and possibly lodgement for UFD”. In the latter respect, the email expressed the view “Procedural fairness was not applied from the company. Our member was effectively gagged in the meeting and not given any opportunity to respond.” [17] At 1.42pm, the Assistant State Secretary responded to the Senior Organiser, copying in Mr Warren and others. They gave instructions for Mr Warren and the member to be contacted to get more information. The email also stated the SDA can file an unfair dismissal application on the basis of “procedural fairness.” It explained “This is simply to preserve the right of the member to continue to get her cert IV signed by the employer. Though I feel it will be a weak case. Hopefully, give us time to argue for the Cert IV.” Mr Steenhuis was copied to the email. [18] Mr Steenhuis responded about an hour later pointing out (correctly) that the date of dismissal was in fact 21 October 2025, not 7 October 2025. [19] The next relevant email in the chain was from the Senior Organiser at 5.05pm to the Assistant State Secretary, who stated “The member is seeking only to have her cert4 signed off by the company and given to her, my belief is the company is not complying with this request.” He also stated “I’m glad the termination date is set for 21st as all I am seeking is more time to try and get this cert 4.” Mr Warren was not copied to this email, although Mr Steenhuis was. [20] The final email in the chain was from the Assistant State Secretary, who responded to the 5.05pm email by thanking the Senior Organiser and stating “That’s our strategy. We have some time now.” Mr Warren was not copied to this email, although Mr Steenhuis was. [21] Although Mr Warren was not copied into the final emails in the chain described above, there is no reason to consider (and certainly no evidence before me) to indicate he was unaware of the conclusions arrived at and the strategy proposed. [22] Mr Steenhuis’ evidence is that he interpreted the email chain summarised above to mean that an unfair dismissal action did not need to be lodged based on the assumption that “the member’s objective was limited to obtaining her Certificate IV” and that the Senior Organiser was seeking to resolve that issue on her behalf. Mr Steenhuis quite candidly – and I consider commendably – laid fault for the lateness at his own feet, although I do not consider it is as -- 3 of 9 -- [2026] FWC 1846 4 clear as he presents. No one contacted him prior to the lodgement date of 11 November 2025 to provide further information relevant (and as had been requested) to complete the Form F2. His only contact after the lodgement date was by email “Approximately one month later” from Mr Warren seeking a status update. Mr Steenhuis advised Mr Warren that he understood the Senior Organiser to be handling the matter. He received no other contact after. Consistent with that belief, Mr Steenhuis did not seek to prepare an unfair dismissal application until Ms Wales- Hawksley contacted the SDA on 17 March 2026 and the application was filed the next day. [23] Despite the scantness of any direct evidence of instructions from Ms Wales-Hawksley to the SDA, I am comfortably satisfied that some communication occurred, most likely by telephone with Mr Warren or in person after the meeting on 7 October 2025 concerning an unfair dismissal application. [24] I also conclude that there was some further discussion on 21 or 27 October 2025 concerning a possible unfair dismissal application and options to obtain the “Cert IV” sign off. I infer this based on the flurry of internal SDA communications, which refer to the Member having been “undecided” on her options. [25] At the hearing of the matter, the SDA and Ms Wales-Hawksley also referred to conversations between Ms Wales-Hawksley and Mr Warren in November 2025. The details are again very vague. She refers to speaking over the telephone with Mr Warren where they filled out information together for her unfair dismissal issue and Mr Warren said he would process it. The timing for this was unclear – possibly October or maybe November 2025 according to Ms Wales-Hawksley. The better view is that it was in around 21 October 2025, which is when Mr Warren completed the ‘yellow form’ for internal SDA assessment. If Mr Warren was continuing to get further detail after 27 October 2025 for an unfair dismissal application, he would have presumably fed that information back to the SDA industrial team (who was the team responsible for making the actual application) but there is no evidence he did so. [26] Despite the scantness of this additional evidence, I accept that there were also some further discussions between Ms Wales-Hawksley and Mr Warren in November 2025, although no persuasive detail is available. Having regard to the “strategy” laid down to get “more time to try and get this cert 4”, I also infer it is likely that Mr Warren spoke with Ms Wales-Hawksley shortly after 27 October 2025 or in the following couple of weeks and, in doing so, communicated that “strategy”. Possibly also by the end of November 2025, Ms Wales- Hawksley asked Mr Warren for an update. While we know that Mr Warren in turn sought an update from Mr Steenhuis (who referred him to the Senior Organiser), nothing is known about what happened next. [27] Ms Wales-Hawksley also says in her statement that Mr Warren “advised” her the “matter was being dealt with and might take a while.” Again, no time period was given for this advice but it could only have been given by around mid-November 2025 at the latest. [28] Nonetheless, it is from these matters that I accept why Ms Wales-Hawksley “understood” an unfair dismissal application had been lodged on her behalf on or around late October 2025 or to mid November 2025. I also accept that the SDA had done enough to convey to Ms Wales-Hawksley that it had accepted responsibility to lodge an unfair dismissal -- 4 of 9 -- [2026] FWC 1846 5 application for her at the time and did not do so. So much can be accepted as representative error. [29] The SDA referred to a decision of the Full Bench of the Australian Industrial Relations Commission in Clark v Ringwood Private Hospital (1997) 74 IR 413 (Clark). Clark has been referred to by the Commission on many occasions. In Long v Keolis Downer (t as Yarra Trams) (2018) 279 IR 361 (Long), a Full Bench of the Commission cited, with evident approval, a summary of Clark given in Davidson v Aboriginal and Islander Child Care Agency (1998) 105 IR 1. The summary was as follows: “In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay: (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 considered.” [30] As to the above passage, the Full Bench in Long clarified that passage was not setting out a general principle to the effect that little is required to satisfy the Commission that an applicant was blameless in the delay. Rather, depending on the circumstances, “little might be required”. The Full Bench in Long, albeit in obiter dicta, made clear that an applicant cannot simply instruct his or her solicitor then “sit on his hands for an extended period” while the prescribed time for filing the application passes by. [31] In the case before me, I might be more persuaded to accept that the cause of the delay in filing the unfair dismissal application was solely due to representative delay had the application been filed at some point in November 2025 even if late (noting the last date for lodgement was 11 November 2025). It is unnecessary to specify any exact date. -- 5 of 9 -- [2026] FWC 1846 6 [32] The last relevant discussion between the SDA and Ms Wales-Hawksley took place at some point (the timing is vague) in November 2025 on some topic about her dismissal and what she was seeking (the details are vaguer) with a possible assurance that “the matter” might take some time. Then from Ms Wales-Hawksley’s position, December 2025 elapses with silence, January 2026 elapses, February 2026 elapses and half of March 2026 elapses all with no further curiosity or inquiry by Ms Wales-Hawksley about her claim before she contacts the SDA. [33] I consider it would be incorrect to attribute the sole or predominant reason for the delay that actually occurred, let alone most of it, to the SDA. A significant element of the delay was due to Ms Wales-Hawksley neglecting to take any steps to follow up on her unfair dismissal claim or the pursuit of her Certificate IV issue (either of which would have no doubt triggered an awareness within the SDA that her unfair dismissal claim had not been lodged in light of the “strategy” in place.) [34] Ms Wales-Hawksley also states she was unaware of any filing deadline. I accept this is the case, although it is well-established that mere ignorance of a filing deadline is not, without more, a factor supporting an overall conclusion of exceptional circumstances. [35] In all the circumstances, the reason for delay is not a matter I consider supports an overall finding of exceptional circumstances. Section 394(3)(b) - Did the Applicant first become aware of the dismissal after it had taken effect? [36] There is no dispute that Ms Wales-Hawksley was aware of the dismissal on the day it took effect and she was given two weeks’ notice beforehand. Therefore, she had the benefit of the full period of 21 days to lodge the unfair dismissal application. [37] I do not consider these are circumstances supportive of an overall finding of exceptional circumstances. Section 394(3)(c) - What action was taken by the Applicant to dispute the dismissal? [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.1 [39] Ms Wales-Hawksley submits that she “reasonably believed” that the SDA had taken steps to contest the termination of her employment. I do not consider these are circumstances supportive of an overall finding of exceptional circumstances. Section 394(3)(d) - What is the prejudice to the employer (including prejudice caused by the delay)? [40] The employer did not submit it would suffer any prejudice caused by the delay and, 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. -- 6 of 9 -- [2026] FWC 1846 7 [41] In Jovcic v Coopers Brewery Limited [2023] FCA 797, Besanko J stated that “The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.” While his Honour’s observations were made in the context of an application to extend time for an appeal (in which exceptional circumstances were not required), I nonetheless consider that they are generally informative for an application to extend time under s 394. [42] The mere absence of prejudice is not, of itself, a matter supportive of a conclusion that exceptional circumstances exist such that time should be extended. I do not consider that this factor is supportive of a finding of exceptional circumstances but neither does it point against it. I treat the factor neutrally. Section 394(3)(e) - What are the merits of the application? [43] Ms Wales-Hawksley submits that there is an “absence” of a valid reason for dismissal and a “clear failure” to afford procedural fairness. I do not consider that the position is as clear as Ms Wales-Hawksley presents. First, in Ms Wales-Hawksley’s Form F2 application: • she herself “acknowledges that a warning may have been warranted in relation to the language used” but does state this is not a valid reason for dismissal. • she acknowledges incidents of “lateness” but says these were “minor” and do not create a valid reason for dismissal. • she disputes the allegations of “performance issues” and says the employer failed to properly raise these with her and to give her an opportunity to respond. [44] Second, and somewhat belying the position just stated, the internal assessment by the SDA describes her claim as a “weak” case, albeit in the context of a very early impression and in the absence of other information that was yet to be obtained. This apparent weakness is emphasised by the internal correspondence that appears to indicate that the unfair dismissal application was made primarily for the collateral purpose of pursuing the Certificate IV objective, and not on the strength of the unfair dismissal claim itself. [45] Nonetheless, 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)”2 and the same applies to s 394(3)(e). While I consider that Ms Wales-Hawksley’s unfair dismissal claim may well have some difficulties, the merits of her claim is a matter that I will treat neutrally between the parties. Section 394(3)(f) - Fairness as between the Applicant and other persons in a similar position [46] Neither party raised any material matter before me to indicate any issue of fairness between Ms Wales-Hawksley and other persons in a similar position. [47] For the purpose of this application, I consider that this is a matter to be treated neutrally. -- 7 of 9 -- [2026] FWC 1846 8 Conclusion [48] In order for the Commission to allow this further period of time, it must be satisfied that there were ‘exceptional circumstances’ which led to the application being made outside of the time frame. Exceptional means that the circumstances were out of the ordinary course, unusual, special or uncommon (Nulty v Blue Star Group (2011) 203 IR 1 at [13]). 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 [49] The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree and insight. 4 [50] I have set out my findings for each of the factors in s 394(3)(a) – (f) above. [51] 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. [52] 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 Order5 to this effect will be issued in conjunction with this decision. DEPUTY PRESIDENT Appearances: A. Lay of the Shop, Distributive and Allied Employees Association for the Applicant. B. Ahmed from the Respondent. Determinative conference details: 2026. Melbourne (by video link via Microsoft Teams): May 21. Printed by authority of the Commonwealth Government Printer <PR810225> 1 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298. -- 8 of 9 -- [2026] FWC 1846 9 2 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36]. 3 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. 4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 5 PR810226. -- 9 of 9 --