s.394 - Application for unfair dismissal remedy

• [1] On 1 November 2024, Mr Dean Harkins (the Applicant) filed an application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant alleges that he was dismissed by Isologics Pty Ltd (the Respondent) on or about 16 October 2024 in accordance with his final payslip from the Respondent.

• [2] On 20 November 2024, the Respondent filed its F3 - Employer response to unfair dismissal application, raising a jurisdictional objection on the grounds that the Applicant was not dismissed. In its formal submissions, the Respondent raised a further jurisdictional objection in the alternative, that if the Applicant was found to have been dismissed on his final day of work, being 14 March 2024, then his application was filed out of time.

• [3] A Jurisdictional Hearing was conducted in this matter by Video via Microsoft Teams on 25 February 2024.

• [4] This decision determines the jurisdictional objections only.

• [5] Section 394 of the FW Act provides that:

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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

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

• [6] Section 385 provides the meaning of 'unfairly dismissed' as follows:-

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388."

• [7] The meaning of 'dismissed' is provided at s.386 of the FW Act:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part."

• [8] The Respondent submitted that, on the basis of the materials before the Commission, the Commission should:

"a. be satisfied that the Applicant was not dismissed by the Respondent. As such, find section 390 of the Act has no application to this matter and the Application must be dismissed; or

b. in the alternative, find that the Applicant's final day of employment was 14 March 2024 and that the Application is consequently made out of time in contravention of section 394(2) of the Act."

• [9] The Respondent referred to clause 1 of the Applicant's employment contract, submitting that:

(a) It stated that the Applicant would be employed 'on a casual basis' and 'may be offered casual engagements';

(b) The Applicant agreed and acknowledged that he had 'no guarantee of regular or ongoing work' from the Respondent; and

(c) The Applicant also acknowledged that he may, from time to time, 'work a substantial number of hours and/or have a regular patter of work' for the Company but that would not give him 'any expectation of ongoing work from the Company'.

• [10] The Respondent referred to clause 8 of the Applicant's employment contract, which stated:

"...The Company may offer you work from time to time and if you are available and wish to perform the work, you may accept that work. Each occasion that you work for the Company will be a separate contract of employment (in the same form as this Contract) which ceases at the end of each engagement and stands on its own."

• [11] The Respondent submitted that from February 2023 to March 2024, the Applicant was offered, and accepted, various shifts from the Respondent which depended on the operational needs of the Respondent. The last day the Applicant performed work for the Respondent was 14 March 2024.

• [12] The Respondent submitted that on 15 March 2025, it was experiencing delivery delays, and a supervisor advised the Applicant via text message that he would not be required to work on 18 or 19 March 2024.

• [13] The Respondent submitted that on 19 March 2024, materials had still not been delivered and the supervisor attempted to contact the Applicant by phone to advise that the Applicant would not be required for work on 20 March 2024 but could not reach him. Instead, the supervisor sent the Applicant a text message.

• [14] The Respondent submitted that on 20 March 2024, the Applicant attended the workshop. The Applicant was told by the Respondent that there was no work available for him due to the lack of materials.

• [15] The Respondent submitted that from July to August 2024, the Applicant continued to contact his then supervisor to inquire about the availability of shifts.

• [16] The Respondent submitted that on 27 July 2024, the Applicant attended the workshop. The Respondent submitted that various employees of the Respondent had notified the Applicant that no shifts were available, but that he would be contacted if the workload increased.

• [17] The Respondent submitted that from 20 March 2024 to 16 October 2024, the Respondent issued blank payslips to the Applicant on a weekly basis. The payslips recorded that the Applicant did not work any hours during this period.

• [18] The Respondent submitted that it conducts routine maintenance of its payroll systems and as a part of those maintenance checks, the Respondent will 'clean out' any casual employees who have not worked within the past six months. The Respondent submitted that on or around 16 October 2024, the Respondent's payroll department conducted a 'clean out' of its casual employees which included the Applicant. The Respondent submitted that the Applicant's weekly payslips ceased from this point.

• [19] The Respondent submitted that on 25 October 2024, the Applicant's then supervisor, Mr Anthony Duran, contacted the Applicant to inquire whether he would be available for work. The Respondent submitted that Mr Duran informed the Applicant that because he had not worked any shifts for the past six months, he would need to attend a medical assessment and be deemed fit for work with no restrictions. The Respondent submitted that the Applicant did not obtain a medical assessment and therefore, was not offered any shifts.

• [20] The Respondent submitted that on 31 October 2024, the Applicant called a related entity of the Respondent and left a voicemail requesting a letter of separation. The Respondent submitted that its payroll department were provided this message, further to which it prepared and issued a Centrelink Employment Separation Certificate to the Applicant later that day by email.

• [21] The Respondent submitted that the Commission's power to order a remedy for unfair dismissal arises only if it is satisfied that the Applicant has been unfairly dismissed in contravention of s.382 of the FW Act.

• [22] The Respondent submitted that because the Applicant was engaged on a casual basis, his last day of employment with the Respondent was the last day he performed work, being 14 March 2024. Therefore, the relationship between the Applicant and the Respondent would have concluded on that day without the Applicant being dismissed. The Respondent submitted that there is no jurisdiction for the Commission to exercise its powers conferred by s.390 of the FW Act.

• [23] The Respondent cited the decision in City of Sydney RSL v Balgowan (Balgowan),[1] in which the Full Bench considered whether a reduction in shifts of a casual employee constituted dismissal. At first instance, Commissioner Cambridge had found that the employer repudiated the employment contract by making 'egregious' changes to her employment by reducing her hours, however, the Full Bench overturned this finding. In Balgowan, the Full Bench cited the decision in Kim v ORC International Pty Ltd,[2] in which it was observed that:

"It is difficult to see how this common law concept of repudiation has any work to do in relation to casual employees. At common law a casual employee's contract of employment ceases at the end of each engagement. An employer of a casual employee does not repudiate that contract when it fails to offer another shift."

• [24] Further, the Respondent cited Moutevelidis v ICC Sydney Pty Ltd (Moutevelidis),[3] in which Deputy President Roberts made the following finding in relation to a casual employee who brought unfair dismissal proceedings, claiming she was subjected to a 'slow process of dismissal':

"The Agreement that governed her employment expressly provided that she was employed by the hour with no firm advance commitment to continuing and indefinite work according to an agreed pattern of work. Her contract of employment said that there was no guarantee of ongoing employment as the Applicant would only be required to work in accordance with the company's operational requirements. Each engagement was separate and the employment would come to an end at the conclusion of each engagement."

• [25] The Respondent submitted that the Commission in this matter should follow the decisions in Balgowan and Moutevelidis and find that the Applicant was engaged on a casual basis and he was therefore never dismissed by the Respondent.

• [26] The Respondent further submitted that if the Commission finds that the Applicant was dismissed on 14 March 2024, the Applicant had filed out of time in contravention of s.394(2)(a) of the FW Act. In that regard, the Respondent submitted that the Applicant had not identified any exceptional circumstances for the delay such that the Commission should grant an extension of time for filing.

• [27] For all of the above reasons, the Respondent submitted that there has been no termination of employment at the initiative of the Respondent. Alternatively, if a dismissal is found to have occurred on 14 March 2024, the Application was filed out of time. Accordingly, the Application should be dismissed.

• [28] The Applicant identified 'three points in contention', being:

(a) whether the application was filed within the 21-day period;

(b) whether the Applicant was still an employee or whether the Applicant's employment had been terminated; and

(c) whether the Applicant had an expectation of continued work in his capacity as a casual employee.

• [29] The Applicant filed his Form F2 on 1 November 2024. The last payslip the Applicant received was dated 16 October 2024, which the Applicant submitted means the Respondent considered the Applicant to be employed until that date.

• [30] The Applicant submitted that there had been no reference to his termination date being 20 March 2024. Instead, the Applicant submitted that 20 March 2024 was the date that he was 'stood down'.

• [31] The Applicant submitted that if it was not for the continuous issuing of pay slips, he would have filed an application on an earlier date. The Applicant submitted that:

"To state it was just in incompetence of pay roll or it pay roll programming system does not absolve the companies of there (sic) responsibilities. There (sic) actions resulted when the application was made."

Whether the Applicant was still an employee or had been terminated

• [32] The Applicant submitted that in the statement of Ms Mary Del Busso, People and Culture Manager of the Respondent, Ms Del Busso does not mention that the Applicant had resigned.

• [33] The Applicant submitted that Ms Del Busso's lack of reference in her statement to the Applicant's 'resignation' confirms that the Applicant had not resigned nor was considered to have resigned. However, the Applicant referred to the 'Employment Separation Certificate' dated 31 October 2024, which provides the reason for separation as "resignation". The Applicant submitted the Respondent was "playing it off as [resignation]" via this document.

• [34] Further, the Applicant referred to Ms Del Busso's statement, in which she had stated that the Respondent's payroll system had considered the Applicant to have resigned. The Applicant submitted that the payroll system would have needed to be updated by someone within payroll. The Applicant submitted that:

"With this statement the company confirmed that the applicant was no longer consider (sic) employed by them and as the Applicant had not resigned and it can be considered that they employment was terminated without notice."

The Applicant's expectations as a casual employee

• [35] The Applicant submitted that the Respondent is a subsidiary of Kaefer. The Applicant submitted that he originally applied for work with Kaefer, but was forced to sign with the Respondent. The Applicant's understanding was that all Australian resident tradesmen in the workshop were employed through the Respondent, and the tradesmen on skilled visas were employed under Kaefer.

• [36] The Applicant submitted that he was the only person stood down in the workshop and that no other workers or visa holders were stood down. The Applicant submitted that there would have been ample work available.

• [37] By way of conclusion, the Applicant maintained that he was dismissed by the Respondent, and he did not resign. He submitted that if the Respondent had stopped providing payslips, he would have filed his Form F2 on an earlier date.

• [38] The Respondent has raised two jurisdictional objections to the Applicant's unfair dismissal application:

(a) did the Applicant lodge his application within the statutory timeframe, and if he did,

• [39] It is my intention to determine both matters for the convenience of the parties and the efficiency of any further proceeding.

• [40] It is not in dispute that the Applicant was a casual employee. The Applicant signed a contract which stated that he was a casual employee, which contained the following provisions:

You will be employed by lsologics Pty Ltd (ABN 93 614 949 898) (Company) on a casual basis and may be offered casual engagements under the terms and conditions of this Contract from the Effective Date.

You acknowledge and agree that you have no guarantee of regular or ongoing work from the Company, nor do you have any guarantee or expectation of the number or allocation of working hours or days, and you acknowledge and agree that the Company does not have any obligation to provide you with any work.

You also acknowledge that you may, from time to time, work a substantial number of hours and/or have a regular pattern of work, but that does not give you any expectation of ongoing work from the Company, and instead, you acknowledge that it is a function of the Company's particular operational requirements at that time.

As a casual employee, you do not have set hours of work. The Company may offer you work from time to time and if you are available and wish to perform the work, you may accept that work. Each occasion that you work for the Company will be a separate contract of employment (in the same form as this Contract) which ceases at the end of each engagement and stands on its own.'

• [41] The Applicant's employment offer also stated:

"IsoLogics Pty Ltd (ABN 93 614 949 898) (Company) is pleased to offer you casual employment of the terms and conditions contained in this letter and the attached contract of employment (Contract)."

• [42] The Applicant's letter of assignment identifies that the Applicant will be paid a casual loading:

You will be paid an hourly rate of pay for each hour that you work. Your hourly rate of pay includes a casual loading for ordinary hours which compensates you for all entitlements that permanent employees receive but you do not, such as (but not limited to) annual leave, personal/carer's leave and other entitlements under the National Employment Standards, that casual employees do not have.'

• [43] The Applicant's payslip also identified the Applicant as a casual employee. I have taken into account that the Applicant was a casual employee of the Respondent.

• [44] It is not in dispute that the Applicant's last paid shift was on 14 March 2024. I have taken this into account.

• [45] Surprisingly, the Applicant continued to receive regular payslips from the Respondent, which indicated that zero hours had been worked and that no money would be paid. I have taken this into account.

• [46] I note that the Respondent has not raised a jurisdictional objection in relation to the capacity of the Applicant to lodge an application because he was a casual employee. I take this into account.

• [47] The Applicant filed his application on 1 November 2024. I have taken this into account.

• [48] I do not accept that the Applicant was "stood down" from his employment. If that were the case, then he would be entitled to be paid for the duration of the stand down. On the basis that the Applicant was a casual employee, whose employment commenced and concluded on a daily basis, no stand down was warranted or required.

• [49] Based on the undisputed common law principle that a casual employee's employment ceases at the conclusion of each shift, and the provisions of the Applicant's contract of employment (see paragraphs [9] and [10] of this Decision), I am satisfied and find that the Applicant was not dismissed by the Respondent and therefore has no capacity to submit an unfair dismissal application.

• [50] If I am wrong and the Applicant was terminated by the Respondent, it is necessary to determine the date of the termination in order to ascertain if the Applicant's unfair dismissal application was lodged within the statutory timeframe.

• [51] Why the Respondent would issue a casual employee a payslip when they perform no work in the pay period is beyond my comprehension. However, to be employed, a casual employee must utilize their skills and competencies and actually perform work for which they are remunerated. If the Applicant was not required to perform work past 14 March 2024, then I am satisfied and find that 14 March 2024 was the date he was terminated.

• [52] As a result, the Applicant lodged his application some 211 days late.

• [53] The Commission can only extend the time for an Applicant to lodge their unfair dismissal application in exceptional circumstances.

• [54] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act:

"(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

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

• [55] The principles defining an 'exceptional circumstance' are well established. A Full Bench of Fair Work Australia in Nulty v Blue Star Group [2011] FWAFB 975 (Nulty), held:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

• [56] The only reason that the Applicant has submitted for his late application was that he believed he was still employed because he was still receiving pay slips - even though they showed that the Applicant performed no work and received no pay since March 2024. Whilst this is an unusual practice, I do not accept that an experienced and highly skilled tradesperson of the Applicant's standing would believe that he was still employed when he was not working any shifts. I am satisfied and find that this is not an 'exceptional circumstance' warranting granting an extension of time for filing his unfair dismissal application.

• [57] For the reasons stated above, I am satisfied and find that the Applicant was not dismissed. The Applicant signed a contract to say that he was a casual employee, was paid a casual loading and worked a variety of hours and shifts in the manner of a casual employee. The Applicant's employment ceased on 14 March 2024 because he was not offered any future shifts due to a downturn in work.

• [58] Alternatively, if the Applicant was dismissed on 14 March 2024, I am satisfied and find that there are no exceptional circumstances which would warrant the granting of an extension of time to allow the Applicant to lodge his application.

• [59] I uphold both jurisdictional objections of the Respondent.

• [60] As a result, the Applicant's unfair dismissal application is dismissed.

[1] [2018] FWCFB 5.

[2] [2016] FWC 3876.

[3] [2024] FWC 343.

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