s.365 - Application to deal with contraventions involving dismissal

Application alleging contravention of general protections provisions - whether applicant dismissed or abandoned employment - date dismissal took effect - extension of time -whether exceptional circumstances exist - application dismissed.

• [1] On 14 March 2025 the applicant in this matter Mr. Jed Capaldi (Applicant) filed an application under s.365 of the Act against his former employer, Daniel Gobbo (Respondent) alleging that his employment had been terminated by the Respondent in breach of the general protections provisions in Part 3-1 of the Act.

• [2] Under s.366(1) of the Act, an application of this kind must be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission (Commission) allows under s.366(2).

• [3] In his application, the Applicant stated that he was unsure as to the date his dismissal took effect but that based on advice he had received, he understood that his dismissal took effect on or about 10 January 2025. In final submissions the Applicant said that his dismissal took effect on 10 January 2025. On that basis, the Applicant accepted that the application was made outside the 21-day time limit referred to in s.366.

• [4] The Respondent said in his F8A Response that the Applicant was not formally dismissed but rather had voluntarily ceased attending work in January 2025 at the end of a period of approved leave. The Respondent said that he had concluded that the Applicant had abandoned his employment because of a lack of communication from the Applicant and a failure to return to work. The Response said that the Respondent had not given formal termination notice or taken any other steps to formally end the Applicant's employment.

• [5] Further, the Respondent also formally objected to the application on the basis that the application was not made within the 21-day time period. The Respondent maintained that there were no exceptional circumstances to justify an extension of time. The Applicant asserted that exceptional circumstances existed and asked the Commission to extend time.

• [6] It is necessary in cases such as these to identify the date that any dismissal took effect because it is from that date that the 21-day time limitation period in s.366(1) begins to run.

• [7] The evidence as to the Applicant's working arrangements and the circumstances in which his employment came to an end was as follows. The Applicant was engaged by the Respondent in or about August/September 2024 to perform delivery and sales work for the Respondent. The Applicant said his employment was on a part-time basis and that he was required to work 8 hours a day on Thursday and Friday of each week. The Respondent said that the Applicant was required to perform deliveries on an 'ad hoc' basis. A copy of a letter of engagement was in evidence and provided that the employment was to be part-time employment with a three-month probationary period. The letter provided for the Applicant to be supplied with a company vehicle and a mobile phone.

• [8] On or about 3 December 2024, the Applicant began a period of approved annual leave. Prior to the commencement of the leave, the Respondent made arrangements for the collection of the Respondent's delivery vehicle from the Applicant. This was the only delivery vehicle that the Respondent had in his business.

• [9] While the Applicant was on leave, he was contacted by the warehouse manager for the Respondent who demanded that the Applicant return company property, including the mobile phone that had been provided to the Applicant.

• [10] On Thursday 9 January 2025 the Applicant sent a text message to the Respondent which said:

As previously discussed, I'll be returning from holidays on Monday, and I just want to confirm the start date for resuming work this year. Just need to organise for the car to be picked up. Additionally, I've been informed by Sam that I need to hand in my work phone. Am I due for an upgrade? Thanks.

• [11] The Respondent did not reply to the message.

• [12] By this time the Applicant had become aware that the Respondent had hired another employee and he said that this increased his concern that his employment was being undermined. The Applicant said he had become 'reasonably fearful' that his employment was at risk, 'particularly because (his) employer's son was actively reclaiming property that was necessary for him to perform (his) job.'

• [13] On 10 January 2025 the Applicant was contacted by another employee of the Respondent to say he would be collecting the Applicant's mobile phone. The employee attended the Applicant's home and collected the phone on that day. According to the Applicant, nothing was said to him by the employee about why the phone was being collected and the Applicant did not ask why this was happening.

• [14] Thereafter followed an extended period during which there was no contact between the Applicant and the Respondent. The Applicant accepted that he made no attempt to contact the Respondent after 9 January and before 19 February 2025 when he sent an email to the Respondent claiming amongst other things, amounts for reimbursement of fuel expenses and a payout of accumulated annual leave. The Respondent initially submitted that some attempts were made to contact the Applicant during this period. I am not satisfied on the evidence that any such attempts were made.

• [15] The Applicant submitted that he did not ever receive notice of the termination of his employment from the Respondent. The Respondent accepted that this was the case but submitted that they believed that the Applicant had abandoned his employment when he did not attend for work on and after 13 January 2025. It is clear enough on the facts that a formal notice of termination was never given by the Respondent to the Applicant and so the question squarely arises as to whether the Applicant was dismissed and if so, when that dismissal took effect.

• [16] Section 386 defines the circumstances in which an employee is taken to have been dismissed for the purposes of Part 3-2 of the Act. It applies equally to applications under s.365. It provides, relevantly:

(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.

• [17] In the matter of Ayub v NSW Trains[1] the Full Bench considered the question of when a dismissal takes effect for the purposes of s.394(2)(a) of the Act. The Bench there noted that the general principle at common law was that to effect the termination of a contract of employment an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated.[2] The Full Bench went on to observe that s.386, which sets out the meaning of "dismissed' for the purposes of Part 3-2 of the Act, is concerned with the termination of the employment relationship, as opposed to the contract of employment but concluded that the relevant legal principles were equally applicable to the termination of the employment relationship.[3]

• [18] At [48] the Full Bench stated as follows:

...Our conclusion is that, in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot not (sic) take effect for the purposes of Pt.3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.

• [19] In this instance I am satisfied that the employment of the Applicant was terminated on the Respondent's initiative for the purpose of s.386(1)(a) of the Act. A termination of employment will be 'on the employer's initiative' if an 'act of the employer results directly or consequentially in the termination'[4] or the employer's actions are the 'principal contributing factor' which lead to the termination of the employment relationship.[5] The Applicant did not abandon his employment. He advised his employer that he was ready to return to work on 13 January 2025 and received no reply. The employer's conduct of arranging for the collection of the Applicant's work phone and failing to respond to his message about recommencing work in circumstances where the Applicant had no access to the delivery vehicle and was therefore unable to resume his duties, was what brought the relationship to an end.

• [20] The issue as to when the relationship came to an end is made more difficult by the fact that that there was no express communication of termination by the Respondent. What is clear however is that by 13 January 2025 the Applicant had no vehicle, no phone and no response from his employer as to when he could return to work. He did not work on the Thursday or Friday of the week commencing 13 January 2025 which, on the Applicant's evidence, were his usual working days. It would have been objectively apparent to anyone in the Applicant's position that there was a serious issue with the relationship at this stage. In the absence of notice from the Respondent, the Applicant had, by 17 January 2025 a reasonable opportunity to find out what the status of the employment relationship was, but he had made no further attempt to do so. I conclude that the Applicant was dismissed on 17 January 2025 and the application is therefore out of time by a period of 35 days.

• [21] Section 366(2) sets out the circumstances in which the Commission may extend time for an application of this kind and the matters which are to be taken into account in determining whether exceptional circumstances exist. It provides:

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

• [22] I deal with each of the matters referred to in s.366(2) below.

• [23] The Applicant argued that his application had been delayed because of the uncertainty surrounding the circumstances in which his employment had come to an end. The Applicant said that he believed he would be contacted by his employer to resume work and that 'the silence from the Respondent created confusion, not confirmation of dismissal.' The Applicant also said that at some time in February 2025 he contacted the Fair Work Ombudsman (FWO) because he had concerns about outstanding entitlements. He said he was told that the FWO could not assist and that he should seek independent legal advice. He said it was not until he sought advice from a solicitor on 26 February 2025 that he became aware that his employment may have been terminated, and he then took steps to file his application as soon as possible.

• [24] The Applicant said Cyclone Alfred also had an impact on his capacity to file his application in time because of power loss for a day and internet disruption and because he had to reschedule an appointment with his solicitor to 5 March 2025 because of the effects of the cyclone.

• [25] In Shaw v ANZ Bank,[6] the Full Bench noted that the delay is the period commencing immediately after the 21-day period for lodgement until the date the application was lodged, although circumstances arising prior to that delay may be relevant to the reason for the delay. An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where an applicant has not provided any reason for any part of the delay.[7] This is because the reason for delay is a factor forming part of the overall assessment required by s.366(2).[8] A credible explanation for the entirety of the delay would weigh more heavily in favour of a finding of exceptional circumstances. Conversely, a failure to provide a credible explanation for any part of the delay would tend to weigh against such a finding.[9]

• [26] I accept that the circumstances in which the employment relationship came to an end were unusual. The Applicant was not given formal notice of the termination of employment relationship. His position was not full-time and he was waiting for contact or confirmation as to when he was to return to work. It is to be reasonably expected that someone in the Applicant's position would have been uncertain, at least in the immediate period after 13 January 2025, as to the ongoing status of the relationship. However, by 26 February 2025 the Applicant had been advised that it was likely that his employment had been brought to an end, yet the application was not filed until 14 March 2025, some 16 days later. Aside from the effects of the cyclone for a limited period of time, there was little by way of explanation for the delay.

• [27] In my view the reasons for the delay provided by the Applicant do not weigh in favour of a conclusion that there are exceptional circumstances.

Sub sections 366(2)(b) - Any action taken by the person to dispute the dismissal

• [28] The Applicant wrote to the Respondent on 19 February 2025 about what he described as outstanding pay and entitlements. He did not dispute the circumstances in which the relationship had come to an end. He said he was unaware of the possibility that the relationship had ended until he spoke with solicitors on 26 February 2025. He did not dispute the dismissal with the Respondent after 26 February. The Respondent was not on notice that the dismissal was disputed until they were served with the application.

• [29] There was no action taken by the Applicant to dispute the dismissal. There is nothing under this heading that weighs in favour of a conclusion that exceptional circumstances exist.

Sub sections 366(2)(c) - Prejudice to the employer

• [30] There would not be any relevant prejudice to the employer if an extension were to be granted. I regard this as a neutral consideration in the assessment.

• [31] The Applicant asserted that he had been dismissed because he had raised concerns about the late payment of wages and unpaid fuel reimbursements, for requesting annual leave and for inquiring about his return to work and asking about a phone upgrade. The Applicant said that he raised concerns about his future employment, about being replaced and about not been paid during a telephone conversation with the Respondent shortly after 26 November 2024, before he went on annual leave.

• [32] The Respondent raised multiple allegations as to the Applicant's alleged poor performance. The Respondent provided documentary evidence which they said supported a conclusion that the Applicant had failed to complete assigned tasks, missed deliveries and made incorrect product deliveries to customers which they said resulted in customer dissatisfaction and measurable additional costs to the business. The Applicant denied that he was responsible for these issues. The Respondent accepted that the Applicant had raised complaints about his wages in November 2024.

• [33] It is not generally appropriate for the Commission to resolve all contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).[10] The determination of these issues would require a full hearing on the evidence should the matter proceed. On the material available, I am unable to come to a firm view as to the merits of the application. I regard the merits as a neutral factor in the overall assessment.

Sub sections 366(2)(e) - Fairness as between the person and other persons in a like position

• [34] There was no evidence about fairness considerations as between the Applicant and other persons in a like position. This is also a neutral factor here.

• [35] In cases such as these, the Applicant must satisfy the Commission that there are exceptional circumstances which warrant the Commission exercising its discretion in favour of granting an extension of time.

• [36] Briefly, 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.[11]

• [37] Having taken into account the matters set out above, I am not satisfied that there are exceptional circumstances in this case. Accordingly, there is no basis for an extension of time.

By video using Microsoft Teams at 10:00am AEST on Monday, 26 May 2025.

[1] [2016] FWCFB 5500.

[4] Khayam v Navitas English Pty Ltd [2017] FWCFB 4082 at [37].

[5] Mohazab v Dick Smith Electronics Pty Ltd (No 2)(1995) 62 IR 200 at 205.

[6] [2015] FWCFB 287.

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[10] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

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