s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether dismissed - whether employee of the Respondent - extension of time issue arising

• [1] On 31 July 2025, Ms Tepe applied for an unfair dismissal remedy under section 394 of the Fair Work Act (Cth) (the Act) in relation to her alleged employment with John Normyle Pty Ltd (John Normyle). Under s.394, a person who has been dismissed may apply to the Commission for an unfair dismissal remedy. Application must usually be made within 21 days after the dismissal took effect. The Respondent objects to the application on the basis that Ms Tepe was not an employee.

• [2] During a hearing to deal with the objection, it became apparent that the application may not have been filed in time. Ms Tepe's application alleged that she was dismissed on 10 July 2025, but the supporting material indicates that this may have been a mistake, because the events relied upon as constituting the dismissal occurred one week earlier on 3 July 2025. If the alleged dismissal occurred on 3 July 2025, the application was filed 7 days late and an extension of time is required for the application to proceed.

• [3] This decision deals with the extension of time issue. I have not yet decided if in fact Ms Tepe was dismissed. That requires consideration of whether Ms Tepe was an employee or contractor, and if she was an employee, the identity of her employer. All parties agree that Ms Tepe performed work in connection with the business of John Normyle and another entity, Noff Haus Studios Pty Ltd. It is not necessary to determine the nature of the relationship between Ms Tepe and John Normyle for the purpose of deciding whether to allow time for the application to be made. That issue can be resolved by reference to when the arrangement that is the subject of this application came to an end.

• [4] Ms Tepe worked under a 'Consultant Contract' with James Andrew Oulianoff t/a Noff Haus Studios from 13 June 2023. Mr Oulianoff registered the business known as Noff Haus Studios Pty Ltd on 14 December 2023. On 29 May 2025, Ms Tepe entered into a further 'Independent Contractor Agreement' with Noff Haus Studios Pty Ltd. Work performed in connection with these contracts was based at 94 William St, Paddington NSW. Mr John Normyle is the owner of the building. He also works from the building in his own business (and the respondent to this proceeding), John Normyle Pty Ltd. Ms Tepe says she worked for both Mr Oulianoff and Mr Normyle.

• [5] On 3 July 2025, Mr Oulianoff approached Ms Tepe and told her that she was no longer required there. He said, 'John doesn't want to work with you'. Ms Tepe said that she wanted to 'hear it from John'. Mr Normyle then spoke to Ms Tepe and said, 'I don't want to work with you'.

• [6] Ms Tepe could not believe what she was hearing. She said that there was a pre-arranged meeting scheduled to commence shortly downstairs, and that she would be waiting downstairs. She then went downstairs (it seems, alone). When the meeting eventually proceeded, it did not go well. Mr Normyle ended up walking away. Ms Tepe discovered later that day that her computer had been locked. She asked for access to finish up her paperwork and this was agreed. She spent some time that afternoon collecting information from the computer that she thought she might need. Ms Tepe did not work for either Mr Normyle or Mr Oulianoff again.

• [7] On 4 July 2025, Ms Tepe attended the office building and announced that she was there to get her 'stuff'. Mr Oulianoff asked for her keys to the building, but she refused to hand them over on the basis that they belonged to Mr Normyle as the building owner.

• [8] On 10 July 2025, Ms Tepe attended the office building again to discuss payment of her final invoices, hand over the keys and request a reference. Ms Tepe considered this to be the date that her relationship with Mr Normyle came to an end.

• [9] I find that the arrangement as between Ms Tepe, John Normyle and Noff Haus Studios Pty Ltd came to an end on 3 July 2025. On this date it was clearly communicated to Ms Tepe that she was no longer required, and that neither Mr Oulianoff nor Mr Normyle wanted to work with her anymore. Ms Tepe did not perform any more work for either person or their respective businesses after that time. Steps taken in the following days to address issues such as return of property, final payment of invoices and provision of a reference were all matters antecedent to the cessation of the arrangement. The consequence of this finding is that Ms Tepe's application was required to be filed by 24 July 2025. The application is 7 days late.

• [10] Additional time may be allowed for an application to be made under s.394(2) of the Act if the Commission is satisfied that there are exceptional circumstances and that an extension of time is appropriate. In reaching the state of satisfaction as to whether there are exceptional circumstances for the purpose of extending the time to apply for an unfair dismissal remedy, it is necessary to consider each of the matters listed in s.394(3) of the Act. These are:

(a) the reason for the delay,

(b) whether the person first became aware of the dismissal after it had taken effect,

(c) any action taken by the person to dispute the dismissal,

(d) prejudice to the employer (including prejudice caused by the delay),

(e) the merits of the application, and

(f) fairness as between the person and other persons in a similar position.

• [11] In this case, the reason for the delay is attributable both to Ms Tepe's wrong understanding of the alleged dismissal date and to representative error. It is no criticism of Ms Tepe to say that she was unsure about the legal effect of the events of 3-10 July 2025. For this reason, Ms Tepe sought advice about her options. Her former representative in this proceeding, trading as 'Australian Dismissal Services in association with Law on Lydiard', did not give her good advice. It assured Ms Tepe that 10 July 2025 was the date of dismissal. In giving this advice, it does not appear to have given any adequate consideration to the fundamental questions of whether Ms Tepe had in fact been dismissed, or who by, or when.

• [12] The application made on Ms Tepe's behalf asserted that it was made in time. I accept Ms Tepe's submission that she told her representative about the events of 3 July 2025 before her application was filed. The representative was in a position to know that the application might be out of time, and that more research or inquiries may be warranted. This is not a case where the application needed to be filed so urgently that no such inquiries could reasonably have been undertaken. Ms Tepe contacted her representatives on or about 18 July 2025 and spoke with 'Connor' of Australian Dismissal Services on 21 July 2025. There was time to get adequate instructions and file the application within the 21-day filing period.

• [13] On balance, I find the reason for delay in relation to representative error to be both an acceptable reason and one that weighs in favour of a finding of exceptional circumstances. Ignorance of the law is not an acceptable reason for the delay and would not weigh in favour of such a finding.

• [14] Ms Tepe became aware of the alleged dismissal at the time that it took effect during her conversations with Mr Normyle and Mr Oulianoff on 3 July 2025. This weighs against a finding of exceptional circumstances.

• [15] At the prompting of acquaintances, Ms Tepe took some action to dispute the alleged dismissal by creating an online account with the Commission on 18 July 2025 (although no application was lodged at that time). She separately made inquiries of entities marketing their services in unfair dismissal matters. Australian Dismissal Services was first to respond to her query and did so on 21 July 2025. It told her that she had a strong case and prepared the application for an unfair dismissal remedy before filing the application on 31 July 2025. These are not matters weighing in favour of a finding of exceptional circumstances.

• [16] There is some apparent prejudice to John Normyle if the application proceeds 7 days late, in circumstances where the late filing of the application was only identified when the matter proceeded to hearing on a separate jurisdictional issue. Mr Normyle is 77 years old and is still working 5 days a week. The delay in bringing this matter to hearing has taken a toll and will mean the time taken to deal with the case will be longer than would ordinarily be expected. Even so, Mr Normyle was involved in the events of both 3 and 10 July 2025. He was in a position to know what happened that day, and to raise an objection on the timeliness of the application had he wished to do so when the response to the application was filed. On balance, the question of prejudice is a neutral consideration.

• [17] The merits of the case are impossible to assess at this stage because of the various issues that arise. The first of these is whether Ms Tepe was in an employment relationship with John Normyle at all. John Normyle says that the work relationship in question was between Ms Tepe and Noff Haus Studios Pty Ltd. The nature of that relationship, and whether it was one of employment or contracting, is in issue and requires consideration of the new definition of employee in s.15AA of the Act. Depending on how that issue is decided, a further question may arise as to whether Ms Tepe has completed the minimum employment period. If jurisdiction is found to deal with the application, there is apparent merit to Ms Tepe's claim to the extent that the work relationship appears to have ended rather perfunctorily with deleterious consequences for Ms Tepe. At this stage of the proceeding, the merits are a neutral consideration.

• [18] Fairness as between Ms Tepe and others does not appear to be a relevant consideration.

• [19] On balance, I find exceptional circumstances arising from representative error, and that this outweighs the fact that Ms Tepe knew about the events of 3 July 2025 when they occurred. The other matters are either not relevant or are neutral considerations. I consider it appropriate to allow additional time for Ms Tepe to make her application to the Commission.

• [20] The time within which the application is to be made is extended to 31 July 2025.

Ms H Mills of Workplace Lawyers on behalf of the respondent.

Printed by authority of the Commonwealth Government Printer