s 394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - out of time application - consideration of s 394(3) factors - no exceptional circumstances apply - jurisdictional objection upheld

[1] This decision arises from an application to the Fair Work Commission (Commission) for an extension of time for the lodgement of an application for an unfair dismissal remedy (Application), pursuant to s 394 of the Fair Work Act 2009 (Act). Mr Jayakumar Pandiyan (Applicant) states that he was notified of his dismissal from employment with Tata Consultancy Services Limited (Respondent) on 27 November 2025, and his termination took effect on that date. The Application was lodged on 20 December 2025.

[2] The Act outlines a 21-day time limit for initiating the Application. The date of 27 November 2025 is accepted as the date on which the Applicant's dismissal took effect, and so the Application should have been lodged by 18 December 2025. The Application is therefore lodged 2 days outside of the statutory time limit set out in s 394(2)(a) of the Act:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

(c) any action taken by the person to dispute the dismissal; and

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

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.'

[4] Pursuant to s 394(3) of the Act, this decision will determine whether the Applicant has established any 'exceptional circumstances', such as to allow his Application outside the statutory time limit.

[5] In determining this Application, the Commission considered the Application and the Respondent's Form F3 Response to the Application filed with the Commission on 11 February 2026.

[6] On 18 March 2025, directions were issued to the parties setting out the manner in which the Application was to proceed to Hearing (Directions). The parties complied with the Directions. In particular:

(a) On 25 January 2026, the Applicant filed the witness statement of Jayakumar Pandiyan dated 25 January 2026, together with annexures;

(b) On 3 February 2026, the Respondent filed the witness statement of Prabal Chatterjee dated 3 February 2026, together with annexures; and

(c) On 11 February 2026, the Applicant filed a Statement in Reply from of Jayakumar Pandiyan dated 11 February 2026.

[7] The Hearing of the Application occurred on 13 February 2026, over Microsoft Teams (Hearing).

[8] On 6 June 2005, the Applicant commenced employment with the Respondent.

[9] He was first deputed to Australia in September 2016. From that point onwards, the Applicant claimed the Respondent repeatedly kept him on temporary deputation status, instead of converting him to a local Australian employee, despite his repeated requests.

[10] In October 2022, the Applicant became an Australian citizen.

[11] The Applicant claimed that throughout 2025, the Respondent withheld projects from him, and both parties agree that the Applicant received no pay from late May/early June 2025.

[12] On 14 October 2025, the Applicant exchanged a number of text messages with the Respondent's human resources department. At one point he was advised:

No, allow me to explain. This is not going to be a termination. It will be like a Council resignation wherein you will send in your resignation e-mail saying that I'm resigning you to (sic.) personal reason. So it'll be a smooth exit. We are not going to terminate, yes.

[13] On 15 October 2025, the Applicant lodged an application with the Commission under s 372 of the Act (C2025/10202 Jayakumar Pandiyan v Tata Consultancy Services Limited). That matter was allocated to Deputy President Wright. On 28 October 2025, a conciliation conference occurred between the parties. The matter did not resolve and was subsequently closed by the Commission on 4 November 2025.

[14] On 18 November 2025, the Applicant received a medical certificate that outlined that he was_'...suffering from a medical condition and Stress (will see Gastroenterologist and Psychologist is unable to attend work from 18/11/25 to 18/12.25 inclusive'._

[15] The effective dismissal date was identified as 27 November 2025. On that date, the Applicant sent the Respondent the following email:

Greetings to you, Thanks for being courteous and accommodating my emails and discussion, really appreciate your empathy and human touch

I have worked for 20 years and 6 months, contributed significantly to build TCS from 67000 employees to 614000 employees

Worked for customers from America in west and Australia in the east and UK in the middle

I was an Ambassdor of TCS at all times, I always followed our core values (LIREL) and Tata Codes

I am feeling proud that I have worked for an organisation who share 66% of profits for the charitable trusts, no organisation in the word does like this

I have been going through midlife crisis, health challenges, geographical and demographical issues due to citizenship change, growing daughters, ageing parents

I need to recover myself and recharge and hence looking for a better option and I think our TCS early retirement would help me

Could you please do the needful and show your grace and wishing thoughts and actions to me and to my family

[16] On that date the Respondent replied to the above email as follows:

Subject: RE: Request for early Retirement_Acceptance

This is with reference to your email dated 27-Nov-2025 seeking early retirement from

In this regard, we would like to inform you that your request for early retirement is accepted and as discussed, your last working date will be 27-Nov-2025.

You are required to contact the Separation team to complete your full and final

settlement. Please submit the company owned property/assets in your possession for

processing your final settlement and dues with the Company.

Your Service Certificate and Release letter will be issued to you upon completion of your

We wish you all the best for your future endeavors.

[17] The Applicant also received a 'relieving letter' that was dated 18 December 2025, though the Applicant said he did not receive it until 12 January 2026. It provided:

As you embark on this new journey, we thank you for your services and commitment throughout your tenure in the company.

Please be informed that you stand relieved of duty from the services of the organisation from the close of office hours of November 27, 2025.

We take this opportunity to emphasize the obligations of the confidentiality and non-disclosure agreement which you had signed during the course of your employment with the Company.

We request that you continue to bestow the same degree of commitment in protecting the

Intellectual Property of the company as you have agreed to uphold as per the terms of the

confidentiality and non-disclosure agreement. We request you to strive and ensure that the trade secrets, confidential and the intellectual property that were developed when you were in the employment of the company continue to be protected and are not compromised in any way.

We wish you all success and happiness in your endeavors.

On behalf of the TCS family, I extend to you and your family our best wishes for continued good health and contentment in your retired life. Have a fruitful retirement ahead!

[18] The Applicant lodged the Application on 20 December 2025, two days out of time. The Respondent has raised a number of jurisdictional objections to the Application, being:

(d) The Applicant was not an employee of the Respondent in Australia at the time of the alleged dismissal. Instead, the employment relationship was governed exclusively by the laws and employment of India at the time of separation.

[19] This decision deals only with the jurisdictional objection that the Application is out of time.

[20] S 394(2)(a) of the Act sets out the 21 day statutory time limit starts from the day after 'the dismissal took effect.' There is no dispute regarding when the dismissal took place, and I find that the Applicant's dismissal took effect on 27 November 2025.

• [21] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd ('Nulty').[1] While Nulty was decided under the general protection provisions of the Act, the definition of 'exceptional circumstances' has been held to have the same meaning where it appears in other sections of the Act, most notably s 394(3) of the Act.

[22] All factors outlined in s 394(3) must be considered when deciding whether or not any 'exceptional circumstances' have been established by the Applicant. Even if any 'exceptional circumstances' are established, this is merely the jurisdictional gateway for the exercise of the Commission's discretion to extend the time for filing an unfair dismissal application. In other words, 'exceptional circumstances' may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the Application 'out of time'.

[23] I turn now to the criteria set out under s 394(3) of the Act.

[24] In his first statement, the Applicant submitted the following reasons for delay:

I did not lodge my unfair dismissal application within 21 days because:

TCS avoided issuing any termination letter or clear communication. Instead, they used pressure, coercion, and manipulation to force me to resign. This created confusion about my employment status.

TCS stopped my salary from 27 May 2025, even though I was still in Australia and unable to travel due to visa delays. I was supporting my family using credit cards and struggling to pay rent and utilities.

A medical certificate dated 18 November 2025 confirms I was suffering from stress and required medical treatment.

My wife was recovering from postpartum depression, and I was the primary carer for our three young daughters.

TCS repeatedly told me to travel to India and "discuss" my employment there, delaying my understanding that dismissal had already occurred.

f. TCS's known pattern of using jurisdictional tactics

The 2019 FWC decision involving TCS shows that TCS has previously used deputation arguments to deny that a dismissal occurred. This contributed to my confusion, as TCS again used similar tactics to avoid acknowledging their actions.

[25] Contrary to the Applicant's submission at subparagraph 'a.' above, there was clear communication of, and acceptance of, the Applicant's resignation on 27 November 2025. His employment status was clear from that point.

[26] While the evidence establishes that the Applicant had not been paid for approximately six months, it does not follow that this circumstance precluded him from lodging the Application. Filing fees in the Commission are minimal, and subject to possible waiver on application.

[27] Regarding Applicant's submission at subparagraph 'c.' above, the Applicant submitted that due to prolonged stress, financial hardship, and coercion, he developed depression, anxiety and physical health issues. His general practitoner issued:

(b) A mental health care plan diagnosing depression; and

[28] Insofar as the Applicant contends the delay was caused by psychological injury and reduced functional capacity following the end of employment, the Applicant relies on supporting medical material, including a medical certificate dated 18 November 2025.

• [29] In the decision of the Full Bench in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank where the majority (Watson VP and Smith DP) observed:[2]

_'_After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person's life, and such effects are unfortunately not unusual.'

[30] I accept that the material in relation to the Applicant's submission at subparagraph 'c.' above supports that the Applicant experienced stress and illness in the period following the end of his employment, and that he engaged with medical treatment and referral pathways. I also accept that psychological injury, may provide a satisfactory explanation for delay.

[31] The difficulty for the Applicant is that the Commission must be satisfied not merely that the Applicant experienced stress, but that the stress and associated incapacity caused the failure to lodge within time.

[32] The medical material relied upon by the Applicant supports that he was experiencing stress and engaged with treatment. However, the evidence does not provide a detailed functional assessment linked to the specific task of lodging an application within time.

[33] The same can be said for the Applicant's submission regarding family responsibilities. While added responsibilities are held, it cannot logically be put that filing the Application in time was precluded.

[34] Regarding the Applicant's submission at subparagraph 'e.' above, as will be seen below, the asserted ongoing engagement occurred prior to the resignation/retirement.

[35] Regarding the Applicant's submission at subparagraph 'f.' above, this will be dealt at the submission regarding s 394(3)(f) of the Act below.

[36] In the Applicant's reply witness statement dated 11 February 2026, the Applicant claimed he was not out of time because the dispute began in October 2025, when he filed his s 372 application with the Commission. He submitted that the filing of his application on 15 October 2025 was well within the statutory time limit, and that matter was never closed. He claimed the Application is a continuation, not a new matter.

[37] The Application currently before the Commission is clearly a different application to the s 372 application that was before Deputy President Wright. I do not consider any reasonable person could confuse, or consider continuous, the two proceedings, particularly where those earlier proceedings had been closed. This is not an acceptable reason for delay.

[38] The Applicant stated he only received the relieving and service letters only on 12 January 2026, which were predated to 18 December 2025.

[39] In all of the circumstances, I am not satisfied that the Applicant has established that any or all the reasons advanced prevented him from lodging an application within the statutory period. The explanations for delay are therefore not compelling. This factor weighs against granting an extension.

[40] In all the circumstances, the Commission cannot be satisfied that any or all of the Applicant's stated reasons for filing the Application out of time constitute exceptional circumstances, as contemplated by the statute. This factor weighs in the Respondent's favour.

S 394(3)(b) - Whether the Person First Became Aware of the Dismissal After it Had Taken Effect

[41] For the reasons set out above, I am satisfied that the Applicant became aware of his dismissal on 27 November 2025, when he resigned/retired.

[42] The Applicant submitted the following regarding this factor:

1. I only realised that I had effectively been dismissed after the dismissal had taken

• TCS refusing to allocate any project to me from January 2025.

• TCS refusing to accept my reporting at the India office on 29 September 2025.

• HR Lead Usha telling me on 17 October 2025 to resign immediately.

[43] Clearly, each of the dates referenced by the Applicant were before the dismissal took effect, not after. Nonetheless, I consider this is a neutral factor in this case.

S 394(3)(c) - Any Action Taken by the Person to Dispute His Dismissal

[44] This factor concerns any action taken by the Applicant to dispute the dismissal after it occurred. The focus is on steps taken by the Applicant to challenge the termination of his employment or to pursue related rights, particularly in the period shortly after dismissal.

[45] In his submission, the Applicant refers to his attempt to contact the Respondent's management team from 'January 2025 onwards', and to the s 372 application before Deputy President Wright. As with the previous factor, however, the actions referred to by the Applicant were before dismissal, not after, and the first action taken by the Applicant after the resignation/retirement was the lodgement of the Application on 20 December 2025.

[46] Nonetheless, I consider that this is a neutral factor in my consideration.

[47] The Respondent made no relevant submission regarding this consideration.

[48] Accordingly, I consider that this is a neutral factor in my consideration.

• [49] This is an unfair dismissal claim. I cannot make any findings on contested matters without a hearing on the evidence. In Kyvelos v Champion Socks Pty Ltd, the Full Bench of the Australian Industrial Relations Commission observed it 'should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues'.[3]

[50] In the matter of Kornicki v Telstra-Network Technology Group ('Kornicki') the Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In Kornicki, the Commission observed:

The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.

[51] I adopt the reasoning of the Full Bench in Kornicki in relation to the consideration of merits and consider that this is a neutral factor in my consideration.

S 394(3)(f) - Fairness as Between the Person and Other Persons in a Similar Situation

• [52] The Applicant relied on the decision of Deputy President Bull in Sahni v Tata Consultancy Services Ltd ('Sahni'), and submitted: [4]

TCS deputation employees are repeatedly placed in vulnerable positions.

Despite employees requesting localisation and suitable roles being available in Australia, TCS routinely refuses to convert them to local employees.

Instead, TCS issues repeated deputation or 'internal transfer' agreements, even when the employee has been performing the same work in Australia for many years.

This practice appears designed to avoid Australian employment obligations and keep employees in a dependent and insecure position

The 2019 decision shows a pattern of TCS using jurisdictional arguments to block access to justice.

I acted in good faith and was prevented from lodging earlier due to circumstances outside my control.

Allowing my application promotes fairness and prevents employers from exploiting deputation arrangements to avoid Australian employment protections.

• [53] In Sahni, Deputy President Bull found that:[5]

It is not uncommon for multi-national companies to place their employees at a location overseas on a temporary basis including Australia on the understanding that they will return to their country of origin at the end of their temporary location.

If an employee has secured visa rights to remain in the overseas country including Australia, then whether they choose to remain in that country is a choice that they make. In this case Mr Sahni has determined not to return to India. That is a decision he is free to make. That choice, however, means that his employment with TCS remains ongoing until they either determine that they will dismiss Mr Sahni, or that he resigns. However, at this point in time having regard to section 386 of the Act, there has been no dismissal.

[54] Sahni contains no criticism of the conduct of the Respondent, and accepting the Application out of time would not advance fairness as between the Applicant and other persons, such as Mr Sahni, in a similar situation. I consider that this is a neutral factor in my consideration.

[55] As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any weight was the absence of any acceptable reason for the delay. That factor weighed in the Respondent's favour.

[56] I am persuaded therefore that, in the overall balance, there were not exceptional circumstances pursuant to s 394(3) of the Act. The Application for the extension of time is dismissed.

Ms N Shankar, appearing on behalf of the Respondent.

Ms R Shrivastava, appearing on behalf of the Respondent.

Applicant filed reply submissions on 11 February 2026.

[1] [2011] FWAFB 975.

[2] [2015] FWCFB 287, [15].

[4] [2019] FWC 8094.

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