s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application alleged to have been filed out of time - no exceptional circumstances demonstrated - extension of time not granted - minimum employment period also not met - application dismissed.

• [1] On 29 January 2025, Mr Bemen Markoues made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Markoues' application is his former employer, G4S Australia Pty Ltd (G4S).

• [2] G4S has raised three jurisdictional objections to Mr Markoues' application - that Mr Markoues was not dismissed from his employment, that the application was made out of time, and that Mr Markoues did not meet the minimum employment period. This decision deals only with the jurisdictional objections regarding Mr Markoues' application being filed out of time and that he did not meet the minimum employment period.

• [3] I held a Determinative Conference on 22 April 2025 to determine the two jurisdictional objections.

• [4] The parties filed material in accordance with Directions issued on 31 March 2025, which were compiled into a 'Digital Hearing Book' and distributed to the parties prior to the Determinative Conference. Noting that there were no objections from either party, I accepted into evidence the entirety of the Digital Hearing Book, including some late material filed by Mr Markoues. This late material was an email titled Gmail Fair Work Infoline Enquiry 3598414 (Enquiry Email). G4S did not object to this email being admitted into evidence.

• [5] Noting the Full Bench in Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited,[1] I deal firstly with the application being filed beyond the prescribed 21-day timeframe to file an application.

First Jurisdictional Objection: Extension of Time

• [6] Whilst in his Form F2 Mr Markoues submits that his employment came to an end on 9 January 2025, this appears to be an error. Mr Markoues confirmed at the Determinative Conference that his employment came to an end on 6 January 2025. It is also G4S' view that the employment came to an end on 6 January 2025. I therefore accept that the employment relationship ended on 6 January 2025. For the application to have been made within 21 days after the dismissal took effect, it needed to have been filed by 27 January 2025. Mr Markoues' application was filed on 29 January 2025 at 2:48PM. The application has therefore been made more than 21 days after the dismissal took effect.

• [7] For the reasons given below, I am not satisfied that Mr Markoues has demonstrated that there are exceptional circumstances for the delay and therefore do not extend time for Mr Markoues to make his application.

• [8] The Commission can grant an extension of time for the lodging of an unfair dismissal application under s.394(2)(b) of the Act if it is satisfied that there are exceptional circumstances.

• [9] Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

1. the reason for the delay;
2. whether the person first became aware of the dismissal after it had taken effect;
3. any action taken by the person to dispute the dismissal;
4. prejudice to the employer (including prejudice caused by the delay);
5. the merits of the application; and
6. fairness as between the person and other persons in a similar position.

• [10] The test to determine whether there are exceptional circumstances is a 'high hurdle,' and one that involves the exercise of discretion.[2] Exceptional circumstances need not be unique, or unprecedented, or very rare but must be out of the ordinary course, or unusual, or special, or uncommon.[3]

Section 394(3) Considerations

• [11] Mr Markoues says that he tried to file his application with the Fair Work Commission on or around 15 or 16 January 2025 and says that the application was subsequently placed 'on hold'. However, he did not provide any evidence of this.

• [12] The Enquiry Email filed by Mr Markoues is an email from the Fair Work Ombudsman to Mr Markoues, dated 29 January 2025 at 2:13PM. This email appears to be an automated response which thanks Mr Markoues for his enquiry, provides a reference number for his call, and gives contact details and website links to the Fair Work Commission. It appears that Mr Markoues proceeded to file his application with the Fair Work Commission 35 minutes later.[4]

• [13] Mr Markoues says the reason he did not file his application on time was because the Fair Work Commission required that he file a Form F80 Waiver of application fee with his Form F2. There is no evidence that Mr Markoues was prevented from filing his application on time as a result of the Fair Work Commission requiring a Form F80. After receiving Mr Markoues' application on 29 January 2025, following some communication with Mr Markoues regarding the minimum employment period, the Commission contacted him on 30 January 2025 to request that he file a completed Form F80 by 3 February 2025. A completed Form F80 was subsequently received, and the application progressed. From the Commission's file, it is clear the application was filed with the Commission on 29 January 2025. The Commission's records do not indicate that any application was made on or around 15 or 16 January 2025 and it is not the Commission's process to 'hold' the processing of an application until a completed Form F80 is filed. Mr Markoues did not provide any evidence to show that he was prevented from filing his application on time by the Fair Work Commission. The evidence shows that Mr Markoues filed his application on 29 January.

• [14] I do not consider the reason given for the delay to be an exceptional circumstance and therefore consider this factor weighs against a finding of exceptional circumstances.

Whether aware of the dismissal after it had taken effect

• [15] It is not disputed that Mr Markoues was aware that the employment relationship had ended on 6 January 2025. G4S says that Mr Markoues resigned from his employment.[5] Mr Markoues says that he did not receive anything in writing from his employer about his employment being terminated. However, both parties filed correspondence dated 6 January 2025 from Mr Markoues to Mr Andrew Cook of G4S, in which Mr Markoues writes '... I am formally submitting my resignation from my role'.[6] A further email from Mr Cook at 1:36PM on the same day states as follows: 'I confirm receipt of your resignation letter. This has been processed effective today.'[7]

• [16] At the Determinative Conference, Mr Markoues did not contest that 6 January 2025 was his last day of his employment. While I note Mr Markoues' contention that he did not resign voluntarily, that is not a question for determination in this Decision. I am satisfied that Mr Markoues was aware that his employment ended on 6 January 2025.

• [17] I consider this to be a neutral factor.

• [18] Action taken by an Applicant to dispute the dismissal may favour the granting of an extension of time.

• [19] It was Mr Markoues' evidence that after 6 January he did not speak to G4S about his employment ending, but did speak to his union representative about the termination. Mr Markoues says that the union asked him why he had resigned, to which he responded that a termination may affect his future employment prospects, and because of that he preferred to resign than be terminated. He says the union advised him that he could put in an application to the Fair Work Commission if that was his choice. The union did not represent Mr Markoues nor did not they attend or give evidence at the Determinative Conference.

• [20] There is no evidence that Mr Markoues took any action to dispute his dismissal with G4S, and as such, I consider this factor weighs against a finding of exceptional circumstances.

• [21] G4S has not made any submissions as to how Mr Markoues' late application prejudices it.[8]

• [22] I do not consider G4S suffer any prejudice from the late-filing of the application and therefore consider this to be a neutral factor.

• [23] Mr Markoues says that he was targeted by his manager and was unfairly accused of underperformance. G4S says that there were ongoing performance issues with Mr Markoues, which had been the subject of discussions since November 2024. G4S outlined its concerns to Mr Markoues at a meeting on 19 November 2024. A subsequent show cause meeting was held on 6 December 2024. G4S also submit that Mr Markoues voluntarily resigned from his employment. Mr Markoues says that although he did resign, he did so because he felt he had no other choice and because he didn't want a termination on his record.

• [24] Given the contested facts, I am unable to make a full assessment on the merits of the case without having the parties' submissions on the subject.

• [25] Given this, I consider the merits of the application to be a neutral factor.

Fairness as between the person and other persons in a similar position

• [26] Neither party made any submissions, nor did they direct me to cases involving other persons in similar positions to that of Mr Markoues.

• [27] I consider this to be a neutral consideration.

• [28] In view of all the matters set out in s.394(3) of the Act, and considered above, there is one factor which weighs against, five factors which are neutral, and no factors which weigh in favour of a finding that there are exceptional circumstances.

• [29] Having weighed each of these factors, and having considered them individually and collectively, I am not satisfied that there are exceptional circumstances which warrant an extension of time being granted to Mr Markoues for the making of his unfair dismissal application.

Second Jurisdictional Objection: Minimum Employment Period

• [30] Whilst I have, in exercising my discretion, determined not to grant Mr Markoues an extension of time, I will now briefly consider G4S' second jurisdictional objection: that Mr Markoues' employment did not meet the minimum employment period and therefore that he is not a person protected from unfair dismissal.

• [31] Section 382 of the Act provides when a person is protected from unfair dismissal:

"382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold."

• [32] Section 383 defines "minimum employment period" as follows:

(a) if the employer is not a small business employer--6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(b) if the employer is a small business employer - one year ending at that time."

• [33] Section 384 defines "period of employment" as follows:

(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was as a regular casual employee; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee's period of employment with the new employer.

• [34] G4S submits that Mr Markoues is not a person protected from unfair dismissal.

• [35] G4S is not a small business employer.[9]

• [36] G4S says that Mr Markoues commenced employment on 29 July 2024, and his employment ended on 6 January 2025, meaning that he was employed for five months and eight days, which is less than the minimum employment period of six months.[10]

• [37] It is not contested that there is an employment contract between the parties, dated 19 July 2024, which specifies in Schedule 1 to the contract, a commencement date of 29 July 2024.[11] Mr Markoues says that despite the commencement date on his contract, he was engaged by G4S on 26 June 2024, which is the date he says G4S sent him an email 'confirming [his] onboarding as an employee'.[12] It is Mr Markoues' evidence that this meant his employment with G4S commenced on 26 June 2024 and not 29 July 2024. He says that from 26 June he was granted access to the G4S 'App' which allowed him to fill-in and acknowledge documents online. I do not agree with Mr Markoues' that his employment commenced on 26 June. The email, titled 'G4S Job Alert Email Service', merely states that G4S will notify Mr Markoues of new job opportunities as they become available.[13] It is nothing more than a mechanism in which a prospective employee can upload appropriate documents in order to be notified of any jobs which align with their preferences. Nowhere in this email does it state that Mr Markoues' employment has commenced with G4S.

• [38] Mr Markoues also says that he performed training and voluntary work at least two-weeks prior to 29 July 2024 at the G4S site in the city. He says that a bank statement, filed with his submissions, shows that his first pay was received on 8 August 2024.[14] He says that this is evidence that he worked prior to 29 July 2024.[15] However, Mr Markoues did not provide any other evidence, such as payslips, corresponding to the bank statement, that show he performed work for G4S prior to 29 July 2024. At the Determinative Conference, Mr Markoues could not answer my questions with any precision about the dates he says he undertook training and volunteer work prior to 29 July.

• [39] At the Determinative Conference, Mr Andrew Cook, HR Business Partner of G4S, gave evidence for G4S. It is Mr Cook's evidence that there was no employment relationship until 29 July 2024, as per the contract of employment. Mr Cook says that the email of 26 June 2024 is not a formal offer of employment but correspondence which indicates that Mr Markoues entered into G4S' system his preferences for any roles and is confirmation that he wishes to be notified of any role that meets his preferences.

• [40] Further, it was Mr Cook's evidence that Mr Markoues did not attend any training for G4S prior to 29 July nor did he undertake any voluntary work. He says that Mr Markoues did undertake approximately 2 weeks of training which was conducted in St Kilda after 29 July 2024. Mr Cook says that once this training was completed, Mr Markoues began work at G4S' Clayton site.

• [41] On the question of whether Mr Markoues' employment began on 26 June and not 29 July, I prefer the evidence of Mr Cook. Mr Cook was able to clarify the date that Mr Markoues' employment commenced, and that Mr Markoues' training was conducted following his commencement with G4S.

• [42] Further, in Mr Markoues' remedy for unfair dismissal application, he states the following: 'ultimately, after five months of employment, I was unfairly accused of underperformance without any formal assessment'.[16] This statement accords with the evidence filed by G4S, which shows that Mr Markoues' employment commenced on 29 July 2024 and ended on 6 January 2025 - an employment period of five months and eight days.

• [43] I find there is no evidence which shows that Mr Markoues commenced his employment with G4S on 26 June 2024.

• [44] In considering the evidence, I find that Mr Markoues commenced employment with G4S on 29 July 2025 and as such, Mr Markoues does not meet the minimum employment period required and is therefore not protected from unfair dismissal.

• [45] Mr Markoues' application for an unfair dismissal remedy is dismissed, and an Order[17] to this effect will be issued with this Decision.

[1] [2022] FWCFB 234.

[2] Bilkis v Commonwealth of Australia, represented by Services Australia [2020] FWCFB 4859 [6].

[3] Nulty v Blue Star Group [2011] FWAFB 975 [13].

[4] Digital Hearing Book (DHB) page 3.

[17] PR786532.

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