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[87]
[2026] FWC 811
General information, not legal advice.
Fair Work Commission
2026-03-12
Original judgment source is linked above.
s.394 - Unfair dismissal
[1] On 29 December 2025, Mr. Kaylass Poorun's employment with Woolworths Group Limited (Woolworths) ceased.
[2] On 2 February 2026, he made an application claiming he was unfairly dismissed from his employment. Unfair dismissal applications are required to be made within 21 days of the dismissal taking effect. His application was 14 days late.
[3] The Commission has power to extend the time for making the application if the Commission is satisfied that there are exceptional circumstances under s 394(2)(b).
[4] On 12 March 2026, I heard Mr. Poorun's extension of time application by way of a determinative conference by Microsoft Teams. Mr. Poorun attended and represented himself. Woolworths was represented by Mr. Trystan Bass and Mr. Aaron Kelly who are Employee Relations Case Specialists at Woolworths. Ms. Roxanne Pearce, the store manager at the Hawthorn Metro store where Mr. Poorun was employed, attended to give evidence.
[5] For the following reasons, I have decided not to grant an extension of time. The application in this matter is therefore dismissed.
WAS THE APPLICATION MADE WITHIN 21 DAYS AFTER THE DISMISSAL TOOK EFFECT?
[7] Mr. Poorun's application was filed on 2 February 2026. His dismissal occurred on 29 December 2025. It was filed 14 days late. I therefore need to consider whether to make an order to extend the period to make the application.
[8] I may allow a further period for an unfair dismissal application if I am satisfied there are exceptional circumstances, taking into account:
(b) when Mr. Poorun first became aware of the dismissal after it had taken effect.
(c) any action taken by Mr. Poorun to dispute the dismissal.
(d) prejudice to Woolworths (including prejudice caused by the delay).
(f) fairness as between Mr. Poorun and other persons in a similar position.
[10] One reason Mr. Poorun gave for the delay was confusion over whether or not he was still employed. In his application he wrote:
It was unclear if I was still employed as after my discussion with the store manager on the day I received my termination letter, I assumed I was still employed because she said she would organise transfer to another store if I provided the name and employee number of the new line manager. I still had access to the WorkJam App and Successfactors until the 11th of January 2026, and my leaves had not been paid out until the 12th of January 2026, so I assumed I was still employed before that.
[11] On 29 December 2025, Mr. Poorun received a letter from Woolworths entitled "Review of Your Ongoing employment" ("the Termination Letter") which relevantly included the following text (the emphasis is in the original).
I am writing to you in relation to your casual engagement with the Woolworths Group, and your recent advice about your availability.
Casual shifts are offered based on a mix of permanent and casual hours to meet customer demand. Your limited availability (times, days, and hours) do not meet the needs of our customer led rostering and operational demands.
As a result of your limited availability and failing to make yourself reasonably available for shifts to meet the business needs, you are not meeting the requirements for ongoing engagement as a casual team member.
Accordingly, the decision has been made to terminate your casual employment, effective immediately and without further notice. A certificate of service and your last 3 payslips will be emailed to you after the final pay is processed.
[12] On 29 December 2025, after he had received the termination letter, Mr. Poorun contacted Ms. Pearce. They had a telephone conversation about the letter. Ms. Pearce gives an account of that conversation in her witness statement:
...Kaylass called me to confirm his understanding of the outcome of the review of employment (Outcome Meeting). During the Outcome Meeting: I told Kaylass that his employment was terminated effective immediately (that is, on 29 December 2025). I said words to the effect. As a result of your limited availability and failing to make yourself reasonably available for shifts to meet the business needs, you are not meeting the requirements for ongoing engagement as a casual team member Accordingly, the decision has been made to terminate your casual employment, effective immediately and without further notice.
Kaylass stated that she [sic][3] wished to seek a transfer to another Store, including potentially Woolworths Middle Camberwell. I advised her [sic] that the termination was final, however if she [sic] was able to secure a position at another Store as part of a transfer, the termination could be rescinded. In order to transfer to another store, the team member has to apply to the other store and if successful, request that their current store affects the transfer in the system.
[13] Ms. Pearce elaborated on her account in the Conference. She essentially affirmed what she had written in her witness statement. Mr. Poorun did not contradict her account of that telephone conversation.
Woolworths transfer process and correspondence regarding that process
[14] Ms. Pearce also gave evidence on the transfer process which she refers to in her statement. It is the practice of Woolworths that following a termination, the dismissed worker can apply to other Woolworths stores. If they are successful in obtaining employment at another store, then the store from which they were dismissed can affect a transfer, and the transfer effectively gives continuity of employment as if they had not been terminated.
[15] On 29 December 2025 at 1:56 PM, Mr. Poorun sent an email to Ms. Pearce concerning this transfer process:
As per our discussion over the phone, could you please transfer me to the Middle Camberwell store
As we discussed, you will need to speak with the other store regarding your request. Once you have done so, please provide me with the name and payroll number of your new line manager.
Upon receiving those details, I will be able to process your transfer.
[17] Mr. Poorun followed up the next day on 30 December 2025 at 9:40 AM:
I just spoke to the Middle Camberwell store manager, and he said he won't be able to have me transferred to their store.
I had updated my availability yesterday before I received the letter. That availability is only for the months of January and February, but to keep my employment ongoing I am willing to provide the more consistent availability as below:
Monday to Friday: 6:00 pm - 9:00 pm Saturday and Sunday: 6:00 am - 12:00 pm. Would this be something that we can work with?
Mr. Poorun's continued access to Woolworth's online systems
[18] Another reason Mr. Poorun gives for his "confusion" is the fact that between 29 December 2025 until 11 January 2026 he continued to have access to Woolworth's online systems such as "the WorkJam App" and "Successfactors". Mr. Bass explained this was "regrettable". It was a result of the delay in IT being notified of Mr. Poorun's dismissal.
Wrong reason in the Separation Certificate dated 21 January 2026
[19] Mr. Poorun relies on the fact that Woolworths made a mistake in the reason given for his termination in the Separation Certificate dated 21 January 2026. In that form under the heading "Reason for Separation" the "Misconduct of Employee" box was ticked.
[20] Mr. Poorun raised this in an e-mail to Mr. Pearce dated 27 January 2026 which stated:
I recently received the separation certificate and the reason for leaving has been recorded as misconduct. I contacted the People advisory to check why the reason has been put as misconduct and I have been told to ask you. I am not aware of any misconduct, and the basis for my termination as I understand was lack of availability. I had also updated and increased my availability in WorkJam just before the termination letter was sent to me, so even lack of availability is not really a valid reason for my termination. Could you please tell me why the reason for leaving is misconduct in my separation certificate? The reason should be that you are unable to provide work to me given that I had increased my availability before my termination. Can this be rectified on my separation certificate, please?
[21] In her witness statement, Ms. Pearce conceded this reason was not accurate: "The separation certificate should reflect that termination was due to insufficient availability, and not misconduct. This was an administrative error, and I have since requested Woolworths payroll provide a new separate certificate."
[22] On the day of the hearing, I was forwarded a copy of a new amended separation certificate issued on 5 March 2025 which is also inaccurate. In the "reasons for separation" section it states Mr. Poorun "abandoned his employment". It beggars belief that an employer the size of Woolworths would compound the first error by making a second one. The availability of "other" in the "reasons for separation" section of the form surely enables a notation that he "failed to make himself available for shifts".
[23] The termination letter Mr. Poorun received on 29 December 2025 was unequivocal and straight forward. It said: "the decision had been made to terminate your casual employment effective immediately and without further notice."
[24] I accept Ms. Pearce's evidence that in her 29 December 2025 conversation with Mr. Poorun he was told the termination decision was final. He was also told that if he was able to secure a position in another store then the termination decision could be rescinded. The availability of the transfer process and the rescission of the termination was entirely contingent on Mr. Poorun obtaining a job at another Woolworths store. I accept Ms. Pearce explained this to him. He should therefore not have been confused as to whether he had been terminated.
[25] The post termination access of Mr. Poorun to the employee systems of Woolworths was regrettable. Mr. Poorun's access to these systems is consistent with ongoing employment, however, after he had been provided with the clear terms of the termination letter, and following the explanation Ms. Pearce had given him, it should have been abundantly clear he was terminated. His access to systems until 11 January is insufficient to displace what he should have clearly understood on 29 December 2025.
[26] The Separation Certificate argument is not logical. It is in the nature of separation certificates that they are only available after your employment is terminated. The fact that the reason for separation stated in the certificate is wrong should not lead to confusion as to whether or not you are terminated. You receive a separation certificate because you are separated from your employer because your employment has ended by termination or resignation. The issue of the separation certificate should have led to further confirmation of the clear communication he received on 29 December 2025 that his employment had been terminated.
[27] Mr. Poorun had provided no good reason for the delay. This factor counts against a finding of exceptional circumstances.
WHEN DID MR. POORUN FIRST BECOME AWARE OF THE DISMISSAL AFTER IT HAD TAKEN EFFECT?
[28] In his application Mr. Poorun states "based on the termination letter I would say 29 December 2025". He became aware of his dismissal on the day it occurred. This factor is neutral to a finding of exceptional circumstances.
WHAT ACTION WAS TAKEN BY MR. POORUN TO DISPUTE THE DISMISSAL?
[29] In his application, and in his evidence at the conference, Mr. Poorun gave two instances he says amounted to action to dispute his dismissal. One was his pursuit of the transfer to another store and the request of Ms. Pearce to affect it, the other was seeking advice from an unnamed advisor.
[30] Neither of these circumstances amount to action taken to dispute his dismissal with his employer. Mr. Poorun conceded this in the conference. It follows Mr. Poorun took no action to dispute the dismissal with his employer. This factor counts against a finding of exceptional circumstances.
WHAT IS THE PREJUDICE TO WOOLWORTHS (INCLUDING PREJUDICE CAUSED BY THE DELAY)?
[31] Woolworths claims no prejudice as a result of the delay or otherwise. This factor is neutral to a finding of exceptional circumstances.
[32] Mr. Poorun was a casual employee. For a person to be protected from unfair dismissal under s 390, he must have completed a minimum employment period (MEP) of six months under s 382. A casual employee's period of employment only counts for the assessment of the MEP if the employee is a "regular casual employee" employed on a "regular and systematic basis" (ss 384 and 12).
[33] The case law on the meaning of "regular" and "regular and systematic" casual employment establish:
[34] Mr. Poorun commenced employment with Woolworths' on 28 November 2009. In the conference, he said he had been available for shifts on Saturday or Sunday 6:00 AM to midday. He also said he had "worked those hours for many, many years, more than ten years at that store". This is the extent of the evidence he gave on the frequency and pattern of shifts he had worked at the Hawthorn store over the longer term.
[35] Woolworths' submissions give the more recent history of Mr. Poorun's shift pattern:
Since 29 May 2025, the Applicant worked only 2 shifts (totalling 8 hours). The last shift that the Applicant worked for the Respondent was a 3 hour shift on Saturday 15 October 2025. The last shift prior to this was a 5 hour shift on Saturday 28 June 2025. In December 2025, the Applicant had only worked 1 shift for the prior 5 month period, due to limiting their own availability and prioritising other employment.
[36] Mr. Poorun did not contest this evidence. In the conference he said the reason he did not work many shifts was because Woolworths did not offer them. The reason for the lack of shifts is immaterial to an assessment of whether Mr. Poorun was a regular casual who worked on a regular and systematic basis.
[37] On the uncontested evidence in the last six months of his employment he worked two shifts only, one on 28 June 2025 and one in 15 October 2025. He did not work from 15 October 2025 to his termination on 29 December 2025. During this period, he did not work according to a repetitive pattern. Two shifts cannot be characterised as a system of work according to a method or plan. In those circumstances, he cannot be said to have worked as a regular casual or on a regular and systemic basis.
[38] The evidence I have on the shift pattern he worked from 2009 until June 2025 is very limited. The evidence of the last six months establish he could not be described as a regular casual. The pattern of shifts he worked was not regular or systematic. If this case went further it is likely the Commission would find Mr. Poorun did not meet the MEP. It is therefore likely he would not be found to be a person protected from unfair dismissal.
[39] This application has low merit. This counts against a finding of exceptional circumstances.
FAIRNESS AS BETWEEN MR. POORUN AND OTHER PERSONS IN A SIMILAR POSITION
[40] Woolworths made no submissions on this factor. Mr. Poorun submits:
"I hope it will bring some changes regarding how dismissal is processed and handled in favour of employees working for similar companies. Perhaps better rights and protection laws for casual employees, and also there should be more transparency in the process. The reason for termination according to what will be in the company's records and what will be put in the separation certificate should be clearly mentioned in the termination letter.
"Cases of this kind will generally turn of their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may be related to matters currently before the Commission or matters which have been previously decided by the Commission."
[42] The decision of the Deputy President in Pearcedale infers what is required is a similar fact comparison between the applicant and the other persons in a similar position. The submissions of Mr. Poorun make no comparison between his position and others in a similar position. His submissions, as I understand them, propose changes to the existing law.
[43] No compelling submissions were made on this factor. It is therefore neutral to a finding of exceptional circumstances.
IS THE COMMISSION SATISFIED THAT THERE ARE EXCEPTIONAL CIRCUMSTANCES, TAKING INTO ACCOUNT THE MATTERS ABOVE?
Three factors count against an extension of time being granted
[44] Mr. Poorun gave no good reasons for his delay: This factor counts against a finding of exceptional circumstances under s 394(3)(a).
[45] Mr. Poorun to no action taken to dispute the dismissal with his employer: Mr. Poorun took no action to dispute the dismissal with his employer between his termination and the filing of his application. This factor counts against a finding of exceptional circumstances under s393(3)(c).
[46] Low Merits: In the last six months of his employment, Mr. Poorun was not a regular casual working on a regular and systematic basis. It is likely the Commission would find he was not a person protected from unfair dismissal. This application therefore has low merits. This counts against a finding or exceptional circumstances under s 393(3)(e).
[47] Three factors are neutral to an assessment of exceptional circumstances:
[48] I conclude the reasons for the delay under s 394(3)(a), action taken to dispute the dismissal under s 394(3)(c) and the merits under s393(3)(e) count against an extension of time granted. The three other factors in s 394(3) are neutral. Therefore, on balance, considering all the factors under s 394, I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.
[1] Singh v BSG 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] Mr. Poorun is inexplicably misgendered throughout the statement.
[4] Angele Chandler v. Bed Bath N Table Pty Ltd [2020] FWCFB 306, [11].
Printed by authority of the Commonwealth Government Printer
Kaylass Poorun
Woolworths Group Limited [2026] FWC 811