s.394 - Application for unfair dismissal remedy

• [1] On 13 November 2024, Mr Giuseppe Castagna (the Applicant) lodged an application (the Application) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant was employed by Rehals Divine Indian Restaurant (the Respondent). The Applicant commenced his employment with the Respondent on 16 February 2022. The Applicant claimed in the Application that he was notified of his dismissal by text on 22 October 2024, and confirmed on his Form F2 that the dismissal took effect on 22 October 2024.

• [2] Unfair dismissal applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. If the dismissal occurred on 22 October 2024, the Application should have been lodged by 12 November 2024. The Application would therefore have been lodged 1 day after the last day on which such an application could have been made.

• [3] On 20 January 2025, the sole matter of the out of time application was allocated to my Chambers. On that same day Directions were issued to determine the programming of the matter. The Directions were:

[1] This matter is listed for Hearing before Deputy President Cross at 3:00PM on 13 February 2025 to hear and determine the questions of the effective date of dismissal and whether to extend the time for filing (the Jurisdictional Issue).

[2] By no later than 4:00PM on 28 January 2025 (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:

• Whether the Applicant first became aware of the dismissal after it had taken effect;

• If there is any prejudice to the employer (including prejudice caused by the delay);

• Fairness as between the Applicant and any other persons in a similar position.

[3] By no later than 4:00PM on 4 February 2025 the Respondent) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on.

[4] By no later than 4:00PM on 11 February 2025 the Applicant is directed to prepare a signed witness statement reply to the material filed by the Respondent with respect to the Jurisdictional Issue, which includes everything they seek to rely on.

Important note: Failure to comply with these Directions or to attend the Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.

• [4] The Applicant filed one Statement and a response document. The Respondent filed a Statement from Rishi Kumar.

• [5] The Hearing took place on 13 February 2025.

• [6] On 22 October 2024, the Applicant received a text message from Kanchan Kumar, an employee of the Respondent (the 22 October Text). The 22 October Text relevantly read:

Hi joey you back pay is already been paid from 1st of July to till now

We have only Monday shift for you this week at 6 o'clock

• [7] Two days later, on 24 October 2024, Mr. Castagna received another text message, this time from Rishi Kumar (the 24 October Text). The 24 October Text relevantly read:

Joey, just got an email from Fiona, saying that we haven't paid you the correct wages . As per our records, we have paid you the back pay last Tuesday, which was from July

from $22.60 to $24.20 per hour. We will email you all your payslips.

email with your 75 payslips last time in a zip folder.

And on the other hand , you are working on casual shifts or "on call", and your duties were Dishwashing and emptying the bin at the end of shift, not the deliveries.

So, we only called you when we needed. There is no agreement between you and us for the certain hours.

I was trying calling you, but you are not answering.

Just want to let you know ,we have now full-time Dishwasher. So we don't need any casual staff for dishwashing.

• [8] Throughout the Hearing, the Applicant consistently maintained that the dismissal took place on 24 October. The Respondent, on the other hand, contends that the effective dismissal date was 22 October and that the Application was therefore lodged out of time.

• [9] The 22 October Text did not constitute a clear and unequivocal termination of the Applicants employment, and actually advised the Applicant of a shift the following Monday

• [10] The dismissal was communicated in the 24 October Text, which, contrary to the submission of the Respondent, was more detailed in outlining to the Applicant that he would not receive any further shifts. Therefore, the Application was lodged within the required timeframe.

• [11] I find that the 22 October Text, did not constitute a clear and unequivocal dismissal of the Applicant. The dismissal was communicated in the 24 October Text. Therefore, the Application was lodged within the required timeframe and no extension of time is necessary. The matter will now be listed for arbitration and directions will be issued for parties to file materials.

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