s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - objection that application made out of time - date dismissal took effect - communication of dismissal - objection dismissed.

• [1] Mr. Ali Dian has made an application under s.394 of the Fair Work Act 2009 (Cth) (Act) for a remedy for unfair dismissal. The respondent is the applicant's former employer, the University of New South Wales (respondent, or UNSW). Section 394(2) of the Act requires that applications of this kind be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). The respondent took a number of objections to the application, including that it had been made outside the 21-day time period referred to in s.394(2). I determined that I would deal with that objection as a discrete issue. For the reasons I give below, I conclude that the applicant's dismissal took effect on 8 July 2025. The application was filed on 22 July 2025. The application was therefore filed within time and the objection that the application was made out of time will be dismissed.

• [2] The applicant was engaged by UNSW as a casual academic in the University's Arts, Design and Architecture Faculty. The applicant performed work for the University as a tutor. His most recent contract of employment commenced on 10 April 2025. The applicant had previously worked as a casual employee for the respondent under similar but separate contractual arrangements. The statement of duties relating to his engagement in 2025 said that the anticipated commencement and end dates would be 19 May and 29 August 2025 respectively. The statement said that it was anticipated that the applicant would be allocated 27 hours of work during that period. The statement referred to a course with the course code BLDG3013.

• [3] The first week of the academic term for which the applicant was engaged to work ended on 6 June 2025.

• [4] On the morning of 20 May 2025, the applicant was sent an email by Dr. Shirowzhan asking if the applicant would be available to assist with the marking of student material in one of the University's courses with the course code CONS0005. Dr. Shirowzhan was a lecturer and apparently responsible for organising the arrangements for the classes the applicant was engaged to tutor. The applicant confirmed his availability for marking duties later that day.

• [5] Later on the same day, Dr. Shirowzhan removed the applicant from a 'group chat' that included the applicant and other tutors. This occurred because of reduced student enrolments and an instruction to Dr. Shirowzhan that the applicant's hours be reduced to zero. There was no communication by Dr. Shirowzhan to the applicant about these matters or any other matters related to the applicant's employment following the removal of the applicant from the group chat.

• [6] On 3 June 2025 the applicant emailed Dr. Shirowzhan saying he was unsure about his classes and noting that he had been removed from the group chat. He sought clarification of his position. He received no response.

• [7] On 16 June 2025 the applicant sent a text message to Dr. Shirowzhan in the following terms:

Hi Sara, I hope your family are well in Iran. I understand that I do not have any tutorial classes this semester as I was removed from the tutors' chat group. It was a pleasure working with you. Wishing you all the best.

• [8] The applicant did not receive a response to the text message. He did not undertake any tutoring work.

• [9] On 7 July 2025 the applicant wrote to the Head of School, Mr. Oldfield, and another person, seeking assistance to resolve the issue with his tutoring engagement. He explained that he had been contracted to tutor a course but had been removed from the tutor group without explanation by the course lecturer and had been unable to obtain a response. He sought an explanation regarding his 'removal' and the lack of communication.

• [10] On 8 July 2025, Mr. Oldfield responded, relevantly, as follows:

I have spoken to Dr. Shirowzhan to better understand what has happened.

Originally BLDG3013 was set up with 11 tutorials, including a number of 'tentative' classes, due to uncertainty around the number of students. As these tentative classes were not filled, they were removed and as such, the tutoring capacity of the course was reduced. Due to this reason, Dr. Shirowzhan withdraw (sic) your statement of duties - however, she believed this would automatically send you a communication confirming this. This is not the case. I have spoken to Dr. Shirowzhan and advised her that her communication to you regarding this situation was unacceptable, and that I expect better communication from her towards her tutors in the future.

I do hope this clarifies what happened. As you note, you are free to escalate this, should you so wish. If so, I would advise you to review the UNSW complaints procedure here: (details omitted) Should you wish to make a complaint, I would advise you to jump to step 3.

• [11] The applicant contended that he was dismissed from his employment when he received the email from Mr. Oldfield. He said it was clear at this point that his services were no longer required for either tutoring or marking purposes and that he then took steps to lodge his application within the required time frame.

• [12] For the purposes of determining the out of time objection the respondent conceded that the applicant was dismissed for the purposes of the Act and submitted that the dismissal occurred when the applicant was removed from the chat group on 20 May 2025. The respondent submitted that the applicant was aware of his dismissal and the fact of his removal from the roster by 3 June 2025 or at the latest, 16 June 2025 when he sent the text message to Dr. Shirowzhan. The respondent made reference to the recent decision in Babana v. University of New South Wales[1] in which the Commission refused an extension of time for another tutor who had also been removed from a group chat by Dr. Shirowzhan.

• [13] The respondent's submissions must be rejected. A dismissal does not take effect unless and until it is communicated to the employee being dismissed.[2] The dismissal must be communicated in clear and certain terms.[3] Here there was no such communication of a dismissal on 20 May 2025. The applicant was simply removed from a group chat. The respondent accepted that there was no other form of communication from the University to the applicant after his removal from the group chat and prior to the correspondence between Mr. Oldfield and the applicant on 7 July 2025.

• [14] Dr. Shirowzhan did not give evidence. The applicant was a credible and forthright witness. I accept the applicant's evidence that the reasons for the removal from the group chat were unclear to him and that is why he sought clarification from Dr. Shirowzhan. The applicant said that changing chat groups was 'pretty normal' and he thought it possible that Dr. Shirowzhan was tutoring the initial classes in the semester herself and would later open a new chat group in which the allocation of classes would be discussed. I accept that evidence.

• [15] The evidence also shows that the applicant had accepted an offer from Dr. Shirowzhan to perform marking duties for the CONS0005 course. This was confirmed in writing by email exchanges between Dr. Shirowzhan and the applicant. Dr. Shirowzhan was presenting to the applicant as a person with the authority to enter into those arrangements. The applicant said, and I accept, that the previous practice had been that Dr. Shirowzhan had asked him to perform work in both courses and that he had done so. He said, and I accept, that he had previously prepared material for both courses and worked in the CONS0005 course using the working time he had been allocated for the BLDG3013 course. There was no indication from Dr. Shirowzhan or anyone else from the UNSW that the applicant would not be given the marking work at some later point in the semester, even if the tutoring work was no longer available. I also accept the applicant's explanation as to the text message of 16 June 2025, that is, even though he understood by that point that he would not have any tutorial classes, given the lack of communication from Dr. Shirowzhan, he was sending the message in the hope it would prompt a response from Dr. Shirowzhan confirming that he was still required for marking duties.

• [16] The respondent relied on the decision in Babana in support of a submission that the applicant had not taken steps to dispute the dismissal for the purposes of s.394(3)(c) of the Act. Because of the conclusion I have reached in relation to the date the dismissal took effect, that issue does not arise here. It is also apparent from the decision that the date the dismissal took effect was not in issue, or at least not argued, in that matter.[4] The decision is of no assistance to the respondent.

• [17] In my view the email communication from Mr. Oldfield is the relevant communication that triggered the dismissal. It indicates that the applicant's statement of duties has been withdrawn and that there had been a previous failure of communication by Dr. Shirowzhan. It is a termination on the employer's initiative in accordance with s.386(1)(a) of the Act. I conclude that the applicant dismissal took effect upon receipt of this email on 8 July 2025.

• [18] The out of time objection is dismissed. The matter will be relisted for further programming on a date to be determined.

By video using Microsoft Teams at 10:00am AEDT on Thursday, 2 October 2025.

[1] [2025] FWC 2648. The decision is presently the subject of an appeal.

[2] Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 at [24]. See also Ayub v. NSW Trains [2016] FWCFB 5500.

[4] Babana op cit at [7] and [10].

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