s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - application out of time

• [1] On 10 July 2025, Mr James Nixon made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Employment Hero Pty Ltd (Employment Hero).

• [2] Section 394(2) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.

• [3] In his application, Mr Nixon stated that his employment ended on 16 May 2025. Therefore, the application has been made outside of the 21-day period prescribed by s.394(2) of the FW Act.

• [4] Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application. To determine whether there are exceptional circumstances, the factors in subsections 394(3)(a)-(f) of the FW Act are considered.

• [5] In summary, I have found that Mr Nixon ceased working for Employment Hero on 16 May 2025. The application should have been made on 6 June 2025 to comply with s.394(2)(a) of the FW Act. The application was therefore made 35 days outside of the 21-day limit.

• [6] I have found that the circumstances in which the application was made are not exceptional, according to the factors in s.394(3) of the FW Act, and so I have not granted an extension of time to file the application.

• [7] Mr Nixon commenced employment with Employment Hero in May 2019. He was employed as a Senior Technical Writer.

• [8] Mr Phil Williams, Manager - People Partnering (APAC) explained that a Senior Technical Content Writer was primarily responsible for writing articles and blogs for Employment Hero's website, in its 'Help Centre'. The articles gave guidance to users of the Employment Hero's HR software application. The role required skills in writing and also a high degree of organisation and the ability to meet deadlines.

• [9] Mr Williams explained that in mid-2025, Employment Hero decided to move away from the process of using written 'Help Centre' articles on its website and to instead use automated workflows and AI (artificial intelligence) driven communications to assist users while they were using the software application.

• [10] Mr Williams explained that this operational change resulted in a number of roles becoming redundant, including Mr Nixon's role of Senior Technical Content Writer and new roles created including a number of Content Designer roles. Such roles would need skills predominantly in user experience design and researching customer behaviour, rather than the written skills which were necessary for the Content Writer role.

• [11] Mr Williams said that in preparation for the new structure, Employment Hero conducted a Skills Assessment Matrix, whereby the skills of employees affected were considered for possible redeployment in new roles. It did not appear to Employment Hero that Mr Nixon had the necessary skills to be redeployed in any of the Content Designer roles. Accordingly, Employment Hero made a decision to consult with Mr Nixon about potential redundancy, along with various other employees in the business.

• [12] Mr Nixon was asked to attend meetings with representatives of Employment Hero on 13, 14 and 16 May 2025. The meeting on 13 May 2025 was to advise Mr Nixon of the potential redundancy of his role. The meeting on 14 May 2025 was a consultation meeting and the meeting on 16 May 2025 was an outcome meeting. In the meeting on 16 May 2025, representatives of Employment Hero advised Mr Nixon that that his employment was being terminated due to reason of redundancy and the dismissal would take effect immediately.

• [13] On 21 May 2025, Mr Nixon emailed Ms Amanda Gordon, People Partner, requesting clarification on:

1. his outstanding long service leave payout;
2. whether his redundancy payment was calculated on his full salary or reduced amount due to his salary sacrifice; and
3. whether he could have his final redundancy letter amended to include a clear statement regarding his shareholding and share option rights.

• [14] On 23 May 2025, Ms Gordon responded to Mr Nixon's queries and confirmed that:

1. due to an administrative error, Mr Nixon's long service leave had not been paid, however this had been rectified on 22 May 2025;
2. Mr Nixon's redundancy payment had been calculated based on his full salary rate, rather than his rate under his salary sacrifice; and
3. Mr Nixon held 3,500 in vested options, and that these remain under the same terms and conditions as agreed upon at the time of acceptance.

• [15] On 1 July 2025, Mr Nixon replied to Ms Gordon's email of 23 May 2025, asking for clarification as to why a superannuation guarantee contribution had been applied to his long service leave payout from 22 May 2025 and if this was intentional.

• [16] On 9 July 2025, Ms Gordon responded to Mr Nixon's email. Ms Gordon and Mr Nixon exchanged a series of emails that day in relation to the superannuation guarantee contribution which had been applied to Mr Nixon's long service leave payout. Ms Gordon sent a further email to Mr Nixon about this issue on 10 July 2025. On the same day, Mr Nixon filed the unfair dismissal application.

• [17] On 15 July 2025, Mr Nixon sent an email to Mr Gordon which relevantly provided:

I've been trying to resolve each matter one at a time in good faith - including the long service leave payment, payslip discrepancies, and superannuation classification - but unfortunately, progress has stalled. Given that my redundancy letter did not include a clear breakdown of my long service leave entitlement, a ledger showing hours and rate applied, or a full outline of my final entitlements, I've now lodged an application with the Fair Work Commission to assist in resolving the matter.

• [18] Ms Gordon and Mr Nixon exchanged further emails on 17 and 29 July 2025.

Was the application made within 21 days after the dismissal took effect?

• [19] As the Full Bench has stated in relation to a general protections application, but equally applicable here, "[t]he 21 day period prescribed... does not include the day on which the dismissal took effect."[1]

• [20] There is no dispute that the dismissal took effect on 16 May 2025. The final day of the 21-day period was therefore 5 June 2025 and ended at midnight on that day.

• [21] I find that the application was made on 10 July 2025 and note that this is not in dispute.

• [22] As the application was not made within 21 days of the date on which the alleged dismissal took effect, I need to consider whether the Commission should allow a further period for the application to be made.

Should the Commission allow a further period for the application to be made?

• [23] Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(b) whether Mr Nixon first became aware of the dismissal after it had taken effect;

(c) any action taken by Mr Nixon to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(f) fairness as between Mr Nixon and other persons in a similar position.

• [24] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

• [25] I set out my consideration of each matter below.

• [26] For the application to have been made within 21 days after the dismissal took effect, it should have been made by midnight on 6 June 2025. The delay is the period commencing immediately after that time until 10 July 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

• [27] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]

• [28] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where an applicant has not provided any reason for any part of the delay.[5]

• [29] Mr Nixon said that he submitted this application outside the 21-day time limit due to a combination of serious payroll and entitlement irregularities, unclear communication from Employment Hero, and the compounding effects of mental health burnout following a redundancy process which he now believes was procedurally flawed and potentially discriminatory.

• [30] Mr Nixon said that he is on the autism spectrum and disclosed this to Employment Hero during his employment. Mr Nixon said that in 2024, a workplace dispute resulted in external mediation, where it was agreed he could record all meetings related to performance or HR processes. During the redundancy, he requested to record three meetings. Only one was recorded, and the file was never sent to him, despite his imminent loss of access to company systems. Mr Nixon said that he was not provided with meeting recordings or written notes from any of the consultations. Mr Nixon said that this lack of structure and clarity had a profound effect on his ability to process what had occurred or seek timely recourse, considering his disclosed autism spectrum condition.

• [31] Mr Nixon said that he requested the skills assessment used to exclude him from redeployment to the Content Designer role but this was never provided. Mr Nixon said that during the redundancy process, he was offered a Support Consultant role, which was not aligned with his qualifications or experience. He had recently returned from 37 days of preapproved annual leave and was back only two weeks before termination. No skills consultation was held in that time. Prior to leave, Mr Nixon's performance review resulted in 3/3 and 2/3 stars.

• [32] Mr Nixon said that the redundancy process was deeply destabilising, particularly because of the rushed communication and his inability to fully comprehend or process what was happening within the 21-day filing window. Mr Nixon said following the redundancy, he was in a state of severe emotional and cognitive shock.

• [33] Mr Nixon said that he made good faith efforts during this time to resolve the matter directly with Employment Hero. Mr Nixon said that he sought clarification, requested correction of payslips, and asked for transparency in line with Fair Work and NSW Industrial Relations standards. However, Mr Nixon said that the responses he received from Employment Hero were delayed, contradictory, and at times dismissive. Mr Nixon said that this ongoing ambiguity significantly impacted his confidence and mental state.

• [34] Mr Nixon said he does not have any living parents, and his only remaining family, a half-sister, assured him would look into the matter. Mr Nixon said that it was not until much later, when his travel agent questioned his final documents, that he discovered his Long Service Leave had been omitted, and several inconsistencies in pay and separation documents emerged. These discoveries added to the confusion and distress he was experiencing.

• [35] Mr Nixon said his half-sister had a mental health episode resulting in Mr Nixon having no contact with her from about 23 May 2025 to the end of June 2025. When Mr Nixon's sister renewed contact with him, she was aggressive and unhelpful so he was forced to navigate the system alone and without assistance.

• [36] Mr Nixon said that throughout June 2025, he experienced a significant mental health decline. His Fitbit began flagging unusually low heart rate variability (HRV) readings (dropping from 60 to below 30), and he was increasingly overwhelmed by suicidal thoughts. Mr Nixon said that this was not merely emotional distress but a period of severe depressive illness that materially affected his ability to act, decide, or seek formal assistance.

• [37] Mr Nixon provided a letter from Dr Rina Daluz, Psychologist dated 7 August 2025. Dr Daluz confirmed that Mr Nixon had seen her on ten occasions since January 2024, and that Mr Nixon has a formal diagnosis of Asperger's Syndrome and experiences significant anxiety. Dr Daluz confirmed that in a counselling session in May 2025, Mr Nixon advised that he had lost his job and that he intended to rely upon his half-sister and a colleague for assistance in lodging an application with the Commission. Dr Daluz confirmed that in a subsequent session in July 2025, Mr Nixon informed her that his half-sister and colleague had withdrawn their support, leaving him feeling isolated, emotionally overwhelmed and unsupported. Dr Daluz noted that although Mr Nixon was aware of the 21day timeframe to lodge an application, he was unable to do so due to the impact of depressive and other symptoms. Dr Daluz advised in her professional opinion, these symptoms significantly impaired Mr Nixon's psychological capacity to take timely action during a critical period. Dr Daluz concluded by stating that it is her clinical impression that Mr Nixon's delay in lodging the application was directly attributable to the mental health difficulties that Mr Nixon was experiencing at the time.

• [38] Mr Nixon said that it was only in late June 2025, when he focused on an upcoming holiday to Japan, a place deeply meaningful to him, that his depression began to lift. With some clarity returning, he finally reached out to Legal Aid in early July 2025. He then filed the application on 10 July 2025, as soon as he felt mentally stable and confident enough to do so.

• [39] During the hearing, Mr Nixon confirmed that on 9 July 2025, he received Ms Gordon's response to his email dated 1 July 2025. The following day, he contacted Legal Aid then filed the application the same day after receiving legal advice. Mr Nixon confirmed that he felt well enough by 1 July 2025 to file the application but did not file the application then because he waited for a response to his email of that date from Employment Hero. Mr Nixon waited for Employment Hero's response because based on something he read online, he believed that the Commission would require him to resolve the matter first before lodging the application. Mr Nixon is also unfamiliar with the process of obtaining legal advice and lodging an application with the Commission and this was made more challenging because of his autism spectrum condition.

• [40] Mr Nixon submitted that that this series of events, including his diagnosed disability, lack of parental support, internal confusion caused by missing or inconsistent termination documents, and the documented mental health crisis he experienced, constitute exceptional circumstances under s.394(3) of the FW Act.

• [41] I found Mr Nixon to be a genuine and credible witness. I accept his evidence that he experienced significant distress following the dismissal, that he has an autism spectrum condition and that that throughout June 2025, he experienced a significant mental health decline. This evidence has been verified by Dr Daluz whose professional opinion is that Mr Nixon's delay in lodging was directly attributable to the mental health difficulties. These matters weigh in favour a finding that there are exceptional circumstances for the delay in filing in respect of the period prior to 1 July 2025. However, these circumstances do not explain the delay in filing during the period from 1 July and 10 July 2025. Although Mr Nixon may have found it difficult to navigate the process of obtaining legal advice and lodging an application with the Commission because of his autism spectrum condition, there is no medical evidence before me which establishes this. Mr Nixon's belief that the Commission would require him to resolve the matter first before lodging the application was incorrect and does not weigh in favour of a finding of exceptional circumstances. I believe that it is more likely that the main reason that Mr Nixon delayed filing the application was because he was waiting for Employment Hero's response to his email of 1 July 2025. Based on the evidence before me, I find that the reasons for the delay in filing the application from 1 July 2025 do not weigh in favour of a finding of exceptional circumstances.

Whether Mr Nixon first become aware of the dismissal after it had taken effect?

• [42] There is no dispute between the parties that Mr Nixon was notified of the dismissal on 16 May 2025. This is not a matter which weighs in favour of a finding that there were exceptional circumstances.

What action was taken by Mr Nixon to dispute the dismissal?

• [43] Mr Nixon raised concerns with Employment Hero about entitlements and documents on 21 and 23 May 2025 and on various dates in July 2025. Mr Nixon did not specifically raise concerns or dispute the dismissal in this correspondence. Mr Nixon explained during the hearing that he was concerned about the dismissal but that due to his autism spectrum condition, it was difficult for him to process and communicate these concerns and that he was more readily able to communicate concerns about calculation and recording of entitlements. I accept Mr Nixon's explanation about these matters however there is no basis for me to make a finding that Mr Nixon took action to dispute the dismissal before he filed the application on 10 July 2025. As such, this is not a matter which weighs in favour of a finding that there were exceptional circumstances.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [44] Mr Williams gave evidence that extending the time will put an enormous administrative burden on Employment Hero given the extra work that will be involved in responding to the claim. Employment Hero considered that the restructure that led to Mr Nixon's redundancy was complete and so the team involved have moved on to other matters, documentation has been completed, and the business has strategically moved on to respond to the way the industry is moving. Mr Williams said that there will be significant additional time and resources needed if Employment Hero is required to deal with this matter further. I accept Mr Williams' evidence in this regard, which was not challenged by Mr Nixon. I find that this is not a matter which weighs in favour of a finding that there were exceptional circumstances.

• [45] Mr Nixon was dismissed on the ground of redundancy. A person will not be regarded as unfairly dismissed under s.385 if the dismissal was a case of genuine redundancy. Under s.389(1) of the FW Act, a person's dismissal was a case of genuine redundancy if:

(a) the employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

• [46] Section 389(2) provides that a person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise or the enterprise of an associated entity of the employer.

• [47] There does not appear to be any dispute between Mr Nixon and Employment Hero that Employment Hero no longer required Mr Nixon's role of Senior Technical Writer to be performed by anyone because of changes in its operational requirements. Further, Mr Nixon and Employment Hero agreed during the hearing that Mr Nixon was not covered by a modern award or enterprise agreement during his employment so s.389(1)(b) is not relevant to the consideration of whether the redundancy was genuine.

• [48] Mr Nixon's application suggests that he had the skills to be considered for the Content Designer role and that his exclusion from redeployment may result in the Commission being satisfied that the dismissal was not a case of genuine redundancy because of s.389(2). If the Commission is not satisfied of this matter, the Commission cannot proceed to determine whether the dismissal was unfair.

• [49] In order to establish that the dismissal was not a case of genuine redundancy because of s.389(2), it seems to be that Mr Nixon would need to show that he was more qualified than other employees appointed to the Content Designer role. As I do not have any evidence before me to form a view about this matter, I regard the merits of the application as a neutral consideration.

Fairness as between Mr Nixon and other persons in a similar position

• [50] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [51] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

(i) Mr Nixon's diagnosed disability, lack of parental support, and the mental health crisis he experienced prior to 1 July 2025; and

(ii) Mr Nixon waiting for Employment Hero's response to his email of 1 July 2025 which did not arrive until 9 July 2025.

(b) Mr Nixon becoming aware of the dismissal before it took effect;

(c) no action taken by Mr Nixon to dispute the dismissal prior to making the application;

(d) the employer identifying potential prejudice;

(f) no issue of fairness arising between Mr Nixon and other persons in a similar position.

• [52] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[6] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually have no particular significance, when taken together can be considered exceptional.[7]

• [53] The reasons for the delay do not weigh in favour of a finding of exceptional circumstances as Mr Nixon was well enough to file the application by 1 July 2025 but delayed doing so until he received correspondence from Employment Hero on 9 July 2025. In addition, the time that Mr Nixon became aware of the dismissal, the fact that no action was taken by Mr Nixon to dispute the dismissal prior to making the application, and potential prejudice to Employment Hero are all matters which do not weigh in favour of a finding of exceptional circumstances. The matters in subsections 394(3)(e) and (f) are neutral considerations.

• [54] Having regard to all of the matters listed at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.

• [55] As I am not satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time.

• [56] Therefore, Mr Nixon's application for an unfair dismissal remedy is dismissed. I order accordingly.

[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

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