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[2026] FWC 560
General information, not legal advice.
Fair Work Commission
2026-02-23
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 23 February 2026.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - effective date of dismissal - application out of time - extension granted
[2] SSAA objects to the application. It submits that Mr Burton was not dismissed. In the alternative if Mr Burton was dismissed, it says the application is out of time and there are no exceptional circumstances that would permit an extension of time.
[4] I have decided that Mr Burton was dismissed on 21 October 2025. His application is 21 days late. I have also decided that in the circumstances, it is appropriate to allow an extension of time for the application to be made. These are my reasons.
[5] On 13 April 2022, Mr Burton commenced casual employment as a Customer Service Officer/Range Officer with SSAA. His employment involved regularly working 5-6 days per weeks, often for shifts of more than 10 hours. After some time in the role, he was moved to a backend/warehouse role and later to 'Try shooting', assisting customers trying out the shooting range for the first time. The move to try shooting came after a request for conversion from casual to full-time employment was refused.
[6] On 27 November 2024, Mr Burton worked in try shooting on what would become his last shift with SSAA. The following day he attended for work and discovered that he had been removed from the roster. The retail manager of SSAA, Mr Con Dimitriadis, told him that he 'should have checked the app' - a reference to Employment Hero, used by SSAA for rostering and other purposes. Mr Dimitriadis also told him that there was 'other stuff' he would be put on at a later time.
[7] At a date unknown but after 28 November 2024, SSAA decided not to roster Mr Burton for any more shifts. It did not communicate this message to Mr Burton. Between 28 November 2024 and 21 October 2025, there were ongoing communications to Mr Burton from SSAA - some in the nature of general staff communications and others in the nature of direct exchanges with Mr Dimitriadis and SSAA's human resources function about the possibility of future shifts and concerns held by Mr Burton in relation to his employment. Mr Burton attended the SSAA facility in his capacity as a staff member on a number of occasions and retained his access to staff lockers where he stored a firearm and other possessions. He lived in a rental property owned by SSAA or one of its related entities at a rifle range in Silverdale, NSW.
[8] On or about 9 July 2025, Mr Burton's access to the Employment Hero app was removed and he was sent an automatic 'offboarding' notice. The contents of the notice are not in evidence. The offboarding appears to have occurred around the same time as an incident involving one of SSAA's employees that gave rise to proceedings in the NSW Civil and Administrative Tribunal (NCAT).
[9] In August 2025, Mr Burton commenced work on a 'fly in fly out' basis for a mine site in South Australia, working on a '2 weeks on, 1 week off' roster.
[10] Mr Burton was given notice to vacate his rental property at Silverdale and on 8 October 2025 started moving out of the property. On 9 October 2025, Mr Burton moved some of his property into storage and then flew to Adelaide for work. Although he started looking for another place to live, he ultimately decided not to pursue the option as it made financial sense to camp for the 1 week out of 3 that he was not living on site as part of his fly in fly out job.
[11] On 21 October 2025, SSAA sent Mr Burton an email about emptying his staff lockers. Although the email may not have been for the sole or even actual purpose of communicating the status of his employment to Mr Burton, it included the following sentence:
"You are advised you have seven 7 days to vacate these lockers as your employment with SSAA PTY LTD has ceased and you are not eligible for employee benefits."
[12] On 24 October 2025, Mr Burton returned to Sydney. During his week off, he went to SSAA to retrieve his remaining property from the rental at Silverdale. He found his things had all been removed, and before departing, left his key in the door.
[13] On 27 October 2025, Mr Burton saw the email from SSAA of 21 October 2025. He replied to SSAA stating:
"Thank you for your offical [sic] notice of termination.
I am writing you to inform you off my intention to seek unfair dismissal.
I will be bring [sic] up my complaints of bulling [sic] and sexual harassment that have been ignored by HR."
[14] On 30 October 2025, Mr Burton flew to Adelaide for work.
[15] On 10 November 2025, Mr Burton applied to the Commission for a remedy for unlawful termination under s.773 of the Act. On the same day, the Commission wrote to Mr Burton to confirm receipt of the application and explain that he may not be eligible to apply. The letter from the Commission emphasised that Mr Burton only had 21 days from the date of dismissal to 'withdraw your unlawful termination application and lodge a new application'. Mr Burton read the letter in part, but not in full.
[16] On 24 November 2025, Mr Burton applied to the Commission for an unfair dismissal remedy. In a phone call with the Commission registry on 1 December 2025, Mr Burton decided to discontinue the application as well as the unlawful termination application lodged two weeks earlier.
[17] On 2 December 2025, Mr Burton lodged this application.
[18] SSAA submits that Mr Burton was not dismissed. It says that his casual employment contract simply came to an end at the end of his shift on 27 November 2024. Although it concedes that a decision was taken not to offer him any more shifts, and that he was 'offboarded' by Employment Hero in July 2025, it does not concede any termination at the initiative of the employer. The email of 21 October 2025 is described as being for a purpose unrelated to the termination of Mr Burton's employment.
[19] I accept that SSAA stopped offering Mr Burton casual shifts after 27 November 2024. The evidence is that this decision was not communicated to Mr Burton. Instead, Mr Dimitriades 'dangled' the prospect of future shifts in front of Mr Burton for almost 9 months. In this context, the email of 21 October 2025 was the first and only clear communication to Mr Burton that his employment with SSAA had ceased.
"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."[4] [Emphasis added]
[22] Section 394(3) of the Act sets out the matters that must be taken into account in considering whether there are exceptional circumstances. These are:
[23] Reason for delay: The reason for the delay in applying to the Commission is that Mr Burton first applied under s.773 of the Act (unlawful termination of a non-national system employee); then applied under s.394 (contrary to the prohibition in s.725 of the Act) and after discontinuing both applications, lodged this application. Procedural errors in the commencement of legal action are relatively common rather than exceptional circumstances. Mr Burton had the information he needed to understand what was required. He did not read it all, for reasons explained largely by reference to his mental health condition (discussed further below). I do not have medical evidence of the condition, but I accept Mr Burton's evidence that he has attention-deficit hyperactivity disorder (ADHD) and this was first diagnosed when he was a child. Mr Burton sees a psychiatrist every 6 months and takes medication for the condition to assist with daily functioning and activities such as study. I am not persuaded from the submissions that this condition prevented Mr Burton from reading information provided to him as well as additional information available on the Commission's website about applying to the Commission for an unfair dismissal remedy. Mr Burton made one attempt to obtain legal advice but otherwise decided to rely on his own research. The procedural errors do not weigh in favour of exceptional circumstances.
[24] Whether the person first became aware of the dismissal after it had taken effect: Mr Burton only became aware of the dismissal on 27 October 2025 when he read the email from SSAA. For what appears to be a substantial part of the previous 11 months, SSAA had decided not to roster Mr Burton for work anymore, had not communicated the decision to Mr Burton, and had led him to believe that he was still employed. These matters weigh in favour of a finding of exceptional circumstances.
[25] Any action taken by the person to dispute the dismissal: On 27 October 2025 (the same day that Mr Burton became aware of his dismissal), he wrote to SSAA about his intention to seek unfair dismissal. He then waited until 10 November 2025 to apply to the Commission. In part, the distance between the two events is explained by Mr Burton's living arrangements at the time, and his related access to the internet and mobile phone reception. On 27 October 2025, Mr Burton was camping (not for holiday, but as part of his ordinary living arrangements, having recently been required to vacate a rental property connected to SSAA). On 30 October 2025, Mr Burton flew to Adelaide for work. He was at the mine site for two weeks until 14 November 2025. During this time, Mr Burton had better phone reception and more stable access to the internet. He spent time preparing for, and lodging, the first of his applications to the Commission.
[26] On 24 November 2025 when the second application was lodged, Mr Burton says he was at the mine site. If so, he was in a better position to complete the task because of access to stable internet. However, information about his flight details over this period place him away from the mine site, and likely camping, during this time. In the absence of documentary evidence on these matters, I am unable to be sure.
[27] On 1 December 2025, Mr Burton was back at the mine site. He had a lengthy conversation with the Commission over the telephone, during which he decided to discontinue the first and second applications. On 2 December 2025, Mr Burton lodged his (third) application in the Commission while still at the mine site. Together, the action taken by Mr Burton to dispute the dismissal after 27 October 2025 weighs in favour of a finding of exceptional circumstances.
[28] Prejudice to the employer (including prejudice caused by the delay): There is some prejudice to SSAA if the application proceeds. Mr Burton last worked more than 12 months ago, and the quality of memory of witnesses is likely to have faded over time. Further, a former manager of Mr Burton who might have been called to give evidence is no longer employed. On the other hand, two key witnesses remain in the business, and the use of Employment Hero means that SSAA is likely to have at least some good evidence of hours of work, rostering arrangements and other employment matters relevant to the circumstances of dismissal of Mr Burton. A submission about prejudice arising from the potential for additional scrutiny on SSAA's management of its casual workforce is rejected. On balance, there is a degree of prejudice to SSAA if the matter proceeds and this weighs against a finding of exceptional circumstances.
[29] Merits of the application: The case advanced by Mr Burton is arguably a strong one: it involves an allegation of unlawful termination because of a request for casual conversion and complaints about his employment. Mr Burton effectively submits that SSAA took adverse action against him including removing him from the roster, deciding to dismiss him but not telling him, and misleading him for approximately 9 months about the prospect of further work before finally confirming his dismissal. SSAA does not appear to dispute many of the facts about changes in Mr Burton's working arrangements over time. It does dispute the reasons for those changes and denies the allegations made by Mr Burton. Accepting that the information before me is quite limited, the merits weigh in favour of a finding of exceptional circumstances.
[30] Fairness as between the person and other persons in a similar position: This is not a relevant consideration in the circumstances of this case.
[31] On balance, I am satisfied that there are exceptional circumstances in this case and that it is appropriate that an extension of time be allowed so that the application can proceed. The reasons for delay are unexceptional, and SSAA may be exposed to a degree of prejudice in connection with the delay, although some of that prejudice is attributable to its own delay in confirming the status of Mr Burton's employment in the period from when he ceased work on 27 November 2024 until 21 October 2025, approximately 11 months later. Mr Burton's mental health condition and living arrangements at the time of dismissal and his reasonably prompt action to dispute the dismissal once it became known, as well as the apparent strength of his case are matters that in combination make the circumstances exceptional.
[32] The time for filing of the application in U2025/18991 is extended to 2 December 2025. Directions will issue shortly for the further programming of the matter.
[1] Fair Work Act 2009 (Cth), s 394(2)
Printed by authority of the Commonwealth Government Printer
Alexander Burton
SSAA Pty Ltd