Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

• [1] On 5 August 2025, I delivered on transcript my decision granting an extension of time for Mr Hassan Haidar's application made under section 365 of the Fair Work Act in which he alleges that he was dismissed by Sydney Tools Pty Ltd (Sydney Tools) in contravention of Part 3-1 of the Fair Work Act. At the conclusion of the hearing, I informed the parties I would provide further written reasons for my decision. The following are my further reasons and an edited version of the decision given on transcript.

• [2] Further, at the conclusion of the hearing I conducted a conference and for the reasons that will become apparent, I withdrew permission for the paid agent to participate in any further proceedings.

• [3] Mr Haidar commenced his employment with Sydney Tools on 4 March 2025 as a Sales Representative. He was employed for a total of nine weeks before being notified on 5 May 2025 of his dismissal.

• [4] Mr Haidar's application was made on 2 June 2025. Section 366(1) of Act states an application for general protections involving dismissal must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.[1]

• [5] Mr Haidar's employment ended with Sydney Tools during his probation period. Mr Haidar submits that his dismissal took effect on 12 May 2025, therefore his application was lodged within time. Sydney Tools submits that the effective date of dismissal was 5 May 2025, and therefore the application was made after the 21-day period.

• [6] Mr Haidar was represented by a paid agent, Mr Leo Close. Sydney Tools was represented by Mr Daniel Letta, Head of Human Resources.

• [7] The onus is on Mr Haidar to demonstrate that an extension of time ought to be granted.[2] The Act makes it clear that an extension of time may be granted by the Commission if there are exceptional circumstances. If the Commission finds that there are exceptional circumstances, it can exercise its discretion to grant an application taking into account all the considerations set out in s. 366(2)(a)-(e).

• [8] The facts in this matter are set out as follows. Mr Haidar attended his rostered shift on Monday, 5 May 2025. Towards the end of his shift Mr Haidar's manager requested that he step outside to have a discussion and was informed that he could bring a support person however Mr Haidar declined the offer of a support person. During that discussion Mr Haidar was informed that he was being dismissed. Mr Haidar was asked to sign a letter which he declined to do so. Mr Haidar was informed during the discussion with the manager that he was not required to return to work as it was his last shift because his employment was being terminated.

• [9] Shortly after the meeting with his manager Mr Haidar received a phone call from Mr Mastrogiannis, Talent Specialist for Sydney Tools. Mr Mastrogiannis informed Mr Haidar that he was being dismissed based on his performance. Mr Mastrogiannis sent a termination letter via email at 3:30pm that afternoon confirming what had been discussed. The 5 May 2025 email stated:

Appreciate the phone call earlier this afternoon.

As previously mentioned there were concerns identified regarding your performance, As a result the business decision has been made resulting in your employment being finalised within your probationary period. You will be paid your entitlements.

Moreover, As discussed over the phone earlier to support you in securing your next employment opportunity you will not be required to attend the remainder of your notice period; however, you will be paid in lieu in line with your initial notice period.

As this was a business decision within probation, we are not required to provide any further reasoning, as is our entitlement." (emphasis added)

• [10] The termination letter attached to the email states that Mr Haidar was being dismissed during his probation period, he was being provided with one weeks' notice and that his employment would end on 12 May 2025.

• [11] Mr Close submits that the email on 5 May 2025 makes no reference to the actual end date of employment and when that actual date will take effect, therefore it should be considered that Mr Haidar's employment ended on 12 May 2025. Mr Close also argues that because the termination payment occurred 8 May 2025, the timing is inconsistent with immediate termination and further supports that Mr Haidar's employment continued until 12 May 2025.

• [12] Mr Close relies on the decision of Glenn Murray Jones v 4LifeSkills Inc [2023] FWC 3139[3], which he says established that "where an employer's written notice specifies a final day of employment and does not clearly state that employment ends earlier by payment in lieu, the specified final day governs when the dismissal 'took effect'." On a close reading of the Deputy President's decision, it could not reasonably be said that the decision deals with the purported established proposition put forward by Mr Close. Mr Close relied on a second decision, Stefanac v Department of Education Secretary [2020] FWC 1102, however during the hearing he was unable to produce a copy of the decision, and the Commission has been unable to identify the decision based on the citation provided. I do not consider Mr Close's submission pertaining to Jones to be accurate nor are the facts in Jones relevant to the matter before me. As to Mr Close's reliance on Stefanac, I am unable to give regard to a decision that clearly does not exist.

• [13] It is not in contention that Mr Haidar engaged Mr Close on 5 May 2025 immediately after his dismissal to act on his behalf. Mr Haidar made the relevant inquiries of Mr Close as his representative. Mr Close formed the view that Mr Haidar had been dismissed on 12 May 2025 and advised Mr Haidar that he had 21 days from 12 May 2025 in which to file his application. Mr Haidar accepted the advice provided by Mr Close and relied on Mr Close to file his application within the time prescribed by the Act. Mr Haidar had no reason to believe that the information provided by Mr Close was inaccurate.

• [14] Turning to Mr Close's submission that the effective date of dismissal was 12 May 2025. On 5 May 2025, Mr Haidar had been informed verbally that he was being dismissed, and he was not required to return to work out his notice period. On that same day Mr Haidar was also notified by email that he was not required to work out the notice period and was being paid in lieu of notice. Mr Haidar confirmed that he did not return to work after 5 May 2025. Considering Mr Haidar's oral evidence and on a plain reading of the email sent on the 5 May 2025 it is apparent that Mr Haidar was notified that he was being dismissed and paid in lieu of notice.

• [15] Further, I am not persuaded by Mr Close's submission that the timing of the termination payment supports the proposition that Mr Haidar was not paid in lieu of notice because it occurred 8 May 2025, being three days after the notice of termination. Even if I was to consider that the termination occurred on the date the termination payment was made, the application would still have been made out of time. However, it is of no consequence for the reasons set out below.

• [16] Although Mr Close did not raise the issue of representative error in the application or his written submission, it became clear during proceedings that Mr Haidar's application was filed late due to the actions and advice of his representative. In regards to representative error, the established case law states there is a clear distinction between a delay caused by a representative where the employee is blameless and when the employee has contributed to the delay.[4]The actions of the employee are the central consideration in deciding whether the explanation of representative error is acceptable.[5]Where an application is delayed because the employee has left the matter in the hands of their representative and has not followed up their claim, the extension may be refused.

• [17] The reason for the delay was a result of Mr Close providing the wrong advice to the Mr Haidar. It should reasonably be expected that a paid agent who provides advice and representation on employment matters before the Commission, should make the appropriate inquiries or investigations of the client before providing advice. I have formed the view that Mr Close did not make the appropriate investigations and therefore did not properly represent Mr Haidar's case. Had Mr Close made proper inquiries and sought the right information it would have become apparent to him that Mr Haidar had been verbally informed he was not required to work out his notice period and was provided with an email stating he was being paid in lieu of notice. I consider the actions of Mr Haidar's representative to have been beyond his control and somewhat out of the ordinary and unusual. Therefore, I am satisfied that there were exceptional circumstances that warrant the granting of an extension of time.

• [18] I now turn to the remaining factors that I need to consider in section 366(2) of the Act. After receiving the termination letter Mr Haidar contacted Mr Mastrogiannis to ask for his job back. Mr Mastrogiannis denied Mr Haidar's request that he return to his role at Sydney Tools. Mr Haidar also sent correspondence on 12 May 2025 in an attempt to reach a settlement for his general protections claim. Mr Haidar also put Sydney Tools on notice that he had contacted Worksafe about an alleged workplace injury he had suffered during his employment. Whilst I do not consider the attempts to reach an early settlement and the Worksafe inquiry are relevant to this consideration, I am satisfied that other than filing his application, on 5 May 2025 Mr Haidar disputed his dismissal, and he had attempted to have the decision overturned. His attempts to dispute the dismissal weigh marginally in favour.

• [19] There were no submissions made by Sydney Tools and Mr Haidar submits that there would be no prejudice to Sydney Tools if an extension of time were to be granted. Neither party brought to my attention any relevant matter concerning fairness between Mr Haidar and other persons in a similar position. In all the circumstances, I do not consider that an issue of fairness as between Mr Haidar and other persons in a like position arises. I therefore consider these to be a neutral consideration.

• [20] As to the merits of the application, Mr Haidar submits he was dismissed because he was absent due to an injury that occurred at work. Mr Haidar took leave from 19 -27 April 2025 for the alleged workplace injury. Sydney Tools contends that Mr Haidar was dismissed during his probation period for concerns regarding his performance which included amongst other things his excessive phone use, the need to be constantly monitored and failure to follow directions. Sydney Tools submits Mr Haidar's lack of commitment to the role was highlighted on 4 May 2025 when he failed to turn up to work leaving the store short staffed because he had slept in and preferred to spend time with his family.

• [21] The merits of this application are in dispute and where there is a factual dispute the Commission does not determine the merits of a general protections application filed out of time, and I do not intend to do so. I find this to be a neutral factor.

• [22] Having regard to all of the matters listed in subsection 2 of section 366 of the FW Act, I am satisfied that there are exceptional circumstances, due to representative error, warranting an extension of time.

• [23] The matter will proceed to a conciliation conference.

[1] Section 366(2) of the Fair Work Act 2009 (Cth).

[2] Varcoe v ACE Insurance Limited T/A Combined Insurance [2015] FWC 2805 at [20].

[3] Glenn Murray Jones v 4LifeSkills Inc [2023] FWC 3139.

[4] Clark v Ringwood Private Hospital(1997) 74 IR 413, 418‒420; cited in Davidson v Aboriginal & Islander Child Care Agency(1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony's Plumbing Service(2011) 202 IR 59 [35].

Printed by authority of the Commonwealth Government Printer