s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application out of time

• [1] Mr Harry Holt worked as a casual Guest Services - Party Host for TEEG Australia Pty Ltd (TEEG) trading as Zone Bowling, Penrith from 18 March 2024 until 22 November 2024 or 10 March 2025. On 5 April 2025, Mr Holt applied for an unfair dismissal remedy. Applications of this type must be made within 21 days after the dismissal took effect, or if there are exceptional circumstances, such further period as the Commission allows.[1]

• [2] TEEG objects to the application, including because it was filed late. The date of dismissal is in dispute. TEEG says Mr Holt was dismissed when he was told of his dismissal on 22 November 2024 and removed from the roster. Mr Holt accepts that he was told of his dismissal on 22 November 2024 and that he has not work since. However, he submits that TEEG did not actually terminate the employment relationship until 10 March 2025, once attempts to resolve the matter by discussion between the parties broke down. No written advice of dismissal was provided. If the dismissal occurred on 22 November 2024, the application was made 113 days late. If it occurred instead on 10 March 2025, the application was made 5 days late. Either way, it is necessary to decide whether to allow additional time for the application to be made.

• [3] For the reasons below, I have decided that Mr Holt was dismissed on 22 November 2024 and that his application is 113 days late. I have also decided not to allow an extension of time for the application to be made. The application will be dismissed.

• [4] Mr Holt secretly recorded meetings with TEEG on 16 November 2024, 22 November 2024 and 7 February 2025. He has since transcribed those recordings and asks that they be admitted into evidence in support of his case. TEEG objects to the receipt of this evidence, which it says was obtained illegally. I have decided not to admit the recordings, or the transcripts of those recordings into evidence, for the purpose of dealing with the extension of time application. I am not persuaded that the desirability of admitting the evidence outweighs the considerations against their admission.

• [5] The starting point is that it is unlawful (and a criminal offence) under the Surveillance Devices Act 2007 (NSW) to knowingly record a private conversation to which the person is a party on a listening device without their consent (s.7) unless recording is either reasonably necessary to protect the lawful interests of the person or it is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to third parties.

• [6] I am not satisfied that it was reasonably necessary for the protection of Mr Holt's lawful interests to record the meetings with TEEG, even accounting for his Autism Spectrum Disorder (ASD). There were other ways to keep a record of what happened in the meetings, including taking meeting notes, or asking a support person to assist him with note taking, or making contemporaneous notes of meetings after they finished while the events were fresh in his memory. He could have asked a family member to help him with this task so that it could be done in a way that he could manage, and I note that Mrs Holt (his mother) was present for the final meeting recorded without TEEG's knowledge. The assertion that recording was reasonably necessary to protect a lawful interest because dismissal posed a threat to his family's defence-sponsored visa status is not made out on the evidence. I accept that Mr Holt was very worried about this matter, but I am unable to conclude (due to lack of evidence) that the worry was reasonable in the circumstances.

• [7] I am also not satisfied that when the recordings were made, Mr Holt's purpose was only ever to limit them to his private use. There is no evidence to this effect and the submission is not persuasive. At the time the final recording was made, the possibility of legal proceedings was in contemplation, including for unfair dismissal. His mother had first advised of her intention to "record any meetings around this matter" on 27 November 2025 as "this may be a matter for the courts at a later date should no resolution be met". Once it became clear that the matter would not be resolved internally, Mr Holt began transcribing the recordings to "show what was said more easily to" the Commission as well as to help him understand the proceeding.

• [8] As to the probative value of the recordings, Mr Holt has given evidence about what occurred in the meetings that he recorded, including the meeting on 7 February 2025. It is clear from his evidence that Mr Holt has a detailed recall of the meeting of 7 February, likely aided by his spending so much time and effort in transcribing the recordings. The same is likely to be true for the other meetings. Had Mr Holt made the recordings for his own use and with no purpose of communicating or publishing the recordings to third parties, his conduct in doing so would not have been unlawful. The recordings could have been used by Mr Holt privately to aid his recall of relevant events when preparing for any conference or hearing of the matter, without the need to produce the recordings. Deciding not to admit the recordings puts Mr Holt in this same position and does not, in my view, detract from the value of his own evidence about what happened in the meetings.

• [9] Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) empowers the Commission to allow an extension of time to apply for an unfair dismissal remedy that has not been made within the statutory 21-day filing period. The power is discretionary and can only be exercised if I am satisfied there are exceptional circumstances, taking into account:

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.

• [10] The meaning of "exceptional circumstances" was considered and summarised in Nulty v Blue Star Group:[2]

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."[3]

• [11] Reason for delay: The primary reason for the delay in applying to the Commission is that Mr Holt had been attempting to resolve the dispute with TEEG about his dismissal internally, both directly and through his mother, Mrs Elizabeth Holt, who was mostly dealing with the dispute on his behalf. On 27 November 2024, Mrs Holt advised TEEG that she was "seeking to take this matter further" on Mr Holt's behalf including by "legal action...on the basis of unfair dismissal". TEEG responded on 29 November 2024 proposing a meeting the following Wednesday, 4 December 2024. Two weeks later, on 18 December 2024, Mrs Holt replied. She referred to the meeting on 22 November 2024 as "terminating his employment" and provided information about his experience. The email indicated that further discussion might not happen until after the Christmas holidays, although it is not clear who took the next step. On 7 February 2025, there was a meeting between Mr Holt, Mrs Holt and TEEG. Mr Holt says he was told in this meeting that his termination had not been made official and that he was just not being given any shifts. He separately says that TEEG offered him the opportunity of reinstatement. A separate offer of resignation may also have been made because this was later rejected by Mrs Holt on behalf of Mr Holt. As of 7 February 2025, Mr Holt still had access to its 'MyDayforce' App but was no longer on the roster. He says TEEG assured him it would attempt to resolve the matter by consulting key stakeholders without providing a specific timeframe. On 13 February 2025, Mrs Holt wrote to TEEG noting recent legal advice about Mr Holt's dismissal and making an offer of settlement to avoid "further legal action".

• [12] On 10 March 2025, TEEG responded to Mrs Holt about Mr Holt and "the termination of his casual employment... on 22 November 2024". TEEG advised that it had reviewed the dismissal and now considered the matter closed. Mrs Holt replied to TEEG to say that they would pursue "under the fair work commission" and would "hand this matter over moving forward". Mr Holt did not become aware of the email from TEEG on 10 March 2025 until 18 March 2025 because his mother did not show it to him out of concern for his mental health. In the meantime, on 14 March 2025, Mr Holt received an email inviting him to participate in an 'exit interview' and saying that TEEG was sad to see him go. The same email was sent to him again on 17 March 2025. Mr Holt tried to access the My Dayforce App on 17 March 2025 and saw that his employment status was "Terminated".

• [13] On 26 March 2025, Mr Holt wrote to TEEG advising that he would "escalate this to the Fair Work Commission within 21 days unless resolved". On 1 April 2025, TEEG responded by rejecting his offer of settlement and confirming its position on 10 March 2025. Mr Holt submits that until 26 March 2025, he trusted in what he thought was a fair process and believed TEEG would resolve the matter internally. He filed the application 4 days after his offer of 26 March 2025 was rejected.

• [14] I find that Mr Holt was dismissed on 22 November 2024 when his dismissal was clearly communicated to him in person. Although it might be said that the dismissal did not take effect until later, the evidence points against this conclusion. The parties all acted on the basis that the dismissal had occurred on 22 November 2024 from the outset, and this only changed in connection with the extension of time application. I accept that some confusion was introduced into the conversation by TEEG on 7 February 2025 when reference was made to the termination not having been made 'official'. But in my view, those comments were not intended to convey that Mr Holt had never been dismissed. They were made instead in the context of discussion about a potential return to work for TEEG as part of a negotiated settlement of a dismissal dispute. There is also no evidence of any communication of the fact of dismissal at any point after 22 November 2024. The correspondence of 10 March 2025 does not, for example, provide formal confirmation of termination of employment, as would be expected if TEEG's understanding until that time was that Mr Holt had not yet been dismissed. TEEG makes the important point that once given, notice of dismissal cannot be retracted unilaterally. There is no evidence of any agreement for the dismissal to be revoked. To the contrary, attempts to reach agreement were unsuccessful.

• [15] The history of discussion between the parties after 22 November 2024 shows that despite being aware of the option of unfair dismissal from as early as 27 November 2024, and potentially having sought legal advice, Mr Holt (and on his behalf, Mrs Holt) initially decided to pursue direct negotiations with TEEG rather than take formal legal action. This was a reasonable decision to make but one that put the option of an unfair dismissal application at risk because of the time those negotiations took. In that regard, I do not accept that TEEG deliberately engaged in prolonged correspondence including a 3-week delay in responding to his offer of 13 February 2025 until 10 March 2025 to wait out the 21-day filing period. Firstly, the submission does not make sense. On Mr Holt's case, the 21-day period ran either from 22 November 2024, or 10 March 2025. In the period from 13 February 2025 to 10 March 2025, the 21-day filing period had either long since passed, or had not yet commenced. Secondly, the initial delay in responding to correspondence (which overlapped with the majority of the 21-day filing period) was attributable to Mrs Holt.

• [16] On 10 March 2025, Mrs Holt advised TEEG that the matter would be pursued in the Commission. Mr Holt became aware of this correspondence on 18 March 2025. By this time, he knew about the 21-day filing period. He did not file an application straight away. He was focused instead on making one last offer of settlement, which he sent on 26 March 2025. The offer was rejected on 1 April 2025. Again, no application was made to the Commission and it was a further 4 days before the application was made. In the circumstances, the fact that there was ongoing dialogue between the parties about resolving the matter in the period from 27 November 2024 to 1 April 2025 is not an exceptional circumstance nor does it provide an acceptable reason for the delay. The two things could have occurred in parallel.

• [17] A second reason for the delay is that Mr Holt has ASD. He says the dismissal caused significant anxiety and distress, including low energy and panic attacks about the potential for his alleged misconduct to be reported to the police and affect his family's Defence-sponsored visa status. The time it took for the investigation and settlement negotiations added to his distress. Medical evidence confirms his ASD diagnosis and recommended adjustments, and I accept the submissions as to his experience of anxiety and distress. I am satisfied that the circumstances of the dismissal (including the nature of the allegations and its potential consequences for Mr Holt) were likely to cause significant distress for a young person with ASD and that these factors together were a relevant exceptional circumstance. On the other hand, there is no medical evidence about the extent of Mr Holt's incapacity to function in the period from 27 November 2024 to 5 April 2025, noting the relevant period of delay as commencing at the end of the 21-day filing period on 14 December 2024. On the materials, I am satisfied that Mr Holt had sufficient capacity to apply to the Commission at times during that period. He was able to meet with TEEG on 7 February 2025. He certainly had capacity to apply by 26 March 2025 when he made his final offer of settlement to TEEG. I consider it likely that he had also relevant capacity from 18 March 2025, which is when Mrs Holt decided to show him the email from TEEG of 10 March 2025. The experience of heightened anxiety and distress in the period after dismissal explains part, but not all, of the delay.

• [18] Mr Holt submits that both his ASD and the reluctance of others to become involved caused a delay in the transcription of recordings and the collection of evidence such as witness statements. Text messages obtained by Mr Holt in support of this submission are undated. His witness statement and evidence indicates that these were obtained on 15 November 2024, before he was dismissed. Mr Holt says he overlooked these messages, although there is evidence of his immediate replies. I accept that the time Mr Holt spent on preparing the transcripts contributed to the delay in filing the application, but there was no requirement for these activities to be completed before the application was filed. In any event, the transcripts were not filed at the time of the application but approximately one month later, on 8 May 2025. Neither the transcription of recordings nor the collation of witness evidence is an exceptional circumstance.

• [19] A third reason for delay is a "nerve crush injury" to Mr Holt's arm sustained in January 2025, which made things more difficult because he had to do everything one handed and take regular breaks. Mrs Holt's statement explains that this developed into Complex Regional Pain Syndrome for which he was prescribed medication in March 2025 and this made him unable to communicate or make lawful decisions. No medical evidence is provided in support of this aspect of the submissions but taking them at face value, Mr Holt was able to engage in complex communication at least by 26 March 2025 when he made his final settlement offer to TEEG. As noted above, I am satisfied that Mr Holt had sufficient capacity to apply to the Commission by 26 March 2025. I am not satisfied that the injury sustained in March 2025 explains any part of the delay prior to March 2025.

• [20] A fourth reason for delay is that Mr Holt had only been in Australia for one year, and did not know about the Fair Work Commission and was not told by TEEG about the 21-day deadline for unfair dismissal claims. Ignorance of the law is not an exceptional circumstance. Further, Mrs Holt had at least some knowledge about 'unfair dismissal' from 27 November 2024. If she did not discuss this with him beforehand (which seems unlikely) Mr Holt became aware of the option at least by 7 February 2025. He spent time gathering evidence and transcribing meeting recordings for the purpose of his application, including one 2.5 hour meeting. He waited for responses to his settlement offers. One of these took 3 weeks to arrive.

• [21] Mr Holt submits that he made multiple calls to the Commission asking questions because he was confused. A search of calls made from his mobile number does not identify any calls made before 1 April 2025. A phone call was received from this number on 1 April 2025 but disconnected before contact with the Commission was made. A second phone call was received on 4 April 2025 during which Mr Holt was able to speak with a staff member of the Commission. It follows that if the only contact made by Mr Holt was from his mobile number, the submission cannot be accepted. Mr Holt made one call from this number to the Commission asking questions on the day before he made his application to the Commission. The fourth reason does not provide an acceptable reason for delay.

• [22] A fifth reason for delay is that Mr Holt did not receive written confirmation of the termination of his employment "as per the Terms and Conditions of my Employment" and this made him uncertain about the date of dismissal. I accept that Mr Holt did not receive written notice of dismissal, but I do not accept that he was confused about the date of dismissal. For the reasons given earlier, the dismissal was clearly communicated to Mr Holt on 22 November 2024. Uncertainty about the date of dismissal only arose later in connection with the making of this application and the related issue of the need for an extension of time. Although it may be desirable, there is no requirement for notice of termination of employment to be put in writing.

• [23] Finally, Mr Holt submits that he is only asking for a 5-day extension and that because he was previously granted a 5-day extension to file his submissions in relation to the extension of time, it is reasonable to extend time by a further 5 days for his application to be made. The submission is misconceived. The Commission's general discretion about the programming of cases is subject to any relevant statutory rules. The discretion to extend the 21‑day filing period is constrained by s.394(2) of the Act (above). It is not enough that I might consider it reasonable to extend the time for filing. I must also be satisfied that the relevant statutory conditions on the exercise of that discretion have been met. Further, and for the reasons above, the application is 113 days late (not 5 days).

• [24] In summary, I find exceptional circumstances in the case due to the combination of circumstances leading to the dismissal and the effect on Mr Holt who has ASD. However, these circumstances explain only part of the delay and I have not found an acceptable reason for the delay after 26 March 2025. On balance, the reasons for delay weigh marginally in favour of additional time being allowed.

• [25] Whether the person first became aware of the dismissal after it had taken effect: Mr Holt became aware of the dismissal immediately on 22 November 2024 during a meeting with TEEG. This does not weigh in favour of additional time in the circumstances.

• [26] Any action taken by the person to dispute the dismissal: Mr Holt actively sought to resolve the dispute with TEEG, both directly and through his mother acting on his behalf, in the period after his dismissal, as described above. He did not take any formal action to dispute the dismissal until the application was made. But on balance, these steps weigh in favour of additional time.

• [27] Prejudice to the employer (including prejudice caused by the delay): There is likely to be a degree of prejudice to TEEG if the application is allowed to proceed late because of the time that has passed since 22 November 2024. Relevant witnesses may no longer be available, and the reality is that for available witnesses, memories are likely to have faded. On the other hand, TEEG has been on notice of the dispute since 5 days after the dismissal took effect and has thus had an opportunity to preserve its position in anticipation of a legal case. On balance, the delay weighs marginally against an extension of time.

• [28] Merits of the application: Mr Holt was dismissed for taking things without permission and excessive personal use of game machines. He submits that his conduct was approved by managers on duty and that the investigation and dismissal process was both flawed and discriminatory due to his ASD. Mr Holt also submits that the response of dismissal was disproportionate to the alleged conduct. He says TEEG did not make reasonable accommodation for his ASD although there is a dispute about the extent to which his condition had been disclosed to TEEG. At the time of dismissal, Mr Holt was 16 years old. He had received positive reviews about his performance. The allegations against him were of a potentially serious nature. Many relevant findings of fact are likely to turn on whose evidence should be preferred on the issue of whether Mr Holt's actions were authorised. There is a separate question about whether the secret recordings gave TEEG a separate valid reason for dismissal. Given the range of issues in dispute, it is not appropriate to make any detailed assessment of the merits at this stage of the proceeding. The case is at least arguable but there will be challenges for Mr Holt to overcome. The merits are a neutral consideration in the circumstances.

• [29] Fairness as between the person and other persons in a similar position: This does not appear to be a material factor in the circumstances of this case. I am unable to find any of the cases cited by Mr Holt in relation to this criterion and the only other case[4] I am aware of with similar facts involving a mother acting for, and in support of, an applicant son with ASD, found exceptional circumstances - not because of the ASD diagnosis but because of representative error. There is no suggestion in this case that Mrs Holt made any error contributing to the delay.

• [30] I have found exceptional circumstances in the case for the reasons described above. On balance, however, I am not satisfied that I should allow additional time for the application to be made. The legislative intent is generally for unfair dismissal applications to be made quickly. In this case, the delay in filing is not insignificant and it is not adequately explained. Mr Holt knew of his dismissal straight away. He faced some challenges both in the 3 weeks after his dismissal and in the 113‑day period that followed. On the evidence, the application could have been made much earlier than it was without detracting from negotiations to resolve the dispute with TEEG or from any preparation of evidence for the case. A choice was made to try and resolve the matter internally rather than take legal action. As noted above, this was not a choice that was reasonable but not without risk to Mr Holt's ability to apply for an unfair dismissal remedy. Despite various references made to the provision of legal advice, and the pursuit of a legal claim, I find that the decision to commence legal action was only made on or after 1 April 2025 when TEEG rejected the settlement offer of 26 March 2025. There was then a further 4‑day delay that remains largely unexplained. Neither the merits of the case nor the question of fairness compared to others in a similar position tip the balance in favour of additional time.

Ms J Phillips of Sparke Helmore Lawyers on behalf of TEEG.

[1] Fair Work Act 2009 (Cth), s 394(2).

[2] [2011] FWAFB 975; [2011] 203 IR 1.

[4] Riley v Anglican Aged Care Services Group T/A Benetas [2022] FWC 2264

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