s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether dismissed - effective date of dismissal - application filed in time

• [1] Mr Bishwash Subedi was employed as Head Baker by Crispy Bakehouse Co Pty Ltd (CBC) on 14 October 2024. Mr Subedi says he was dismissed on 2 August 2025 when he was removed from the work WhatsApp roster chat. CBC says Mr Subedi was not dismissed. It says the parties mutually abandoned the employment relationship after they agreed to meet on Tuesday, 22 July 2025 and Mr Subedi did not show up. Alternatively, it says the employment ended when Mr Subedi left the country on 24 June 2025 in circumstances where his leave request had not been approved.

• [2] On 16 August 2025, Mr Subedi applied to the Commission for an unfair dismissal remedy from CBC. Under s.394 of the Fair Work Act 2009 (the Act), an application for an unfair dismissal remedy must usually be made within 21 days after the dismissal took effect. Assuming Mr Subedi was dismissed, if the dismissal occurred on 22 July 2025, the application was filed 10 days late. If the dismissal occurred on 2 August 2025, the application is in time.

1. Whether Mr Subedi was dismissed,
2. If Mr Subedi was dismissed, when the dismissal took effect, and
3. If the application is late, whether to allow additional time for Mr Subedi to make the application to the Commission.

• [4] I find that Mr Subedi was dismissed with effect on 2 August 2025. The application is in time, and no extension of time is required.

• [5] On Sunday, 22 June 2025, Mr Subedi booked a one-way plane ticket to Nepal, for travel with his daughter on the morning of 24 June 2025. This followed a phone call with his family the Friday before, requesting that he come home urgently to Nepal to assist with a property sale.

• [6] On 23 June 2025, Mr Subedi attended for work. At some point during the shift, he told 'BJ', who was in charge of rostering and leave approvals, that he needed to travel to Nepal for an emergency the following day. According to Mr Subedi, BJ said, 'if it's an emergency, just go', and 'tell Sheena [Reid] (Operations Manager) and Chris [Baloglow] (Owner)'. Mr Subedi asked BJ to print him out a leave application form. He later filled in the form with an application for leave from 24 June 2025 to 2 August 2025 and left it on the computer desk in the office.

• [7] Mr Subedi spoke to Ms Reid about midway through his shift. He said that he needed to take leave the following day because of an emergency at home, and that he did not know how long it would be, but it could be up to 10 weeks. Ms Reid was unhappy and told Mr Subedi that she could not approve his leave because she could not cover it in time. When Mr Subedi said he already had a ticket and it really was an emergency, Ms Reid replied by saying 'well you already have the ticket, what else can we do'.

• [8] Mr Subedi saw Mr Baloglow on his way out the door at the end of his shift on 23 June 2025. By this time, Mr Baloglow had spoken to Ms Reid about Mr Subedi's decision to travel to Nepal the next day. As Mr Subedi left, Mr Baloglow said 'goodbye'. He was unsure that he would see him again and assumed that Mr Subedi had decided to quit.

• [9] On 24 June 2025, Mr Subedi did not attend for work. CBC advertised for another Baker straight away, although it did not advise Mr Subedi that it understood him to have resigned or to have abandoned his employment. In the meantime, Mr Subedi travelled to Nepal as planned. When his family's property sale did not proceed, Mr Subedi booked return plane tickets to Australia on 7 July 2025.

• [10] On 2 July 2025, CBC made its last payment of wages to Mr Subedi, including payment for Monday, 23 June 2025 and annual leave for the remainder of the week. I do not consider this a 'final pay' in the sense of paying out Mr Subedi's employment entitlements. The payslip provided indicates a remaining (although small) unpaid balance of accrued annual leave for Mr Subedi. This is consistent with Mr Baloglow's evidence that he didn't think Mr Subedi was coming back, but he didn't know what was going to happen and decided to just leave it at the time.

• [11] On 9 July 2025, Mr Subedi and his daughter left Nepal to travel back to Australia. They arrived in Sydney on 10 July 2025.

• [12] On Friday, 18 July 2025, Mr Subedi contacted CBC to say that he was able to start work from 21 July 2025. CBC responded by saying there were things to discuss. A meeting was proposed for Tuesday. 22 July 2025 but never confirmed by CBC. Mr Subedi did not return to work.

• [13] On 2 August 2025, Mr Subedi saw that his access to the CBC roster group chat had been revoked. He formed the view that he had been dismissed. There was no further communication between the parties until this application.

• [14] I find that Mr Subedi was dismissed by CBC when it removed him from the roster group chat on 2 August 2025. This action, following the absence of any response to Mr Subedi's message to Mr Baloglow about a meeting on 22 July 2025, was sufficient to communicate to Mr Subedi that the work relationship was at an end.

• [15] Although CBC had a reasonable basis for considering that Mr Subedi had abandoned his employment on 24 June 2025, it was incumbent on CBC to seek to confirm this with Mr Subedi before putting its understanding into practice. It did not do so. Further, CBC cannot rely on Mr Subedi's failure to attend the meeting on 22 July 2025 as evidence of abandonment of employment in circumstances where Mr Subedi had requested a time for the meeting and had received no reply. It is true that Mr Subedi did not follow up with CBC about the status of his employment after this time. However, responsibility for seeking to confirm whether Mr Subedi intended to return to work (as he had indicated in his message of 18 July 2025), or had abandoned his employment, ultimately rested with CBC. Treating the employment as having come to an end before taking this step resulted in the termination of employment at CBC's initiative.

• [16] The jurisdictional objections are dismissed.

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