s.365 - Application to deal with contraventions involving dismissal

Austwide Workforce Solutions Pty Ltd, Ms Tania Hill

Application made under s 365 - extension of time - application dismissed

• [1] Mr Kyle Michel Murphy has made an application under s 365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by Austwide Workforce Solutions Pty Ltd (Austwide) in contravention of Part 3-1 of the Act. Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2).

• [2] I issued directions on 5 November 2025, for the parties to file their material. The question of whether to grant additional time was dealt with at a Determinative Conference (Conference) on 19 November 2025. Mr Murphy gave oral evidence and sought that the material he had already filed be received into evidence. The entirety of Mr Murphy's filed material was received into evidence and afforded appropriate weight after an assessment of its relevance and its character. Additionally, Mr Murphy consented to his previously lodged form which he withdrew after being advised by the Client Services Team at the Fair Work Commission being provided to the Commissioner for consideration.

• [3] Mr Murphy submitted during the Conference that he was forced to resign from his employment on 20 September 2025 due to "adverse actions conduct and treatment by the employer".[1] According to Mr Murphy's First Application which he later withdrew, he was notified of his dismissal on 18 September 2025.

• [4] According to Austwide's submissions, Mr Murphy was not dismissed and he left site mid shift during the first rostered swing of employment on 11 November 2024, and Mr Murphy could not/would not return to site for their rostered shift.[2] Austwide further submits that Mr Murphy was terminated at his own request on 7 February 2025 and entitlements were paid to them on this same day.[3]

• [5] When Mr Murphy was asked in the Conference about what happened in January, Mr Murphy submitted, "In January, I was asking the questions prior to the attempts from the employer if I had been terminated because there was no communication from the employer. So, for me, there was an unclear explanation from them because everything that was said to me was through deceptive action".[4]

• [6] Mr Murphy was additionally asked to clarify the date from which he stopped performing work for Austwide, to which he responded, "So between the 12th of November through to the 7th of well through to the 10th of February is when communications were, I was not provided any opportunity to actually return with dates or arrangements with site management." Mr Murphy also accepted that he was paid out all his entitlements on 7 February 2025.

• [7] Austwide has provided emails to Mr Murphy from 7 February 2025 advising Mr Murphy that his employment was being terminated and his entitlements would be paid out.[5] Austwide has further provided a detailed payslip dated 7 February 2025 with the title Termination Payments on it and,[6] further emails from Mr Murphy from 8 February 2025 advising he would be reaching out to Fair Work et cetera.[7]

• [8] The evidence before me establishes that the employment relationship between Mr Murphy and Austwide ended on 7 February 2025. I do not accept the contention that Mr Murphy was unaware that his employment had come to an end.

• [9] Mr Murphy's dismissal occurred on 7 February 2025. The 21-day period ended on ‎28‎ ‎February‎ ‎2025 (see s 40A of the Act, and s 36 of the Acts Interpretation Act 1901 as in force on 25 June 2009). The application was lodged on 25 September 2025. For the application to proceed, Mr Murphy requires an extension of time. The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in s 366(2)(a) to (e).

• [10] As to the reason for the delay (s 366(2)(a)), Mr Murphy submitted that there was, in effect, no delay because the contract of employment was not terminated under the National Employment Standards and, in his view, remained valid until 20 September 2025 and continued to bind the parties until one or both of them took steps to dissolve it. He further submitted that an employee cannot be compelled to accept an employer's attempt to facilitate a resignation.

• [11] I do not accept Mr Murphy's submissions regarding the reason for the delay. Mr Murphy's assertion that the employment contract remained valid until 20 September 2025 is not supported by credible evidence. As noted above, the employment relationship came to an end on 7 February 2025. Once the employment ended on that date, the statutory timeframe for filing an application under s 365 commenced. Mr Murphy's belief that an employee cannot be forced to accept an employer's attempt to facilitate a resignation is not relevant to whether the employment had in fact ended, nor does it provide a satisfactory explanation for the delay in lodging the application.

• [12] As to the other mandatory considerations, I do not accept that Mr Murphy took any action to dispute the dismissal (s 366(2)(b)). This factor weighs against the granting of an extension. I do not consider the factor of prejudice to the Respondent to be relevant, as Austwide has not raised any matters of prejudice (s 366(2)(c)), nor do I consider that there are any matters that are relevant to fairness between Mr Murphy and other persons in a like position (s 366(2)(e)). I consider these to be neutral factors.

• [13] As to the merits (s 366(2)(d)), I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

• [14] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s 366(2), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time.

• [15] The application is dismissed. I order as such.

[1] Audio recording of Determinative Conference at 9:32 and 19:05.

[4] Audio recording of Determinative Conference at 11:41.

[5] P.197 of the DCB - Attachments to Form F8A

[7] P.208 of the DBC - Attachments to Form F8A

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