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[2025] FWC 3528
General information, not legal advice.
Fair Work Commission
2025-11-24
Original judgment source is linked above.
s.365 - Application to deal with contraventions involving dismissal
Application to deal with general protections dismissal dispute - date that the dismissal took effect - extension of time - application determined to be made within time - employer objection dismissed
[1] This decision concerns two questions in relation to an application made by Mr Frederic Dubus (the Applicant) under section 365 of the Fair Work Act 2009 (Cth) (FW Act) against his former employer, GemLife Administration Pty Ltd (Respondent).
[2] The first question concerns the date that Mr Dubus's dismissal took effect. Mr Dubus contends that his dismissal with the Respondent took effect on 10 October 2025.[1] The Respondent contends that Mr Dubus's dismissal took effect on 15 September 2025.[2] The first question determines whether Mr Dubus's general protections dismissal dispute (Dismissal Application) was filed within the 21 day time period specified in section 366(1)(a) of the FW Act. The Dismissal Application was filed with the Fair Work Commission on 13 October 2025.[3]
[3] The second question only arises for consideration if the day that dismissal took effect is determined to be 15 September 2025. That would produce the result that the Dismissal Application was filed 27 days after the dismissal took effect. The second question is whether an extension of time should be granted under section 366(2) of the FW Act.
[4] Both questions were the subject of a hearing that I conducted on 19 November 2025. Mr Dubus appeared for himself. Ms Kerry Gibb appeared for the Respondent with permission granted under section 596(2)(a) of the FW Act. Mr Dubus gave evidence and was cross-examined. Ms Tracey Greenwood (the Respondent's People and Culture Manager) gave evidence. Mr Dubus did not cross-examine Ms Greenwood, albeit that I asked some questions of Ms Greenwood at the hearing. The Respondent's only other witness, Mr Adrian Puljich (the Respondent's Director and CEO), was not required for cross-examination. All the evidence and submissions made by the parties has been considered.
[5] For the reasons explained below, I have determined the day that Mr Dubus's dismissal took effect was 10 October 2025. Consequently, I have determined that the Dismissal Application was filed within the 21 day time period specified by section 366(1)(a) of the FW Act. Given the Dismissal Application was filed within time, it is unnecessary to consider the second question.
[6] Section 366(1) of the FW Act provides that an application made under section 365 must be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission allows under subsection (2). The meaning of dismissed is set out at section 386 of the FW Act.[4] There is no question that Mr Dubus was dismissed within the meaning of section 386(1)(a) of the FW Act.
[8] At about 4:00 p.m. on Thursday 11 September 2025, Mr Dubus attended a meeting with Ms Greenwood and Mr Paul Clark (the Respondent's National Civil Manager).[7] At the meeting, Mr Dubus was informed that the Respondent had decided to terminate his employment and provided a letter, which was dated 11 September 2025 and signed by Ms Greenwood (11 September Letter).[8] The 11 September Letter[9] is reproduced in full below:
Your employment with Gemlife Administration Pty Ltd
This letter serves to confirm the discussion with Paul Clark and I today regarding your ongoing employment with GemLife Administration Pty Ltd.
As discussed, Gemlife have made the unfortunate decision to terminate your employment on notice in accordance with clause 9.2 of your agreement.
In accordance with clause 10.2 of your agreement, GemLife has decided to place you on gardening leave for the duration of your notice period. The following conditions apply during your period of notice:
Your notice period will end on 10 October 2025 at which time your employment will terminate.
GemLife may notify you in writing prior to 10 October that it intends to bring your employment to an end earlier with payment in lieu of any remaining notice period. If this occurs, your employment will end on the date notified.
When your employment ends, you will be paid any outstanding salary, accrued but untaken annual leave, and if applicable, payment in lieu of any remaining notice period.
We remind you of your obligations to GemLife which continue beyond the end of your employment, including those relating to confidential information and intellectual property.
Finally, we recognise that processes like these can impact people in different ways, we encourage you, where required to access the Gemlife Employee Assistance Program 'Assure Programs'. Assure is a free and confidential counselling service available for all staff by self-referral and can be contacted directly on 1800 808 374 to make an appointment.
Should you have any questions regarding this matter, please do not hesitate to contact Paul Clark or I directly.
We sincerely wish you all the very best in your future endeavours.
[9] On Friday 12 September 2025, Mr Dubus sent Ms Greenwood an email. Ms Greenwood replied by email (and copied in Mr Clark) that same day.[10] In summary terms, Ms Dubus raised issues that he considered relevant to the termination of his employment. Ms Greenwood provided a response to the issues raised by Mr Dubus. Mr Dubus sent that email from the email address: frederic.dubus@hotmail.com (emphasis added) (Hotmail Account). Ms Greenwood's reply email was sent to that email address.
[10] On Monday 15 September 2025, Ms Greenwood sent an email Mr Dubus, which was copied to Mr Clark (15 September Email).[11] The email was sent to the email address: frederic@fdengineering.com.au. (emphasis added) (FD Account). The 15 September Email[12] is reproduced in full below:
I am writing to confirm that your handover is complete, and you are no longer required to be on administrative (gardening) leave.
As per the letter issued to you on 11 September 2025, we have brought your termination date forward and your employment will end today, 15 September 2025.
We will make arrangements to pay out all remaining notice entitlements today as well as any accrued leave entitlements. I will arrange for payroll to send a payslip once this has been completed.
You are welcome to utilise the services of our EAP program for the following month if you feel the need for free 24/7 counselling support.
We remind you of your obligations to GemLife which continue beyond the end of your employment, including those relating to confidential information and intellectual property.
We wish you all the very best in your future endeavours.
[11] Ms Greenwood gave unchallenged evidence, which I accept, that the FD Account was Mr Dubus's personal email account held on the Respondent's Human Resources Information System (HRIS).[13] I also accept Ms Greenwood's unchallenged evidence that Mr Dubus had not made a formal request to update his personal email account held on the HRIS.[14]
[12] Ms Greenwood gave unchallenged evidence, which I accept, that Mr Dubus was paid all outstanding entitlements on 15 September 2025.[15] This resulted in a payment into Mr Dubus's bank account of $25,031.11 on that day.[16] I also accept Ms Greenwood's unchallenged evidence that Mr Dubus did not receive any further payments from the Respondent after that date.[17]
[14] In the period after 15 September 2025, the only other written or oral communication between Mr Dubus and Ms Greenwood appears to be an email exchange where Mr Dubus expressed concern that certain unidentified persons were making negative comments about him. Ms Greenwood addressed that concern in a reply email. Based on the material before me, I find that Mr Dubus used the Hotmail Account to exchange those emails.
[15] In his witness statement submitted in advance of the hearing, Mr Dubus asserted that he was never advised that his employment ended prior to 10 October 2025.[20] At the hearing, Mr Dubus explained that he did not receive the 15 September Email. Mr Dubus explained that he did not receive that email because he has 'abandoned' the FD Account and did not use that email account. Mr Dubus was cross-examined on that evidence. I accept Mr Dubus's evidence for the following reasons.
[16] One, I accept Mr Dubus's evidence with the benefit of observing him give evidence and undertake cross-examination. There is nothing arising from Mr Dubus's evidence or cross-examination that causes me to doubt the reliability of Mr Dubus's evidence.
[17] Two, the Respondent relied on Ms Greenwood's email to the FD Account seeking the return of the laptop and Mr Dubus returning the laptop to demonstrate that Mr Dubus must have received the 15 September Email.[21] I have made factual findings above about these events. This line of argument was put to Mr Dubus in cross-examination. Mr Dubus explained that he returned the laptop following communications with colleagues that appeared to have been conducted via text message, including Mario, Shane, Ethan etcetera. I accept Mr Dubus's evidence that the laptop was returned arising from the communication that he had with these colleagues, and not because he used the FD Account and read the email from Ms Greenwood sent on 19 September 2025.
[18] Three, Mr Dubus's explanation that he no longer uses the FD Account is consistent with the material before me. That includes the email exchange with Ms Greenwood on 12 September 2025, the email exchange with Ms Greenwood raising the concern about negative comments and the email account identified on the Dismissal Application filed with the Commission.[22] In each of those email exchanges, Mr Dubus used the Hotmail Account, and not the FD Account. The Hotmail Account, and not the FD Account, was identified on the Dismissal Application.
[19] Four, the Respondent submitted that Mr Dubus provided no objective evidence, such as metadata from his email hosting company to indicate the day that he received and opened the 15 September Email. The Respondent submitted that only Mr Dubus was in a position to provide such material and in the absence of such material being provided that the Commission show draw a Jones v Dunkel inference against Mr Dubus.[23] I reject those submissions. It is unrealistic and at odds with sections 577 and 578 of the FW Act to impose such an evidentiary burden on a self-represented party in these circumstances. Furthermore, the drawing of such an inference would be at odds with my finding as to Mr Dubus's reliability as a witness, which is made with the benefit of observing Mr Dubus give evidence and undertake cross-examination.
[20] As such, I am satisfied that the 15 September Email - which was clearly intended to bring forward the date of dismissal to 15 September 2025 - was sent to the FD Account. I am also satisfied that Mr Dubus did not read the 15 September Email because, by that time, Mr Dubus had stopping using the FD Account.
[21] Such matters were considered at length by a Full Bench of the Fair Work Commission in Mohammed Ayub v NSW Trains (Ayub)[24] from [17] - [50]. The following principles are found in the analysis undertaken by the Full Bench:
[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...
[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...
[41] We therefore do not consider that there is any proper exception to the general proposition established by the authorities under the WR Act and the FW Act that a dismissal cannot take effect for the purposes of those statutes before it is communicated to the employee...
[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. (emphasis added).
[22] Ayub concerned an application for an unfair dismissal under part 3-2 of the FW Act. Such an application and an application such as Mr Dubus's Dismissal Application (made under part 3-1 of the FW Act) share an identical definition of dismissed. The requirement to make either application 'within 21 days after the dismissal took effect' is identical to both such applications.[25] Accordingly, I apply the principles discussed by the Full Bench in Ayub in determining the first question.
[23] On application of those principles, I am satisfied that the 15 September Email did not constitute a reasonable opportunity to become aware of his dismissal. That is because the email was sent to an email account that Mr Dubus had stopped using. It is entirely understandable that the Respondent sent the 15 September Email to the FD Account, which was Mr Dubus's personal email held on the Respondent's HRIS. However, that does not change the fact that Mr Dubus did not know and did not have a reasonable opportunity to know about the 15 September Email. I am satisfied that Mr Dubus was only knew (and only had a reasonable opportunity to know) that his dismissal would take effect on 10 October 2025. As such, I am satisfied that the day that Mr Dubus's dismissal took effect was 10 October 2025. I note that Mr Dubus filed the Dismissal Application on the next immediate working day after 10 October 2025.
[24] Finally, in aid of their argument, the Respondent relied upon the payment of all unpaid entitlements to Mr Dubus on 15 September 2025 and the fact that no further payments were made by the Respondent after that date. The Respondent contended that those matters should have altered Mr Dubus that he had been dismissed. I reject that submission. Mr Dubus was dismissed with notice. As explained by the Full Bench in Ayub, subject to any express provision in the contract, dismissal must be communicated by the employer to employee using plain or unambiguous words or conduct.[26] I am not satisfied that the payment of such entitlements and no further payments being made to Mr Dubus meets that requirement.[27]
[25] For the reasons set out above, I have determined that Mr Dubus's dismissal took effect on 10 October 2025. As such, the Dismissal Application was filed within the 21 day time period specified in section 366(1)(a) of the FW Act. My finding renders it unnecessary to determine the second question. The parties will shortly receive a notice of listing, which lists the matter for conference.
[1] Digital Hearing Book (DHB), page 23.
[25] Sections 33(1)(a) & 394(2)(a) of the FW Act.
Printed by authority of the Commonwealth Government Printer
Mr Frederic Dubus
Gemlife Administration Pty Ltd [2025] FWC 3528