s.365 - Application to deal with contraventions involving dismissal

IPSOS Pty Ltd, Dominic Pedlar and Zainab Javaid

Application to deal with a general protections dismissal dispute - whether application filed out of time - whether extension of time required - application not out of time

[1] On 10 November 2025, Ms Lim made an application to the Commission for a general protections remedy under section 365 of the Fair Work Act 2009 (Act). She claimed that she had been dismissed by IPSOS Pty Ltd in contravention of Part 3-1 of the Act. The application named Dominic Pedlar and Zainab Javaid as additional respondents.

[2] An application under section 365 must be filed within 21 days after the applicant was dismissed, unless the Commission allows an extension of time: section 366(1) of the Act. In this case, there was a controversy as to whether Ms Lim's application had been filed in time. That centred on when Ms Lim was notified of her dismissal.

[3] IPSOS communicated the dismissal to Ms Lim in an email sent to her on 17 October 2025 (Termination Email). IPSOS contended that that was the date of dismissal. Consequently, it argued that Ms Lim was required to file her application by 7 November 2025, meaning that it was out of time. It initially opposed the Commission granting Ms Lim an extension of time.

[4] Ms Lim did not dispute that she received the Termination Email. However, she claimed that she did not see it until 9 November 2025, as it had been sent to an old email address that she did not regularly check. The application was filed the next day.

[5] I attempted to resolve the controversy in correspondence with the parties, but was unsuccessful. As a result, I made directions for the purposes of determining when Ms Lim was dismissed and whether, if an extension of time was required, I should grant it to her.

[6] From the material that IPSOS filed, its contentions may be distilled to the following: The Termination Email was sent to an email address that Ms Lim had provided to IPSOS. After the date on which it was sent, Ms Lim "essentially ceased contact" with IPSOS. This was in "stark contrast" to her "meticulous attention to detail and preference for vigorous engagement with - and in-depth explication of - issues relating to her employment" that she had previously demonstrated. In the absence of her taking any steps after 17 October 2025 to demonstrate that she believed she was still employed, which, based on her previous conduct, would have been expected, she can be taken to have been "fully aware" that her employment had come to an end on that date.

[7] Ms Lim filed voluminous material. It is necessary to note only two factual matters for present purposes: first, Ms Lim stated that the Termination Email had been sent to her "old email address"; and second, she maintained that she did not see the Termination Email until 9 November 2025. Ms Lim contended that in the circumstances, the dismissal did not take effect until that day. In the alternative, she submitted that were I to find that the dismissal took effect on 17 October 2025, I should exercise my discretion to grant her an extension of time.

[8] In an email to my Chambers received on 17 February 2026, the solicitors for the respondents wrote:

"In light of the significant amount of material filed by the Applicant regarding the out-of-time jurisdictional objection, the related costs in responding to this material and the ongoing evidentiary uncertainty as to when the Applicant actually viewed the email terminating her casual employment, the Respondents have decided not to press the jurisdictional objection and for the Commission to make a determination based on the material filed to date."

[9] I do not accept that there is "ongoing evidentiary uncertainty as to when the Applicant actually viewed the email terminating her casual employment". Ms Lim provided evidence that she saw the Termination Email on 9 November 2025. IPSOS did not directly rebut that evidence, or otherwise seek to challenge it (for example, by requesting a hearing so as to be able to cross-examine Ms Lim). Rather, it asked me to draw inferences, supported by minimal evidence, that Ms Lim must have seen the email on the day it was sent to her.

[10] Although IPSOS relied on the fact that it sent the Termination Email to an address that Ms Lim had provided, it did not dispute that it was her "old" address. I observe that the application attached a number of emails between Ms Lim and IPSOS in the weeks prior to 17 October 2025 that were from and to her "new" email address.

[11] Having regard to the parties' evidence and submissions, I accept Ms Lim's evidence and find that she first saw the Termination Email on 9 November 2025.

• [12] That finding largely determines the matter. In Mohammed Ayud v NSW Trains[1] the Full Bench of the Commission explored the question of when a termination of employment takes effect. While it did so in the context of the Commission's unfair dismissal jurisdiction, its conclusions are apposite to the current proceedings. Relevantly for present purposes, the Full Bench observed:
• (1) There was no reason to depart from earlier authorities in so far as they were consistent with the general principle at common law that a dismissal may not take effect prior to it being communicated to the employee.[2]

• (2) There is no exception to that general proposition for the purposes of the Act.[3]

• (3) The legislation should not be read so that the 21-day period to lodge an application could begin to run before the employee becomes aware that they have been dismissed, or at least had a reasonable opportunity to become so aware.[4]

• (4) In a situation where an employee is informed by email that they have been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of their usual email address. There may be exceptions to that, for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would not operate to delay the date of effect of the dismissal.[5]

[13] In the present case, the Termination Email was not sent to Ms Lim's "usual email address". While there is no evidence that she was in any way precluded from accessing her "old" email account, there is nothing to suggest that she refused to do so. IPSOS led insufficient evidence to enable me to conclude that Ms Lim had a "reasonable opportunity to know of [her] dismissal" prior to her seeing the Termination Email on 9 November 2025.

[14] Consistent with the Full Bench's reasoning in Ayub, I find that Ms Lim's dismissal did not take effect until she became aware of it on 9 November 2025. The 21-day period to lodge her application under section 365 began to run at that time. It follows that the application was not filed out of time.

[15] The matter will be listed for conference on a date to be advised.

[1] [2016] FWCFB 5500

[2] [2016] FWCFB 5500 at [35]

[3] [2016] FWCFB 5500 at [41]

[4] [2016] FWCFB 5500 at [36]

[5] [2016] FWCFB 5500 at [50]

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