s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application filed 40 days out of time - extension not granted - application dismissed.

• [1] Ms Ayse Tugluk (the Applicant) asserts that she was dismissed from her employment with Disability Talk Pty Ltd (the Respondent). The Applicant was engaged by the Respondent as a casual disability support worker pursuant to an employment agreement she signed on 11 November 2024. The employment agreement outlined that the Applicant's casual employment was to commence on 12 November 2024 "until terminated in accordance with this agreement" and its clause 18 provided that as the Applicant was a casual employee, she was not entitled to be given and was not required to give notice of termination.

• [2] The Applicant says that on or about 9 May 2025, she had a discussion with Ms Alma Garcia-Martinez, whom she thought was her manager at the time, in which she told Ms Garcia-Martinez that she was taking on studies for approximately one month, during which time she needed to reduce her working hours to a single Saturday shift. The Applicant said that Ms Garcia-Martinez confirmed that she could do so. Ms Christine Porta, the Respondent's Chief Executive Officer said she was aware of this arrangement and she produced a payslip that recorded the last hours of work the Applicant performed for the Respondent, which she said took place on Saturday 24 May 2025. Ms Porta said that the Applicant cancelled her Saturday shifts on 17 May 2025 and 31 May 2025. On Friday 6 June 2025, Ms Porta sent a text message to the Applicant advising her that her shifts had been reallocated but that the Respondent would be happy to reassign her shifts when her availability changed and she could commit to a minimum of 10 hours per week. Ms Porta said that after this, she made the Applicant "inactive" in the Respondent's human resources App. The Applicant says that she discovered this on 25 June 2025 and sought to make contact with the Respondent in order to remedy this. She said the only way she was able to make contact was through text messages and having advised the Respondent on 26 June 2025 that she could not access the App, she received a response from "Jess" advising her that there were no shifts for her "at the moment" and that the Respondent would contact her when shifts were available. The Applicant was unhappy with this response and replied with a further text message. The Applicant confirmed that she had been taken off the App and stated that she believed that she was being "fired." The Applicant also asserted that she was being "unlawfully dismissed" and warned the Respondent that she would be taking "appropriate legal action." Ms Porta said that while she had, until that point, been willing to reassign shifts to the Applicant if she was available, she was troubled by the Applicant's text and therefore instructed the Respondent's employees to neither reply nor get in contact with the Applicant. On 27 June 2025, the Applicant had a telephone conversation with Ms Garcia-Martinez and she said Ms Garcia-Martinez disclosed that the Respondent was treating other employees in a similar fashion and that she (the Applicant) had likely been dismissed.[1] Subsequently, on 26 August 2026, the Applicant said she was on the Centrelink website attempting to register for some social security benefits when she came across a record in her profile suggesting that her employment with the Respondent had ended on 1 June 2025. The Applicant said that seeing this made her decide to lodge an unfair dismissal application, which she did later on the same day. Ms Porta said she had no knowledge of there having been such a Centrelink record for the Applicant and could offer no explanation for it.

• [3] Section 394(1) of the Fair Work Act 2009 (the Act) limits those who can make an unfair application to a "person who has been dismissed." The criterion of a "A person who has been dismissed" is in objective terms and will be fulfilled if there has been a dismissal in fact. Section 386(1)(a) of the Act provides that a person is dismissed "if the person's employment ... was terminated on the employer's initiative." In this case, the Respondent denies having dismissed the Applicant.

• [4] Having regard to the factual background above, I am prepared to conclude that the Applicant was dismissed from her casual employment with the Respondent on 6 June 2025 when Ms Porta sent a text message to the Applicant advising her that her shifts had been reallocated and that the Respondent would be happy to reassign her shifts when her availability changed. The period of 21 days in s.394(2)(a) of the Act for the Applicant to make an unfair dismissal application ended, therefore, at midnight on Friday 27 June 2025. The Applicant's application was filed 60 days outside of this 21-day period on 26 August 2025. As such, she requires the Commission to allow her an extension of time (s.394(2)(b)). The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in ss.394(3)(a) to (f).

Reason for the delay - s.394(3)(a)

• [5] The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the Applicant's favour, however, all the circumstances must be considered.[2]

• [6] The delay required to be considered is the period beyond the prescribed 21-day period for making an unfair dismissal application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 27 June 2025. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for, in this case, the 40-day delay, or any part of that delay, beyond the 21-day period.[3] In this respect, I consider that any doubt the Applicant may have had regarding her status after the 6 June 2025 email from Ms Porta would have been dispelled firstly by the events of 25 June 2025, when she discovered she had been disconnected from the Respondent's human resources App, and then on 26 June 2026, when she received the text message from "Jess." I consider it is clear that the Applicant had formed the view that she had been dismissed when she sent her text message to "Jess" stating that she believed she was being fired, asserting that what the Respondent had done constituted "unlawful dismissal" and advising that she would be taking "appropriate legal action."

• [7] It is acknowledged that by 25 June 2025, 19 days out of the 21-day period had elapsed. I am therefore prepared to accept there was a credible reason for at least the initial period of the 40-day delay. The Applicant said she thereafter spent the weeks that followed 26 June 2025 waiting for a response to her 26 June 2025 text message and then in a state of resignation, in that she thought there was no point in entering into further dialogue with the Respondent because their employment agreement had outlined that there was no notice of termination. The Applicant said that by the beginning of August 2025, when she was starting her attempts to obtain new employment, she thought back to the discussion she had had with Ms Garcia-Martinez on 27 June 2025. She said these thoughts, and her subsequent discovery, on 26 August 2025, that her Centrelink records included reference to her employment with the Respondent having ended on 1 June 2026, prompted her to make her unfair dismissal application.

• [8] Having regard to the evidence before me, I am not persuaded there was an acceptable or reasonable explanation for the majority of the 40-day delay. Having to weigh options and decide upon a course of action is a dynamic routinely confronted by prospective applicants and while they are doing so, the Commission is very accessible, with extensive publicly available information to assist prospective applicants needing to complete the short, simple Form F2. The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect - s.394(3)(b)

• [9] Having regard to her evidence, I am satisfied that the Applicant was aware she was dismissed by at least 26 June 2025. As this was the 20th day after her dismissal had taken effect, she did not have the full period of 21 days to lodge her application. This factor weighs in favour of a finding that there are exceptional circumstances, but not to any significant degree.

Action taken to dispute the dismissal - s.394(3)(c)

• [10] The evidence also indicates that while the Applicant did not initially respond to Ms Porta's text message sent on 6 June 2025, she took action to dispute her dismissal by corresponding with the Respondent on 26 June 2025. There was, however, no further correspondence or discussion between the parties after this. Accordingly, this factor also weighs in favour of a finding that there are exceptional circumstances, but not to any significant degree.

• [11] I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. This consideration is a neutral one.

• [12] I am required to take into account the merits of the application in considering whether to extend the time but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.

• [13] In broad terms, the Applicant alleges that she had received approval from Ms Garcia-Martinez to reduce her hours temporarily while she undertook other studies and yet Ms Porta subsequently imposed a requirement on her to commit to a minimum of 10 hours work each week and then reallocated the Applicant's shifts because of her reduced availability.

• [14] Apart from objecting to the Applicant's unfair dismissal application on the basis that the Applicant was not dismissed, the Respondent claims to have been willing to reassign her shifts once she became available. The Respondent otherwise expressed concern about the Applicant's record in cancelling shifts and asserted the necessary trust between them was broken by the text message the Applicant sent on 26 June 2025 which foreshadowed legal action. I also observe that the Respondent had payroll records that suggest that during June 2025, it had less than 15 employees, such that the Applicant had not completed the minimum employment period of twelve months required for her to be a person protected from unfair dismissal.

• [15] It is not possible to make a final assessment of the merits of the Applicant's application at this time, although I would observe that the Respondent's relevant payroll records might establish that she is jurisdictionally barred from pursuing an unfair dismissal application. Assuming the Applicant could overcome the minimum employment period consideration, the merits would ultimately turn on points of fact which would need to be tested if an extension of time were granted and the matter proceeded to arbitration. The arguments and counterarguments relating to whether the Applicant has been unfairly dismissed would be developed and tested, and the merits of her application would depend on the factual findings. In the circumstances of this case, I conclude the merits of the Applicant's application are no higher than a neutral consideration.

Fairness as between the person and other persons in a similar position - s.394(3)(f)

• [16] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In this case, this consideration is a neutral consideration.

• [17] The requirement that there be exceptional circumstances before time can be extended under s.394(3) of the Act contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is "fair" to do so.

• [18] Having considered each of the considerations in s.394(3) of the Act, I have found paragraphs 3(b) and 3(c) weigh slightly in favour of an extension, while paragraphs 3(d), 3(e) and 3(f) are neutral. The s.394(3)(a) consideration weighs against an extension. Having had regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I therefore decline to grant an extension of time under s.394(3). Accordingly, the Applicant's unfair dismissal application is dismissed.

[1] This was outlined in a file note made on 29 August 2025 in relation to a telephone conversation between the Applicant and a member of the Commission's staff on 28 August 2025.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

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