s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application found to be made within time - application to proceed

• [1] Mr George Grech (the applicant) applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) on 19 August 2025. Mr Grech was employed as Store Manager by Matheson & Osman Pty Ltd trading as Maribyrnong Carpet Court (the respondent/ employer). His employment began on 15 October 2018.

• [2] There is no dispute between the parties that the employer dismissed Mr Grech from his employment.

• [3] Section 394(2) of the Act requires that applications for an unfair dismissal remedy must be made within 21 days after the date that a dismissal takes effect or within such further time as the Commission allows under section 394(3). As Mr Grech made his application on 19 August 2025, it is within time if the dismissal took effect on or after 29 July 2025 (which is 21 days before 19 August 2025).

• [4] The applicant says that his dismissal took effect on 8 August 2025, and so his application made on 19 August 2025 is within time (it was made 11 days after the dismissal took effect).

• [5] The employer says that Mr Grech's dismissal took effect on 8 July 2025, so his application was made 42 days after the dismissal took effect. If the employer is correct about the date the dismissal took effect, Mr Grech's application is only validly made if the Commission allows a further period for an application to be made.

• [6] This decision deals only with 2 issues:
  1. What date did Mr Grech's dismissal take effect?
  2. If the dismissal took effect before 29 July 2025, should the Commission allow a further period for Mr Grech's application to be made?

• [7] The was no significant dispute between the parties about the facts of this matter.

• [8] At the beginning of July, Mr Grech met with Mr Sean Osman, director of the employer. At this meeting Mr Grech's employment was discussed. On 6 July 2025, Mr Osman emailed Mr Grech confirming the discussions they had. The email concluded with:

We are left with no other alternative but to terminate your employment effective immediately and hereby provide the 5 weeks' notice period being a 4 weeks' notice + additional 1 week for those over 45 years old.

We would appreciate hand over and can discuss together the working options during this period, please give me a call on Tuesday morning.

• [9] Mr Grech attended the store on Tuesday 8 July 2025. He returned his store keys and work phone to Mr Osman. They had a discussion, which Mr Osman considered a handover.

• [10] Mr Grech says that Mr Osman said he would not be required to come into the store but that he might be needed by phone. Mr Osman agrees that he said staff might need to call Mr Grech because he had been in the role for a very long time and if anything came up, Mr Osman may call him. Mr Osman also says that he said whether Mr Grech needed to answer or not was up to him.

• [11] Mr Grech asked to be paid his notice period payment in a lump sum. The employer says their payroll software was unable to do this, so they continued to pay him weekly until 8 August 2025. Ms Ellen Osman, director and person responsible for the business' payroll processing, wage payments and superannuation, sent an email to Mr Grech on 14 July 2025 that included:

It won't run the final payslip / pay out the leave balance until the end of the 5 weeks notice - last date being the 8th August which would make the final payslip 12th August will include the annual leave to be paid out. (as annual leave continues to accrue during this 5 week period)

• [12] Mr Osman posted a message to a work WhatsApp group after which he removed Mr Grech from the group. This occurred around 9 July 2025 (based on the date stamps of screenshots provided to me).

• [13] Mr Grech says he continued to perform duties from 8 July 2025 to 8 August 2025. Those duties were that he spoke with 3 staff members, including the person who would be taking over the store manager role, about pricing, measures and jobs. Mr Osman says that the employer did not require Mr Grech to perform any duties and that Mr Grech had already completed a handover with Mr Osman on 8 July 2025. Mr Osman also says that had the staff spoken with him, he would have been able to answer their questions. But Mr Osman does not contest that Mr Grech spoke with each of the staff members he says he spoke to.

• [14] In accordance with Ms Osman's email of 14 July 2025, the employer paid Mr Grech weekly, accruing annual leave in each pay period.

• [15] On 12 August 2025, the employer made a final payment to Mr Grech that included a payment of his accrued but untaken annual leave entitlements up to 8 August 2025.

What date did Mr Grech's dismissal take effect?

• [16] I am satisfied that Mr Grech's dismissal took effect on 8 August 2025. The effect of the employer's actions was to place Mr Grech on a period of garden leave. That is, he remained employed as he was paid, continued to accrue his annual leave entitlements but was not required to perform his full duties.

• [17] First, the termination email of 6 July 2025 was confusing. It referred to the dismissal taking effect immediately, but then referred to Mr Grech's notice period, made no reference to a payment in lieu of notice (nor was any payment made), required that Mr Grech perform duties (hand over) and allowed for discussions about whether Mr Grech would work his notice period.

• [18] Second, there is no clear evidence that when Mr Grech and Mr Osman discussed 'working options' during the notice period, that they discussed that Mr Grech's employment end earlier than the end of that 5-week period referred to in the termination email.

• [19] Third, although Mr Osman says he did not require Mr Grech to work during the notice period, Mr Osman agreed that he did inform Mr Grech that staff and Mr Osman might call him in case anything came up. I am of the view that this was the employer requiring Mr Grech to be available for duties during his notice period. Mr Grech then did perform some duties by answering questions from his former team members.

• [20] Last, the employer continued to accrue annual leave entitlements on Mr Grech's behalf up until 8 August 2025.

• [21] As I am satisfied that Mr Grech's dismissal took effect on 8 August 2025, I am also satisfied that he has made a valid application within the 21 days required by s 394(2) of the Act.

If an extension of time is required, are there exceptional circumstances?

• [22] Although I am not required to because of my finding about when the dismissal took effect, for completeness, I would be satisfied that there are exceptional circumstances in this matter so as to allow a further period of time for Mr Grech to have made his application for an unfair dismissal remedy.

• [23] Exceptional circumstances are not defined in the Act, but the case law as summarised in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13] establishes the following:
  • the Commission must consider all the circumstances;
  • the phrase's ordinary meaning means out of the ordinary, or unusual, or special, or uncommon;
  • but the phrase does not require circumstances to be unique, nor unprecedented, nor even very rare;
  • a single event can be exceptional;
  • a combination of factors or events which, individually are not exceptional, but viewed together could be viewed as out of the ordinary, unusual, special, or uncommon.

• [24] Whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each (see Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901 at [39]).

• [25] The factors that I must consider are set out in section 394(3) of the Act, which are:
  • the reason for the delay;
  • whether the applicant first became aware of the dismissal after it took effect;
  • any action taken by the person to dispute the dismissal;
  • any prejudice that might be caused to the employer including prejudice caused by the delay;
  • the merits of the application; and
  • fairness as between the applicant and other persons in a similar position.

• [26] I consider that there would be exceptional circumstances in this matter because the reason for the delay weighs in favour of a finding of exceptional circumstances and all other factors are neutral.

• [27] Mr Grech says that the reason for his delay was the employer's confusing conduct that led him to reasonably believe that his employment ended on 8 August 2025. As discussed above, the employer's conduct is confusing - it says in the letter of termination that the employment ends "effective immediately" but proceeds to discuss a notice period, the need for handover and the opportunity to discuss working arrangements during the notice period. The employer also continues to make Mr Grech's usual salary payments on a weekly basis and makes a final payment on 12 August that includes Mr Grech's accrued but untaken annual leave entitlements up to 8 August 2025. I would find this to be an acceptable reason that weighs in favour of a finding of exceptional circumstances.

• [28] I do not agree with the applicant's submission that Mr Grech first became aware of the dismissal after it took effect. This is because Mr Grech was aware of his dismissal prior to it taking effect; he was understandably confused about precisely when it took effect but he was told he was being dismissed in early July, he received an email from Mr Osman on 6 July and he returned his keys and work phone on 8 July. I would not find that this factor weighs in favour of a finding of exceptional circumstances, but nor does it weigh against.

• [29] While Mr Grech took no action to dispute his dismissal until he made his application, I would not consider this factor to weigh in favour nor against a finding of exceptional circumstances.

• [30] I consider that no significant prejudice arises to the employer from the period of the delay, and so this factor does not weigh in favour nor against a finding of exceptional circumstances.

• [31] My consideration about the merits of the application is only preliminary at this stage. It is not appropriate to require the parties to put on their full arguments or evidence. The parties disagree about whether there was a valid reason for Mr Grech's dismissal and whether he was afforded an opportunity to respond to those reasons. I therefore would not consider that this factor weighs in favour nor against a finding of exceptional circumstances.

• [32] The last - fairness between the applicant and other persons in similar circumstances - relates to ensuring the application of consistent principles and may relate to matters currently before the Commission or matters previously decided by the Commission: see Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963at [41]. The Full Bench in Croker v Erndit Logistics Pty Ltd [2023] FWCFB 224at [49] indicated that this factor may involve a comparison of cases involving similar facts.

• [33] Neither party made submissions relevant to this factor. As I am unaware of any relevant matters with sufficiently similar facts, I would consider this factor to neither weigh in favour nor against a finding of exceptional circumstances.

• [34] As I have concluded that Mr Grech's dismissal took effect on 8 August 2025, his application was validly made under s 394 of the Act. Parties will shortly receive a notice of listing for a case management conference in this matter.

Mr L Maddock, Unfair Dismissals Australia with permission, on behalf of the Applicant

Mr S Osman and Mrs E Osman on behalf of the Respondent.

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