s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made outside of 21-day time limit - no exceptional circumstances present - extension of time not granted - unfair dismissal application dismissed.

• [1] This decision concerns an application made by Ms Joanna Humphries (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant, who was employed by Nilkanth Fuels Pty Ltd (the Respondent), alleges she was dismissed on 31 August 2025. The unfair dismissal application was lodged by the Applicant on 23 September 2025.

• [2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 394(2) of the Act. As the dismissal took effect on 31 August 2025, the period of 21 days ended at midnight on 21 September 2025. As that day was a Sunday the Applicant had until midnight on 22 September 2025 to file her application. The application was therefore filed 1 day outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3) of the Act.

• [3] The application for an extension of time to file the unfair dismissal application was set down for determinative conference on 30 October 2025, in advance of which the parties filed material in accordance with directions issued. At the determinative conference, the Applicant appeared and gave evidence while the Respondent was represented by Mr Bakul Jayani (Manager) who gave evidence.

• [4] The Applicant commenced work with the Respondent on or around December 2021 as a Console Operator at the Casterton Mobil petrol station. She was not provided with a written contract of employment at any time, worked as a casual employee, generally worked between 20-32 hours per week and received a casual hourly rate of pay of $33.99 per hour. The Applicant states that during her employment all communication relating to her employment including rostering, shift swaps, store performance, cash drops and other operational issues were all communicated via a WhatsApp group chat, called 'Team@Mobil Casterton'.[1]

• [5] On 24 August 2025, Mr Bakul Jayani who was the remote Manager of the business posted the following message on the group chat;

"Hello guys I am posting Monday roster only as we have a new business buyer coming to inspect out business tomorrow and let us know remaining operational management, I will be in Casterton tomorrow keep you guys updated as soon as new updates come and post remaining days roster once got updates. Thanks"[2]

• [6] At 1.12pm on the same day, the Applicant replied in the group chat;

"So is what happened at Coleraine happening in Casterton now and all us works [sic workers] will be out of a job ?????????????????????????

Also why are we only hearing about this now as we have been asking what's going on for the last few weeks but not getting a response about anything."[3]

• [7] The Applicant states she did not receive a response to her question and on 31 August 2025 a new message was posted in the group chat by Mr Jayani in the following terms;

"Hello Guys. New owner is making roster from now on and I have passed your details,` he will contact you for your shifts and also I have sent your availability to him. Thanks"[4]

• [8] In response to this post another employee (Lauren) posted a further question in the group chat on 1 September 2025;

"Hello to the new owner - Do we assume if we haven't been contacted we are not on the new roster? Has anyone else been contracted about this weeks roster"[5]

• [9] Mr Jayani replied to this message on 1 September 2025 in the group chat, stating as follows;

"I spoke with him and he said to contact you guys over the phone today"[6]

• [10] The Applicant states that she took Mr Jayani's response to mean that she would be contacted by the new owner along with her colleagues to discuss employment. She further states that she was not provided with the new owners contact details and nor was she contacted by them. The Applicant says she is aware that other former staff of the Respondent were contacted by the new owner and were either advised they would be given shifts or 'were no longer required'.[7]

• [11] The Applicant states that Mr Jayani started removing people from the WhatsApp group chat from the 1 September 2025[8] and made one final post on 3 September 2025 to the following effect;

"Hello guys can we please drop the store keys to the new owner Thanks"[9]

• [12] The Applicant says she received no formal notice of her dismissal from the Respondent, received no contact from the new owner after 31 August 2025 and assumed approximately two weeks after 31 August 2025 that she had been dismissed with effect from 31 August 2025. At this point she contacted the Fair Work Commission in mid-September, was sent a link to the relevant unfair dismissal application documentation which she completed and filed in the Commission on 23 September 2025.

• [13] Mr Jayani gave evidence that all employees were notified of the business ownership change via the WhatsApp group chat, were given seven days' notice and were provided with a roster covering the 25-31 August 2025 period. He also confirmed that the Applicant worked her last shift om 27 August 2025.[10] He further states that following the business sale on 31 August 2025, the new owner assumed full operational control of the business and in doing so chose to retain some of the Respondent's former employees. He claims that the Applicant was therefore not dismissed by the Respondent but ceased employment as a result of the business sale and change of ownership.[11]

• [14] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances.' 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.[12] Exceptional circumstances may 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 can be considered exceptional.[13]

• [15] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply, if in all the circumstances the Commission considers that it is 'fair' to do so.

• [16] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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);

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

• [17] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.

• [18] As earlier stated, for the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 22 September 2025. The delay is the period commencing immediately after that time until 23 September 2025, although circumstances arising prior to that day may be relevant to the reason for the delay.[14]

• [19] 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.[15] An applicant does not need to provide a reason for the entire period of the delay, although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances. A credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however, all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay.[16]

• [20] The Applicant attributed the delay in filing her application to her uncertainty over her employment status in the wake of the business transfer on 31 August 2025. I accept that the Respondent's communication with its staff was unsatisfactory. There was no direct or clear communication with the staff to the effect that the business had been sold and that the new owner would assume control on 1 September 2025 or that employees of the Respondent may not be offered work with the new owner. That lack of communication would have led to uncertainty on the part of the Applicant.

• [21] While the Applicant may have been uncertain in the two weeks immediately following the transfer of business ownership, she agreed that by mid-September she knew that her employment had ended at which point she immediately contacted the Commission and obtained information regarding the making of an unfair dismissal application. While unable to say with certainty what day she contacted the Commission, she confirmed that it was approximately one week before she filed her application in the Commission on 23 September 2025. This puts the date at which she contacted the Commission on or about 16 September 2025. An explanation for the delay in filing her application after that date was not provided.

• [22] I accept that the Applicant was uncertain of her dismissal until mid-September 2025. That uncertainty may explain why she did not file her application in the two weeks following the 31 August 2025 transfer of business. That uncertainty was resolved in her mind by the time she contacted the Commission on or about 16 September 2025 and obtained advice on how to pursue an unfair dismissal application. The Applicant has not offered an explanation as to why she was unable to file her application prior to when she filed it on 23 September 2025. The Applicant's failure to provide an explanation for the delay after 16 September 2025 tells against a finding of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

• [23] The Applicant did not receive any clear advice of the termination of her employment. She was left to infer that her employment ended on 31 August 2025 on transfer of the business ownership when she received no formal notice from the Respondent and no contact from the new owner. In these circumstances I am not satisfied that she became aware of the dismissal on 31 August 2025. The combination of no advice from the Respondent and no contact from the new owner in the two weeks following the business transfer led the Applicant to infer she had been dismissed on 31 August 2025. This weighs in favour of a finding of exceptional circumstances.

• [24] The Applicant has not taken any other action to contest her dismissal. I regard this factor as a neutral consideration.

• [25] The application was filed one day outside of the 21-day period. While the Respondent cited potential difficulty in accessing business records following the business ownership transfer on 31 August 2025, I find in the circumstances there would be no prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.

• [26] The Act requires me to take into account the merits of the application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[17] it said:

"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."

• [27] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case"[18] for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.

• [28] The Applicant contends that her dismissal was unfair due to a failure of the Respondent to provide her with any notice or advice of her dismissal. The Respondent wrongly contends that it did not dismiss the Applicant and that it was the sale of the business that brought the employment relationship to an end. The business sale was indeed the action that brought the employment relationship to an end, that action being taken at the initiative of the Respondent. In those circumstances, it was clearly the Respondent's action that had the effect of terminating the Applicant's employment.

• [29] I readily accept that the Applicant did not receive formal notice or clear advice of her dismissal but was left to infer that outcome from a lack of shifts with the new owner. That failure of the Respondent might lead to a finding of unfairness were the matter to proceed to a hearing on merits. That said, it is difficult to see what remedy could be awarded if a finding of unfairness were made. There is no possibility of reinstatement given the sale of business. Nor is there in my view any prospect of any compensation as the Applicant would not have remained employed by the Respondent beyond 31 August 2025 even had she been properly notified of her dismissal. In these circumstances, there is no utility to the Application in my view. This weighs against a finding of exceptional circumstances.

Fairness as between the person and other persons in a similar position

• [30] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. 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 therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

• [31] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

• [32] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.

[1] Exhibit A1, Witness Statement of Joanna Humphries

[2] Exhibit A2, WhatsApp message, dated 24 August 2025

[5] Exhibit A3, WhatsApp message, dated 1 September 2025

[8] Exhibit A4, WhatsApp message, dated 1 September 2025

[9] Exhibit A5, WhatsApp message, dated 3 September 2025

[10] Exhibit R4, Timesheet for pay period ending 31 August 2025

[11] Exhibit R1, Witness Statement of Bakul Jayani

[12] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

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

[15] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[17] Print PR3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[18] Kyvelos v Champion Socks Pty Ltd, Print T2421, 10 November 2000, at [14].

Printed by authority of the Commonwealth Government Printer