Fair Work Act 2009

s.394 - Unfair dismissal

• [1] On 7 February 2025, Mr. Marcus Saliba ceased working at Hume City Council (HCC).

• [1] On 3 March 2025, he made an application claiming he was unfairly dismissed from what he alleged was his employment with HCC. Unfair dismissal applications are required to be made within 21 days of the dismissal taking effect. His application was 3 days late.

• [2] The Commission has power to extend the time for making the application if it is satisfied that there are exceptional circumstances under s 394(2)(b).

• [3] For the following reasons, I have decided not to grant an extension of time for the making of this application.

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

• [4] The 21-day period does not include the day on which the dismissal took effect. The dismissal took effect on 7 February 2025. The final day of the 21-day period was 28 February 2025 and ended at midnight on that day.

• [5] Mr. Saliba's application was filed on 3 March 2025. It was made 3 days late. I therefore need to consider whether to extend the period to make the application.

• [6] 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. Saliba first became aware of the alleged dismissal after it had taken effect;

(c) any action taken by Mr. Saliba to dispute the alleged dismissal;

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

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

• [7] Each of these matters must be considered in assessing whether there are exceptional circumstances.[1]

• [8] Before I turn to those matters there are relevant facts that will place those factors in context.

The contract of employment with AGA and 10 February e-mail from AGA

• [9] On the morning of the determinative conference, HCC filed a copy of a "contract of employment" between Mr. Saliba and Apprentices Group Australia (AGA). In his evidence, Mr. Saliba identified the document and his signature. He confirmed he signed the contract on 6 October 2023. It was marked as Exhibit A1 ("the AGA Contract").

• [10] Under the terms of the AGA Contract, Mr. Saliba agreed:

• He was employed by AGA "for the period of [his] apprenticeship" (clause 6).
• The definition of "Host Employer" in the contract was "a client of AGA at which the employee is placed to perform work" (Clause 1 with emphasis added).
• He must "perform duties as directed by AGA and the Host Employer, as consistent with the Contract of Training" (Clause 7.1(a)).
• "During the employment [he] would devote ... all... [his] time and attention during working hours, except [during] leave allowed by this agreement" (Clause 9).
• He "must work the hours as directed by AGA and the Host Employer which may change from time to time" (Clause 10).
• "A return by the Host Employer does not constitute a termination of employment within the meaning of Part 3-2 of the Fair Work Act".

• [11] The AGA Contract contained obligations for AGA to pay Mr. Saliba as follows:

• It must pay Mr. Saliba in "accordance with the minimum rate of pay specified under the [relevant] Award in the Training Contract" (Clause 19.1).
• During Mr. Saliba's employment, "the Host Employer may change. Where this occurs AGA must pay the minimum rate applicable to the work undertaken by the Employee as applicable to the Host Employer" (Clause 19.2).

• [12] One of the documents Mr. Saliba filed is an e-mail dated 10 February 2025 from Catherine Guttenbell who Mr. Saliba described as his "apprenticeship agent" at AGA. The e-mail was headed "End of Placement with Hume Council" ("The 10 February e-mail" with emphasis added). It relevantly states:

"I am writing to inform you that your placement with Hume Council has concluded, and you have been returned to AGA as your primary employer. This decision has been made in accordance with the terms and condition of employment outlined in your apprenticeship contract. Your placement ended with Hume Council on Friday 7 February 2025."[2] (emphasis added)

• [13] Mr. Saliba maintains he was employed by HCC and was dismissed by it on 7 February 2025. Based on this argument, he commenced this application against HCC which he filed three days late. He now makes an application to extend time under s 394.

• [14] I will now consider the factors under s 394(3) that I must take into account in an assessment of whether there where exceptional circumstances.

• [15] At the hearing, Mr. Saliba gave three reasons for his delay in filing the application.

"Back and forth" on the telephone with Ms. Guttenbell

• [16] Mr. Saliba explained he was delayed in bringing the application because he was involved in a "back and forth" in telephone conversations with Ms. Guttenbell. This occurred because he wanted to clarify the reasons why his relationship with HCC had ended following his 7 February conversation with Ms. Guttenbell where she told him to return the property of HCC. Mr. Saliba gave evidence that, when he asked for an explanation, Ms. Guttenbell had said he was "not terminated but continued to be employed by AGA".

• [17] In the 10 February e-mail Ms. Guttenbell gave a detailed explanation why his relationship with HCC was ended[3] in the following terms:

"Further to your request for clarification, I am writing to outline the reasons provided by Hume Council regarding the conclusion of your placement. The concerns raised are as follows:

• Communication Issues: Failure to inform Hume Council about incidents, missed tasks, or issues such as irrigation problems. For example, the irrigation issue last Thursday, which was not reported, resulted in damage to both the tractor and the grounds (photos attached).
• Ground Maintenance: Failure to cut one of the grounds for three weeks leading up to the Christmas break, without informing anyone (photos attached). This matter was previously discussed in a meeting with AGA and Hume Council, where you were unable to provide an explanation or take responsibility.
• Incident Reporting: Failure to report issues such as irrigation breaks and potholes.
• Task Completion: Skipping grounds without notice, missing areas during mowing, and not completing ground audit sheets despite sufficient time being allocated. Audit sheets were often weeks or months behind.
• Pre-Start Sheets: Consistently failing to complete pre-start sheets, either in paper form or through the app. When asked, you mentioned app issues but had not reported this to anyone for resolution.
• Engagement and Responsibility: Hume Council noted incidents of you falling asleep during drives before obtaining your license, showing limited interest in tasks, and reluctance to attend TAFE or field days due to travel concerns.
• Accountability: A tendency to deflect responsibility and blame others when issues were raised. Hume Council indicated that you often became defensive during discussions about performance concerns.

Hume Council advised that these issues were raised with you over multiple meetings and phone calls but, despite these efforts, they observed no significant improvement."

• [18] Another reason Mr. Saliba gave for his delay was that he was "concerned" about a "legal threat" that Ms. Guttenbell had made against him if he did not return the property" of HCC.

• [19] Mr. Saliba also said he was "unsure about the process" of making an unfair dismissal application and was unaware of the 21-day time limit. He said he was first informed of the unfair dismissal jurisdiction of the Commission by a "family member" toward the end of the 21-day time limit.

• [20] Exceptional circumstances are out of the ordinary course, unusual, special or uncommon. The circumstances do not have to be unique, unprecedented or rare.

• [21] The back and forth with Ms. Guttenbell where he requested an explanation could explain part of the delay. The 10 February e-mail explains the reasons why his relationship with HCC ended. It follows the failure to explain only lasted three days. The reasons for the end of his relationship were fully explained by the 10 February e-mail. This cannot provide a reason beyond 10 February.

• [22] Mr. Saliba could not explain why the legal threat by Ms. Guttenbell would lead to a delay in bringing the proceeding. I therefore cannot rely on it as an adequate reason.

• [23] It is well-settled ignorance of the law is not exceptional but routine. It follows that ignorance of his rights, and the time limit prescribed for an unfair dismissal, is not an adequate reason for a delay.

• [24] None of the reasons Mr. Saliba gave for the delay are adequate reasons. In those circumstances, this factor counts against an extension of time being granted.

When did Mr. Saliba first become aware of the dismissal after it had taken effect?

• [25] Mr. Saliba conceded, based on his 7 February conversation with Ms. Guttenbell, he knew his relationship with HCC was over. This factor is a neutral consideration in an assessment of whether an extension of time should be granted. He had the benefit of the full 21 days to commence the proceeding.

What action was taken by Mr. Saliba to dispute the dismissal?

• [26] Mr. Saliba recalled contacting HCC after his relationship with the Council was over.

• [27] He rang the Human Resources Department at HCC to get an explanation of what had happened to him. He could not remember "precisely" what was said in this conversation. Mr. Saliba did remember saying that "my employer (by which he meant AGA) called me and told me that I was not terminated". The person from HR said, "I will look into it." She rang back and told him "We can't do anything about it because you are still employed by AGA".

• [28] This factor required Mr. Saliba to explain the action he had taken to dispute the dismissal. The word "dispute" means to "question the truth, validity or correctness" of an action. Asking for an explanation why the relationship had ended is not disputing the dismissal.

• [29] Mr. Saliba did not dispute his "dismissal" with HCC. This factor therefore counts against an extension of time being granted.

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

• [30] HCC conceded there would be no prejudice if an extension of time were to be granted. This factor is therefore neutral in a consideration of whether to extend time.

• [31] All the evidence before me including: the AGA Contract; the e-mails he received from AGA (particularly the 10 February e-mail); and his own oral evidence confirms Mr. Saliba was employed by AGA and was placed by AGA at HCC consistent with the terms of the AGA Contract. He admitted he had no contact with HCC until he was placed there by AGA.

• [32] There was clearly no employment relationship between HCC and Mr. Saliba. It follows it cannot be established that he was terminated "at the initiative" of HCC. He continued to be employed by AGA after the placement.

• [33] This proceeding has been brought against a Council that was not his employer. Therefore, it cannot succeed. The lack of merit counts strongly against an extension of time being granted.

Fairness as between Mr. Saliba and other persons in a similar position

• [34] No party made submissions on this factor. Therefore, this factor is neutral to a consideration of exceptional circumstances.

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

• Reasons for Delay: Mr. Saliba has no adequate reasons for delay. This factor counts against an extension of time under s 394(3)(a).

• Action to dispute the dismissal: Mr. Saliba took no action to dispute the alleged dismissal by HCC. This factor counts against an extension of time being granted under s 394(3)(c).

• Merits: Mr. Saliba has commenced a proceeding against a Council which did not employ him. The merits of the application are strongly against an extension of time being granted under s 394(3)(e).

• [35] The considerations in s 394(3)(b), (d) and (f) are neutral factors in an assessment of exceptional circumstances for the purposes of s 394(3):

• Notification of the Dismissal: Mr. Saliba was notified of his alleged dismissal on 7 February 2025 by his conversation with Ms. Guttenbell concerning the return of the HCC property. He had the benefit of the full 21-day period to lodge his unfair dismissal application.
• Prejudice to the employer: There is no evidence of prejudice to HCC.
• Fairness between persons No submissions were made on fairness arising between Mr. Saliba and other persons in a similar position.

• [36] I conclude the reasons for the delay under s 394(3)(a) count against an extension of time being granted. As Mr. Saliba took no action to dispute his dismissal, this counts against an extension of time under s 394(3)(c). This proceeding has been brought against a party that was not his employer. The lack of merit in the proceeding counts strongly against an extension of time being granted under s 394(3)(e). All the other factors in s 394(3)(b), (d), and (f) are neutral.

• [37] Three factors count against an extension of time being granted, including the lack of merit which counts strongly against an extension of time The other factors are neutral. On balance, taking into account all the factors under s 394(3), I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.[4]

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

[4] PR785630.

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