s.394 - Application for unfair dismissal remedy

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

• [1] Mr. Arunkumar Haradanahally has made an application under s.394 of the Fair Work Act 2009 (Cth) (Act) for a remedy for unfair dismissal. The respondent is the applicant's former employer, Knorr Bremse Australia Pty Ltd.

• [2] Section 394(2) requires that applications of this kind be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). For the reasons I give below, I have concluded that the applicant's dismissal took effect on 29 July 2025. The 21-day period in s.394(2) therefore ended on 19 August 2025. The application was filed on 25 August 2025. The Commission may only allow an extension of time if it is satisfied that there are 'exceptional circumstances' taking into account the matters in s.394(3). I deal with those matters in turn below.

• [3] The applicant took a period of annual leave in June 2025. He was scheduled to return to work on 25 June 2025. He did not return on that day. The applicant was in custody from 27 June 2025 until 12 August 2025.

• [4] On 25 July 2025 the respondent sent a letter to the applicant by email and courier to the residence of the applicant recorded on the respondent's records. The letter queried the applicant's absence, advised that the company had had no contact from the applicant since early June and indicated that the company had made unsuccessful attempts to contact him. The letter concluded by saying:

In the event I receive no response from you by 10am on Monday 28 July 2025 as requested, the Company will have no alternative but to accept the repudiation of your contract and treat your employment as at an end with effect from that time, that is 10am Monday 28 July 2025.

• [5] Because he was in custody, the applicant said he did not receive the letter when it was sent. I accept that to be the case. However, in closing submissions, the applicant accepted that the letter had been received by family members who had contacted a friend and workmate of the applicant shortly after the letter had been received. That friend had in turn contacted the applicant's lawyer, Mr Rajeev. Mr Rajeev did not give evidence. However, on the basis of the evidence of the respondent's Group Human Resources Manager, Mr. O'Brien I find that Mr. Rajeev attempted to contact the respondent on the afternoon of 25 July and again on the afternoon of 28 July 2025. The attempts were unsuccessful. On 28 July Mr. O'Brien attempted to contact Mr. Rajeev. This was also unsuccessful. Mr. O'Brien left a message for Mr. Rajeev to call.

• [6] On 29 July 2025 Mr. O'Brien spoke with Mr. Rajeev. Mr. O'Brien told Mr. Rajeev that as there had been no response to the letter of 25 July 2025 the respondent had elected to accept the applicant's repudiation of his employment contract. The applicant's own evidence was that Mr. O'Brien told Mr. Rajeev on that day that the applicant's employment had been terminated.

• [7] In the same conversation Mr. Rajeev told Mr. O'Brien that the applicant had been in custody for three or four weeks, that he had been in contact with the applicant since his arrest and that he remained in contact with him 'at least weekly.' Mr. Rajeev said he would provide an explanation for the applicant's failure to attend work by 30 July 2025. He did not do so.

• [8] On 31 July 2025 the respondent sent a letter dated 30 July 2025 to the applicant, again by courier and email. The letter confirmed acceptance by the respondent of what it described as the applicant's repudiation and said that the employment of the applicant was taken to be at an end with effect from 10am on 28 July 2025.

• [9] The applicant's evidence was that he did not become aware of the dismissal until 13 August 2025 when he was released from custody. However, in his application, the applicant advised that he was notified of his dismissal on 30 July 2025. The respondent submitted that the applicant was on notice of his dismissal by 29 July 2025 when his solicitor was notified by Mr. O'Brien that the applicant's employment was at an end.

• [10] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[1] Section 117 of the Act provides that an employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination which cannot be before the day the notice is given. A notice of termination which does not comply with s.117 may constitute a breach of the National Employment Standards but may still be effective to bring about the termination of the employment relationship.[2]

• [11] In Ayub v. NSW Trains[3] the Full Bench of the Commission considered the circumstances in which a dismissal would take effect in the case of both dismissal with notice and summary dismissal. In relation to summary dismissal the Full Bench said:

[20] A termination of employment may also occur by way of a summary dismissal. In contractual terms, a summary dismissal is to be characterised as the exercise of an election by the employer to terminate the employment contract in response to a repudiation of the employment contract by the employee constituted by a breach of an essential term, a serious breach of a non-essential term, or conduct on the part of the employee manifesting an intention not to be bound by the contract in the future. An election to terminate a contract on this basis puts an end to the contract at the time the termination is communicated to the other party.

• [12] In relation to the issue of when a dismissal takes effect the Full Bench said:

[35] We see no reason to depart from the above line of authority insofar as it is consistent with the general principle at common law that a dismissal may not take effect prior to it being communicated to the employee. Neither party submitted otherwise. However two questions remain. The first is whether there are any exceptions to this principle, the existence of which are suggested but not identified in Makenja and WorkPac. The second is whether the mere receipt of a communication (whether a letter, fax or email) is sufficient to constitute the communication of the dismissal to the employee in circumstances where the employee has not read the communication immediately upon receipt.

[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this.

• [13] At [42] the Full Bench went on to reject the notion that there were any exceptions to the general proposition established by the authorities that a dismissal cannot take effect for the purposes of the Act before it is communicated to the employee. At [41] and [50] respectively the Full Bench said:

[42] We likewise consider that the mere delivery of a document to an employee's usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document. That is, we do not consider that s.394(2)(a) requires the strict application of a "postal delivery rule" where the employee has a legitimate explanation for not being able to read the document immediately upon delivery. The circumstances in which this may be the case are undoubtedly manifold, but for example if an employee is on an approved period of annual leave and is holidaying away from home when a dismissal letter is delivered, there is no reason to conclude that the date of dismissal is the date of delivery and not when the employee returns home and first has a reasonable opportunity to read the letter.

[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee's usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal. (citations omitted)

• [14] Mr. O'Brien also gave detailed and uncontested evidence about a conversation he had with the applicant on 18 August 2025. He said that the applicant told him on that day that the applicant had had a video call with a friend called Shippa and a work colleague on 27 July 2025 and that the contents of the respondent's letter of 25 July 2025 had been explained to him during that call. He said the applicant told him that the applicant had asked the work colleague, Mr. Rudraradhya, to inform the respondent of his situation. The evidence does not go so far as to show that the applicant had any knowledge of whether Mr. Rudraradhya did inform the respondent or if he had, whether this had any impact on the respondent's foreshadowed decision to terminate the applicant's employment. The applicant would not have been aware of whether his discussion with Mr. Rudraradhya altered the outcome proposed in the letter of 25 July 2025 and the evidence does not establish that the applicant's termination had been communicated to him by 28 July 2025.

• [15] However, the evidence does show that the applicant's solicitor was made aware of the letter of 25 July 2025 shortly after it was sent. He was clearly made aware of the substance of the letter in his conversation with Mr. O'Brien on 29 July 2025.[4] He made an attempt to contact the respondent to discuss the applicant's employment situation and make representations on his behalf. It was Mr. O'Brien's uncontested evidence that on 29 July 2025 he conveyed to Mr. Rajeev that the applicant's employment had been terminated. Mr. Rajeev was an agent of the applicant with the actual or ostensible authority to receive the notice on behalf of the applicant.[5] The dismissal took effect when it was conveyed to Mr. Rajeev on 29 July 2025.

Section 394(3) factors and exceptional circumstances

• [16] The delay is the period between the expiry of the 21-day period and the filing of the application. In this case that is the period between 19 and 25 August 2025. The applicant said that he had been traumatised by his period in custody and was distressed by the loss of his job. He said he attempted to contact the respondent about his job but did not receive a response. He said he was in contact with his lawyer and his union but there were miscommunications with his lawyers. I accept that in some situations, events preceding the delay can contribute to the delay and that the applicant's incarceration up until 12 August 2025 would have made it more difficult, at least to some extent, to arrange for the preparation and filing of an unfair dismissal application during that period.

• [17] I also accept that the applicant was taking steps through his union and his lawyers to progress a challenge to the termination of his employment. The applicant said that on 15 August he attended his solicitor's office and he was advised that a letter would be prepared and sent to the respondent. He was told that if the respondent did not respond to the letter, an unfair dismissal application could be lodged. The applicant described this as the solicitor's 'plan'. The letter was not sent until 18 August 2025. The applicant followed up with his solicitor but did not receive any information about a response to the solicitor's letter. He also followed up with his union. The union sent a letter to the respondent on 20 August 2025 asking when the applicant could expect a response. The respondent did not respond to either piece of correspondence until 25 August 2025. They advised that they were still considering the matter. The applicant was then told by his union that applications had to be made within 21 days of termination of employment. The applicant instructed his union to file the application, and it did so on that day.

• [18] The applicant was actively seeking to contest the termination of his employment soon after his release from custody. He sought legal advice and assistance on 15 August 2025. The applicant did not appear to be aware of the 21-day limitation period until he was advised of it by the union on 25 August 2025. Ordinarily ignorance of the statutory time limit would not provide an acceptable explanation for delayed lodgement. However, the applicant was reasonably entitled to rely on his solicitor for advice about his circumstances and to take appropriate steps to protect his interests. The applicant's solicitor failed to advise the applicant of the limitation period and failed to obtain instructions as to the lodgement of the application. Instead, Mr Rajeev's 'plan' was to send a letter, wait for a response and then file the application.

• [19] Representative error is not limited to mistakes made by a representative. The concept encompasses inactivity of a representative or the failure of a representative to act expeditiously.[6] Mr. Rajeev did not act expeditiously in his client's interests. The error is compounded by the fact that Mr. Rajeev could not have been in any doubt that the applicant's employment had been terminated on 29 July 2025 because that was expressly conveyed to him personally in his conversation with Mr. O'Brien. The actions of the applicant must also be taken into account in assessing the extent to which representative error provides an explanation for the delay.[7] In this respect the applicant is not entirely blameless. He was aware of the termination of his employment but did not provide explicit instructions to file the application until after the deadline had expired. To the extent this was because the applicant was unaware of the deadline, this does not assist the applicant. To the extent the applicant was simply hoping that his representations to the respondent would result in reinstatement, the applicant has assumed the risk that it would not. Nonetheless, in my view the delay is attributable largely to representative error on the part of the applicant's lawyer, Mr. Rajeev.

Whether the applicant became aware of the dismissal after it had taken effect

• [20] I have concluded above that the dismissal took effect on 29 July 2025. I am satisfied on the evidence that the applicant did not personally become aware of the dismissal until sometime after this date. However, I do not accept the applicant's evidence that he only became aware of the dismissal upon his release from custody. It is likely that the applicant was made aware of the content of the letter of 25 July 2025 on 27 July 2025. He was on notice that termination was a real prospect. I also accept that the applicant's solicitor was in regular contact with the applicant and am of the view that it is most likely that the applicant would have been made aware of the dismissal within a week of Mr. Rajeev's conversation on 29 July 2025. The circumstances here were such that there was a period in which the applicant was not personally aware of the dismissal after it had taken effect and the applicant therefore had less than the full 21 days to respond to the dismissal.

• [21] The respondent accepted that the applicant had actively sought to dispute his termination. He had instructed his solicitor to pursue the matter. He had contacted his union and union delegate. He had attended the workplace in person to explain his situation. These factors weigh in the applicant's favour in the overall assessment.

• [22] I do not consider there to be any relevant prejudice to the employer associated with the relatively short delay in this case. This is not supportive of a conclusion that there are exceptional circumstances but neither does it point against it. I regard the issue of prejudice as a neutral factor.

• [23] It is well settled that it is not generally appropriate for the tribunal to resolve contested issues of fact going to the merits for the purpose taking the merits into account under s.394(3)(e) in the assessment of exceptional circumstances.[8] I note that the applicant did not explain why he did not return to work on 25 June 2025 even though he was not placed in custody until 27 June 2025. He argued that he was unable to contact his employer while he was in custody to advise of the reasons for his absence. Given the evidence provided by the respondent, I think it is unlikely that the applicant would have been entirely deprived of an opportunity to at least convey a message to the respondent as to his whereabouts and circumstances, although it is not necessary or appropriate to come to a concluded view about the matter for present purposes. I also note that on Mr. O'Brien's evidence, Mr. Rajeev was given the opportunity to respond to the respondent's letter of 25 July 2025 on the applicant's behalf before the deadline of 10am on 28 July 2025, but again, unfortunately for the applicant, he did not avail himself of the opportunity. For present purposes, I consider that the merits of the application is a factor pointing against a conclusion that exceptional circumstances exist.

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

• [24] Neither party raised any matter to indicate any issue of fairness between the applicant and other persons in a similar position. I regard this as a neutral factor in the overall consideration.

• [25] 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. 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.[9]

• [26] Having taken into account the matters set out above, I am satisfied that there are exceptional circumstances in this case and I propose to exercise my discretion to extend time for the making of the application to midnight on 25 August 2025.

The matter will be relisted for further programming on a date to be advised.

Mr. Woodbury, solicitor, appearing with permission as representative of the Respondent.

[1] Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 at [24].

[2] Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [33].

[3] [2016] FWCFB 5500.

[4] See Application Form F2 at 3.2 paragraph 4, Exhibit R2 at [14] and Exhibit A1 Applicant's email of 16 September 2025.

[6] Burns v Aboriginal Legal Service of Western Australia (Inc), Print T3496 (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at [28].

[7] Clark v Ringwood Private Hospital [(1997) 74 IR 413, at pp. 418‒420.

[8] Nulty v. Blue Star Group Ltd [2011] FWAFB 975 at [36] re equivalent provisions in s.366(2)(d).

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