s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - applicant found to have been dismissed -extension of time granted.

[1] Mr Houstein (Applicant) has made an application pursuant to section 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. The application relates to his former employment as a truck driver for BINC Premix Pty Ltd (Respondent). The circumstances of how that employment came to an end are in dispute, but it is not in dispute that it was the events of 17 June 2025 that were the cause of the employment coming to an end and that the Applicant did not work with the Respondent after that date. For the reasons discussed in this decision, I have found that the termination of Mr Houstein's employment took place on that day, and that it was a dismissal within the meaning of section 386 of the Act.

[2] The application was received by the Commission twice, in identical terms. An application submitted via post was received on 16 July 2025. Prior to that, a copy of the same application was provided to the counter staff at the Hobart registry of the Commission on 11 July 2025. Both attached some screenshots taken from the Applicant's mobile phone. The series of events that the led to this will be set out in due course. What is relevant for present purposes is that 11 July 2025 is 24 days after 17 June 2025. Section 394(2) of the Act provides that an application of this type is required to be made within 21 days after a dismissal took effect. As the Application was filed out of time, an extension of time is required in order for the Application to proceed.

[3] The matter before me proceeded by way of a hearing on 7 November 2025. The matter had been scheduled for hearing at earlier times but had been adjourned on two occasions. Once, because the parties sought some time to explore a resolution, and once because the Respondent was unavailable. The Applicant gave written and oral evidence but was not cross examined. Mr Campbell, Ms Norton-Smith, Mr Pinner and Mr Lawrence gave written and oral evidence for the Respondent. Mr Campell is a co-director of the Respondent, Ms Norton-Smith is a leading hand, Mr Pinner is a concrete pump driver and Mr Lawrence is a batching plant manager. Mr Campbell and Mr Pinner were cross examined. The hearing was conducted with the assistance of a hearing book as well as some additional documents I had obtained from the Commission's case management system and supplied to the parties on the basis that they might be relevant to the extension of time issue. None of the Respondent's evidentiary material or written submissions addressed the extension of time application, but it did make some brief oral submissions regarding that application. The Respondent's evidence and submisions were mainly addressed to the question of whether or not there had been a dismissal.

[4] The Respondent did not consider that the Applicant had been dismissed within the meaning of section 386 of the Act. Section 386(1) relevantly provides as follows:

(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.

• [5] In the current matter, there is a dispute on the facts as to whether the Applicant expressed an intention to resign during a discussion with Ms Norton-Smith on 17 June 2025. A contest as to whether a resignation may amount to a dismissal most often arises in cases where the facts engage with section 386(1)(b), however there are also some cases where resignation falls for consideration under section 386(1)(a). The Full Bench in Bupa Aged Care Australia v. Tavassili[1] described this as follows:

"There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer."[2]

[6] There is no dispute that the Applicant and Ms Norton-Smith had a discussion on the Applicant's last day of work, 17 June 2025. There is some dispute as to precisely what was said.

• [7] The Applicant's evidence was that, after retuning to the workplace with the truck and shortly before finishing up for the day, he had a discussion with Ms Norton-Smith about the start time the following day. The Applicant had a preference for a 5AM start, but was told by Ms Norton-Smith that he was not to start until 7AM. The Applicant said he told her that he would not be starting at 7AM, and should be starting at 5AM. A 5AM start had, in the Applicant's view, been approved some weeks prior, before Ms Norton-Smith had commenced working for the Respondent.[3]

• [8] Ms Norton-Smith said that this first part of the conversation with the Applicant occurred outdoors, as she was passing him and his truck and making her way to her office. She does not dispute the substance of the first part of the conversation. However, her evidence is that the Applicant then entered her office, and that she could tell from his demeanour that he wasn't happy with the situation.[4] Ms Norton-Smith said that the Applicant then made a comment about another employee, Mr Kingston (also known as "Erkel") , who was near her office door hosing down the yard, being paid more than him. Ms Norton-Smith said she did not engage with the Applicant concerning Mr Kingston's remuneration, but she felt intimidated by him in that moment. Her evidence at the hearing was inconsistent in some respects as to what the Applicant had said in this second part of the conversation. At first she agreed that the Applicant had said "If Nick [Mr Campbell] is paying Erkel more than me then he can shove it",[5] but later said she could not recall if he did say those words".[6] She was however quite certain that the Applicant had said, as he was walking out the door "You might as well tell Nick this is my two weeks notice".

• [9] The Applicant's recollection of this second part of the discussion is different. He denies he made any mention of "two weeks notice". Moreover, he says that his comments to Ms Norton-Smith about Mr Kingston commenced with the comment "Why was Erkel just sitting around doing nothing"[7] or "Why is he in the yard sitting there doing that and I'm out here working, you know, like flat out?".[8] The Applicant said that Ms Norton-Smith responded to this comment with "Nick is paying him more money to sit around and help me".[9] The Applicant said it was to this comment that he responded "If Nick is paying him more money than me, he can shove it".

• [10] As noted above, Ms Norton-Smith described the Applicant as "not happy" and causing her to feel intimidated during that interaction. In her witness statement, she had said that the Applicant had "started to abuse" her.[10] In her oral evidence, she agreed with the proposition that the Applicant was "a bit off", "a bit unhappy" and not presenting as she was used to him presenting during this interaction.[11] The Applicant said, of the comment that Mr Campell can "shove it" that "...everybody kind of says that thing if they're having a bad day"[12] and that he was having a bad day and he was "riled up".[13] He observed that "If everybody that said, 'Shove it', or, 'You can stick it', if they took them for like real, they would have nobody to work, you know?".[14]

• [11] Mr Pinner gave evidence that he spoke with the Applicant later that afternoon, after the Applicant had left the workplace. The Applicant did not accept that a telephone call took place, however Mr Pinner said it was in his call log and the call came in at 1:47PM and went for seven minutes. Mr Pinner said that the Applicant "didn't really like" Ms Norton-Smith and that she "got under his skin a little bit". He said that the Applicant "gets a bit animated" and described the Applicant's demeanour on the phone variously as "shitty", "crabby" and "pissed off".[15] He said that the Applicant had told him that he had "had a crack at Stacey [Ms Norton-Smith] and carried on about Erkel getting a pay rise".[16] Mr Pinner said that the Applicant had said that what had been said to Ms Norton-Smith were words to the effect of "Consider this my two weeks resignation" and that not only had he suggested that Mr Campbell could "shove it", but also suggested where he might do so.

• [12] Mr Lawrence gave evidence that he took a call from the Applicant at around 3:30PM and described the Applicant's demeanour during that call as "not happy", "angry" and "pissed off".[17] Mr Lawrence said the Applicant described Ms Norton-Smith in that telephone call in most offensive terms (that do not need repeating here) and that she had "pissed him off" in relation to his start time and expressed his frustration about Mr Kingston getting paid more than him. Mr Lawrence recalled that the Applicant had said "that he had told them to stick it up their arse".

[13] I consider on balance that it is more likely than not that the Applicant did make some reference to "two weeks notice" at the conclusion of his discussion with Ms Norton-Smith. However, that does not necessarily mean that the Applicant must be taken to have resigned at that point - particularly given Ms Norton-Smith's evidence that what was said was "You might as well tell Nick this is my two weeks notice" (emphasis added). There is an element of equivocation in that language.

[14] There are sufficient indications to persuade me of a heat of the moment resignation here, including that it occurred in the context of a disagreement and behaviour that Ms Norton-Smith found intimidating and where the Applicant described himself as "riled up". The Applicant evidently had not cooled down by the time of his conversations with Mr Pinner and Mr Lawrence. It ought to have been reasonably apparent to Ms Norton-Smith that the Applicant was in a heightened state and not expressing a genuine intention to resign.

[15] There is also some support for the view that it was reasonably apparent to Ms Norton-Smith that the Applicant was not expressing a genuine intention to resign. This arises from one of the text messages attached to the Applicant's application, which came at 2:23PM on the day of the events in question (after the Applicant had left the workplace). In that message, Ms Norton-Smith said:

I have spoken to Nick about regarding your notice of resignation. We are able to process your payout of entitlements and 2 weeks payout tomorrow when Sue is in.

Asking whether the Applicant did in fact want the termination payment to be processed is consistent with Ms Norton-Smith herself being uncertain as to whether she ought to take the resignation at face value. It is for the employer to elect whether to allow a person to work through their notice period or insist on payment in lieu of notice. Ms Norton-Smith's message opened up an opportunity for the Applicant to dispute what had occurred. The Applicant's response of "What he's to [sic] weak to talk" led to a response of "No certainly not weak, he's home with him [sic] family and backing me. Nick has accepted your resignation and we have made the decision to pay you out tomorrow...".

[16] In all the circumstances, I consider that Mr Houstein's resignation was made in the heat of the moment, was not genuine, and that the employer ought to have appreciated this. The termination of the employment must therefore be taken to be at the employer's initiative, and is a dismissal for the purposes of section 386 of the Act.

That finding of a dismissal in this circumstacnes is a finding as to a discrete issue. It is not an endorsement of the Applicant's behaviour.

[17] This part of the decision deals with the issue of whether such an extension of time will be provided. Section 394(3) of the Act provides that the Commission may allow a further period for an unfair dismissal Application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(b) whether the person first became aware the dismissal after it had taken effect; and

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

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

(f) fairness as between the person and other persons in a similar position.

• [18] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)[18] a Full Bench of this Commission considered the similar test for extending time for applications for the Commission to deal with disputes over dismissal involving a contravention of Part 3-1, which appears in s. 366(2) of the Act, and said:

"[14] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension. A decision whether to extend time under s.366(2) involves the exercise of a discretion."

Furthermore, the Full Bench in that case described the task of discerning exceptional circumstances in a manner that was not consistent with a mere "tick a box" approach to the enumerated considerations, but rather involved an evaluation taking into account matters of weight and degree.[19]

• [19] The meaning of 'exceptional circumstances' in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty)[20] as follows:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

• [20] Where paragraph (a) of subsection 394(3) requires the reason for "the delay" to be taken into account, the relevant delay is to be taken to be the period between the expiry of the time limit (in this case 8 July 2025) and the filing of the application (in this case 11 July 2025), and does not include the period from the date the dismissal took effect to the end of the 21 day period. Nonetheless, events and circumstances preceding "the delay" may be considered for the purposes of determining the reason for "the delay" and ultimately whether that reason supports a finding that there are exceptional circumstances.[21] An acceptable explanation of the entirety of the delay is not required to make a finding of exceptional circumstances, however it is relevant to have regard to whether the applicant has provided an explanation for the entirety or any part of the delay.[22]

• [21] The Applicant's case is that he did everything within his power to make sure he got his application to the Commission on time.[23] His application to the Commission is signed and dated 4 July 2025 (a Friday) and his evidence, supported by Australia post records,[24] is that he took it to the Post Office that day and arranged for it to be delivered by registered post. The registered post receipt provided in evidence demonstrated that it is correctly addressed to the Commission's Hobart street address. The Applicant says he asked the attendant at the post office how long it would take for the letter to be delivered and was told it would be 1-2 (business days).[25] The second business day would have been 8 July 2025, the last day upon an application could have be brought within time.

• [22] The Applicant's evidence was that he made a telephone call to the Commission on 10 July 2025 to inquire about his application, and was told that it had not been received. He made a further telephone inquiry the next morning (11 July), during which he said it was suggested to him that he might lodge his application again.[26] The Applicant said he then proceeded to his local post office (where the material had first been lodged) to make some inquiries and was provided with a "Parcel details" print out.[27] This showed that his mailing had indeed reached Hobart on 8 July at 5:54 AM, but was listed as "Awaiting collection at Hobart HPO POST SHOP". The next entry on that document was for 9 July 2025, which said "Delivered with signature from D SONI".

• [23] The Applicant said that he took that printout along with a copy of his application and drove to the Commission office in Hobart. In addition to providing his application and the "Parcel details" printout he had been given from the post office, he made further inquiries about where his initial application was, as it could not be located. He says he was informed that there was no " D Soni" who was a staff member of the Fair Work Commission, and the failure to locate the initial application could not be explained.[28] The confirmation that no "D Soni" works at the Commission was also provided in one of the records extracted from our case management system, which I had provided to the parties in advance of the hearing.[29]

[24] As noted above, the original application did not make its way to the staff of the Fair Work Commission until 16 July. A further record extracted from our case management system, which I had provided to the parties in advance of the hearing, indicated that it had been retrieved from the building's shared mailbox. The Fair Work Commission in Hobart is in the same building as the Federal Court of Australia and the Federal Circuit and Family Court of Australia.

[25] In oral submissions, the Respondent was critical of the Applicant for waiting until 4 July to actually complete an application, suggesting that it could have been done earlier or even a couple of days after the employment ended.

[26] In oral submissions, the Applicant said that his journey to the Commission in Hobart on 11 July was not his first, and that had he gone there to obtain a copy of an unfair dismissal application form before making his (handwritten) application. He also said in submissions that the decision to make an unfair dismissal application was discussed as a family and with the benefit of speaking to legal aid and that he took some time to think about it.

[27] The Applicant was informed by Ms Norton-Smith via text message exchange on 17 June 2025, after he had left work for the day, that his resignation had been accepted. This exchange, which was reproduced as attachments to the application, followed on from a discussion that had occurred during working hours that day, that the Respondent characterises as a resignation and which I have found is a dismissal. In any event, the circumstances are such that the Applicant had the benefit of the full 21 day period in which to lodge an unfair dismissal application.

[28] The final text message in the exchange referred to at pargraphs [15] and [27] above was from the Applicant. It said "Sorry I didn't accept that I resigned so that means I've been sacked unfairly". The following day, Mr Campbell had a telephone discussion with the Applicant. The Applicant says that during that conversation, he questioned whether Mr Kingston had been paid more than him, and Mr Campbell assured him that he had not been. The Applicant's evidence is that he suggested to Mr Campbell that on that basis, there was no dispute and Mr Campbell said that he would have a discussion with the co-director of the business (Mr Isles) and Ms Norton-Smith and get back to him. Mr Campell's witness statement did not address this conversation, and he had some difficulty recalling the events of 18 April during his oral evidence. He had just commenced a period of parental leave to care for a baby at the time of the events in question. Nonetheless, Mr Campbell did later send a text message to the Applicant advising that he had spoken with Mr Isles and Ms Norton Smith and that "there is no way of moving forward after you told Stacey yesterday that you were giving your two weeks notice". In the circumstances, I find that the Applicant took some steps to dispute his dismissal on 18 June 2025.

[29] No submissions were made about the issue. The delay is not significant enough to warrant a presumption of prejudice, and in the absence of any material from the parties on this issue I treat it as neutral in my considerations.

• [30] In determining this extension of time application, the parties have not been required to provide detailed evidence on the merits of the substantive matter. This would not have been an appropriate course. Rather, the instant task insofar as it concerns the merits of the matter is to determine whether the Applicant can establish the matter is not without merit.[30] That threshold is comfortably crossed in this case.

• [31] The finding that Mr Houstein's resignation was a heat of the moment resignation that ought not to have been treated as a resignation, speaks to the merits of the Applicant's claim. This is particularly so in the face of the submission by Mr Isles that the Applicant didn't do anything wrong while working for the Respondent and that there was no issue with his work ethic.[31]

[32] No submissions were advanced in relation to this matter. I do not regard it as a matter of significance in the current circumstances.

[33] Having taken each of the factors referred to in subsection 394(3), I am persuaded, on balance, to grant the extension of time sought by the Applicant.

[34] I place substantial weight on the circumstances that led to a delay in this case. There was no dispute in relation to the Applicant's evidence about what he had been told by the post office staff about the delivery timeline for his application. The fact that the application arrived in Hobart before business hours on the last day of the 21 day period, but did not make to the Commission until 8 days later on 16 July 2025 is no fault of the Applicant. There was clearly some unfortunate delay on the part of Australia Post and/or the Commission in getting the application from the Hobart GPO to the Fair Work Commission's premises - which took more than 24 hours. But "unfortunate" is too gentle a word to describe the circumstances whereby it could thereafter linger in a shared mailbox at the Commonwealth Courts building in Hobart for a further week before making it to the Fair Work Commission registry. The Applicant acted quickly upon making inquires to provide a further copy to the Commission when it appeared his application had gone missing, driving some 170 kilometres in order to do so. It is the Applicant's intervention that enabled an application to be filed on 11 July, three days out of time. He ought never have been required to do this. This turn of events is apt to be described as out of the ordinary course, special or unusual. This is sufficient to enliven the discretion to extend time in this matter.

[35] The circumstances of the delay, together with the absence of prejudice, my assessment of the merits and the fact that Respondent was on notice that Applicant disputed his dismissal, are all in favour of exercising the discretion to extend time.

[36] The Applicant has been granted an extension of time to permit his application lodged on 11 July 2025 to proceed, and I have found that the circumstances of his employment ending are properly considered a dismissal within the meaning of section 386 of the Act. Accordingly, the Applicant will be permitted to proceed with his application.

[37] Directions for the preparation for and holding of a hearing on the merits will be issued in short order. In my assessment, the matter is appropriate for an early referral for a member assisted conciliation so I will endeavour to arrange that, subject to availability.

[1] [2017] FWCFB 3941.

[18] [2018] FWCFB 901

[19] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) [2018] FWCFB 901 at [38]- [39].

[20] [2011] FWAFB 975.

[21] Kurtev v. KCB Australia & Anor [2025] FWCFB 13 at [24], Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [17].

[22] Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [18].

[30] Withers v. Contare [2022] FWC 967 at [33]- [37].

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