Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] This is an edited version of my decision delivered ex tempore and recorded in transcript on 26 June 2025. I exercised my discretion to allow a further period of time within which the application could be filed, that being 14 April 2025.

• [2] Mr Sandeep Singh (the Applicant or Mr Singh) commenced employment with Coles Supermarket Australia Pty Ltd (the Respondent or Coles) in around April 2022, and he was employed in the position, certainly when he ended his employment, as a casual customer delivery driver. The reason given by the Respondent for the decision to terminate his employment was that there was a lack of casual shifts at times that aligned with the Applicant's availability, or alternatively, because the Applicant had not updated his availability in the necessary software that Coles used to assess the availability of casual employees.

• [3] As I will deal with later, that termination was sent by way of an automated letter without any apparent human involvement. Now, the Applicant has made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act), and he lodged that application on 14 April 2025.

• [4] As it will be made clear as I progress in the decision, I will make a determination that the application was filed outside the statutory time frame. Applications for unfair dismissal remedy must be made within 21 days after the dismissal took effect. For reasons that follow, I have determined that the dismissal took effect on 5 March. There's a dispute, as the parties were aware, as to when the termination of Mr Singh's employment took effect.

• [5] The relevant facts in this matter are largely not in contest. Indeed, there was some contest in the facts prior to today, but largely those contests were cleared up, particularly any contest as to what happened in the conversation between Mr Traynor and the Applicant on 5 March but, I will come back to that.

• [6] Mr Singh commenced employment with Coles in April 2022. On 7 August 2024, the Applicant accepted a role as a customer delivery driver on a casual basis at the Truganina Customer Fulfilment Centre (CFC). The Applicant seemed to be not willing to accept that that occurred, but it's apparent on the evidence that it did. Not a lot turns on that in terms of the decision that I'm making today. Suffice to say, it's crystal-clear that that was the contract of employment that covered his employment at the time he was terminated.

• [7] It's also pretty uncontroversial that due to the Applicant's limited availability during Monday to Friday, because he worked for a different employer then, and he confirmed in the witness box for me today that he still does, that the Applicant performed only 14 shifts, all on the weekends between 31 August and 20 October 2024. So, it was all weekend work during that period that the Applicant performed, because he was not available to work during Monday to Friday, and that remains the case.

• [8] There doesn't seem to be any contest to the submissions and evidence provided that from late October 2024 the CFC was, as Coles put it, fully staffed with permanent team members, and for that reason the offering of shifts to casuals decreased during that that period. The Applicant is not in a position to concede that that was the reason for it, but in any event, it was clear that on facts there was a reduction in the shifts offered to casual employees.

• [9] Importantly for the purposes of this matter, there was no casual Customer Delivery Driver (CDD) work that was available on weekends. Then between 22 November to 31 December, the Applicant wasn't available to be offered shifts by the Respondent. As I recall, he was travelling at the time, but that's neither here nor there. He wasn't available. There's no contest about that but, relevantly, before that date and after that date, the Applicant's availability for weekend work was apparently not matching up with the operational requirements of the business. Simply put, they didn't need any CDD drivers, or not many, on the weekends.

• [10] The next thing that's relevant in the chronology is that on 26 January, Coles payroll - as we established during the evidence today -thorough an automated system, sent him a letter that put him on notice that he hadn't worked for over 60 days, so he was asked to update his availability before 9 February and he was informed that if he did not provide that information, or his availability did not meet operational needs, then the Respondent wouldn't be in the position to offer him any further shifts.

• [11] The Applicant did not update his availability, and in the circumstances that were confirmed today, he no doubt didn't do so because his position didn't change, that is he was still not going to be available on any other time than weekends, and the position was that the company didn't have any work for him at those times.

• [12] Relevantly, in terms of the 16th of February, the Applicant put in a request to convert from casual to part-time. I should mention that the Applicant mentioned in his material that that application was made apparently arising out of conference before me in respect of a separate dispute the Applicant had brought to the Commission.

• [13] As the Respondent points out, that's the first conversion request the Applicant made while he was working there. Importantly, while the CFC was considering the request, the automated system sent correspondence purportedly ceasing the Applicant's casual engagements on 27 February 2025. I will come back to that point.

• [14] That correspondence that was sent to him on 27 February reads as follows:

I refer to our previous letter sent to you on 25.12.2024 seeking information in relation to your work availability. Our records indicate you have not worked a single shift with us for over 90 days. As you have either not returned your availability information, or your availability does not meet the needs of the business at this time, Coles will not offer you any further casual shifts. If you would like to discuss this matter further, then please do not hesitate to contact me at the store. As Coles will not be offering you any further casual shifts, please return any company property that you may have as soon as possible. Thank you for your contribution to Coles to date. Yours sincerely, Karen Sutton, Customer Delivery Driver, Truganina CFC.[1]

• [15] It was established today that Ms Sutton doesn't generate those letters; the computer generates those letters. She is no doubt aware of them and when they're sent but, there isn't really any sort of human intervention in this purported dismissal process that took place in respect of this Applicant.

• [16] It's relevant that at the time that that letter was sent, the Applicant had still not been told whether or not his casual conversion request was accepted or not, either verbally or in writing. My finding is this, in certain circumstances, that letter from Coles may constitute an indication that the Applicant's employment has come to an end, but there are particular circumstances in this matter that all need to be taken into account.

• [17] In any event, on 5 March, continuing the chronology, the Applicant and Mr Traynor had a discussion by phone, if I recall the evidence correctly. The evidence of Mr Traynor, which was accepted by the Applicant today, was relevant on two key points: (1) that Mr Singh, the Applicant, acknowledged he was unhappy with his dismissal, and that he recalled Mr Singh saying, 'It's not fair. You should have to give me shifts', and Mr Traynor saying that he is sorry said, 'But we can't offer the casual shifts as we don't have them on weekends'. The Applicant agreed that conversation took place.

• [18] There were other conversations that took place then on 26 March, where Mr Traynor confirmed to the Applicant that there were no other job vacancies at the CFC on the weekend. I should say that that conversation happened after Mr Traynor informed the Applicant that although there were other opportunities at the CFC, he would make inquiries and revert. So, there was a 21-day period between 5 March and 26 March where, essentially, the Applicant was waiting for Mr Traynor to come back to him with any other opportunities.

• [19] Prior to that, on 25 March, the Applicant sought that Mr Traynor reply to his email, so he has recorded communication. On 1 April, the Respondent formally confirmed to the Applicant in writing that his casual to part-time conversion request had not been granted. Now, just going back to the conversation on 5 March, it was established on the evidence today that Mr Traynor also confirmed that fact in that conversation on 5 March.

• [20] Turning to the consideration as to when the dismissal took effect in respect of Mr Singh, it's established that a dismissal does not take effect until it's communicated clearly to the employee. There's no need for me to go to the authorities on that. There is some authority cited by the Respondent in their materials, which I don't take issue with.

• [21] However, all the circumstances have to be looked at in a particular case. Also, it's important to always remember that in terms of determining the effective date of dismissal, it's determining when the employment relationship ended, not when the contract of employment has come to an end - that's the relevant consideration for the purposes of the Act; in particular, in respect of determining dismissals in this part of the Act.

• [22] In this matter, the position of Coles is that the communication to the Applicant on 27 February, which was generated by their computer software, was communication that ended the employment relationship. It's trite to observe that the Applicant was a casual employee, and the communication from his employer that he would no longer be offered shifts may, ordinarily, absent other circumstances, be considered communication that brought the employment relationship to an end. Indeed, an employer would be entitled to state that, if they saw fit, to consider that as bringing the employment relationship to an end.

• [23] However, the letter that's automatically generated on 27 February is not the clearest in terms of communicating the end of the employment relationship. It doesn't indicate any words to say that the employment has ended or that the Applicant is dismissed. All it really extends to saying is there are no longer any shifts because he hasn't updated his availability and an opportunity to ask further questions.

• [24] It does request the person return any company property, which is indicating the employment is at an end. However, the circumstances are that at the same time, or during the time that letter is sent, the Applicant has also on foot an application for casual conversion which has not yet been dealt with, and on the evidence was clearly still being contemplated, whether it was a valid application or not. As far as the Applicant understood, it was still being contemplated.

• [25] It's trite to observe that a conversion request can only be under consideration from an actual casual employee. That's an indication that the Respondent itself considered the employment relationship to be still in place. There was no action taken by the Respondent to write to the Applicant, as to be consistent with the position of the Respondent. That is, they could have written to the Applicant after 27 February and said, 'we're no longer continuing with your casual conversion, because you're no longer an employee'.

• [26] It was unlikely that was ever going to happen, because Mr Traynor's evidence was that he didn't know about the letter being sent and, indeed, he was unaware of his obligations to respond in writing within a particular time. There was never an indication from Coles that they could no longer consider the conversion request because he was no longer an employee.

• [27] Rather, there were then further conversations with Mr Traynor, where Mr Traynor was seeking, and I should say all indications are that Mr Traynor was going above and beyond, trying to find a role for the Applicant, in spite of the Applicant's, frankly, rather limited availability to Saturdays and Sundays.

• [28] Having regard to those particular factual circumstances, I'm satisfied of two things: (1) that the employment relationship was still on foot, at least until 5 March, because the Applicant - as we heard from his evidence today - viewed those automated correspondences as essentially further requirements to update availability, and didn't clearly understand at that time that he received it on 27 February that he was dismissed.

• [29] However, on 5 March, the circumstances clearly change, and I will come back to that. Absent what happened on 5 March, I think it's open to find that the employment relationship actually continued on to 1 April, but I don't think that is available on the evidence, because the Applicant has conceded that in the conversation with Mr Traynor on 5 March, he complained of being dismissed; he clearly knew he was dismissed at that time.

• [30] I'm prepared to accept that he formed that understanding after he had the conversation with Mr Traynor. If there was any doubt the Applicant's dismissal took effect on 5 March, as it was clearly communicated to him, or at least he understood that to be the position on his own evidence on that date and that concludes the consideration in terms of the effective date of termination of employment. I'm satisfied that the effective date termination was 5 March, based on the evidence as it was presented to me today.

Application was filed outside the statutory timeframe

• [31] That being the case, the application for a remedy should have been lodged no later than 26 March and the application was therefore lodged outside of the time prescribed, and the application was made in effect 22 days after the last day on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal may be made if it's satisfied that there are exceptional circumstances.

• [32] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute allows me to allow a further period, but that discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

• [33] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are: the reason for the delay, whether the applicant first became aware of the dismissal after the date that it took effect, any action taken by the applicant to dispute the dismissal, prejudice to the respondent, including prejudice caused by the delay, the merits of the application, and fairness as between the applicant and other persons in a similar position.

• [34] Each of the matters need to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

• [35] Briefly, exceptional circumstances are circumstances are out of the ordinary course, unusual, special, or uncommon. But the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that taking into account section 394, subsection (3), that there are exceptional circumstances, and I will now consider those matters in the context of the application.

• [36] Firstly, turning to the reason for the delay, the Applicant does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to what might constitute an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour; however, all the circumstances have to be considered.

• [37] Now, in the circumstances with this case, essentially in terms of the reason for the delay, the position is really set out by the Applicant in what he gave evidence in respect of on page 5 of the court book today. Essentially that's connected with the chronology that I went through at length earlier, where he was engaged in (1) pursuing his casual conversion, and (2) continuing his dialogue with Mr Traynor.

• [38] I think all of those are relevant circumstances. They're circumstances where - and I deal with those in other headings, under the criteria, but for the purposes of this decision - I have determined that the date of dismissal was 5 March, the consideration is what was the reason for the delay after that time. I'm not satisfied there is a satisfactory or acceptable reason for the delay that is advanced. So, in the circumstances, having not been satisfied the Applicant has provided an acceptable explanation for the delay, that's a matter that weighs against the Applicant in this case.

Whether the Applicant became aware of the dismissal after the date it took effect

• [39] In the circumstances of this case, the Applicant's evidence today is that he was aware the dismissal took effect on 5 March. That was established on the evidence. So, in the circumstances of this case, that's a neutral consideration.

Action taken by the Applicant to dispute his dismissal

• [40] Turning to action to be taken to dispute the dismissal, the Applicant was engaged in discussions with Mr Traynor, and to be clear, it was clear on the evidence that Mr Traynor was the face of the employer as it pertained to the Applicant, not the people that were purportedly authoring the computer-generated letters, and it was him that he was engaging with about his request for casual conversion. It was Mr Traynor that he complained to and contested vigorously, on the evidence, his dismissal; that he thought that it should not have occurred. It was Mr Traynor he was engaging with vigorously to seek some sort of resolution by way of re-employment, other jobs, and Mr Traynor, as I indicated earlier, I think, made efforts to assist the Applicant in that regard.

• [41] It's relevant that in terms of the chronology I went through earlier, that Mr Traynor, again, I think because he was wanting to do what he could to assist the Applicant, indicated that on 5 March that he was going to look for other jobs within the CFC and retail - usually that he said he wouldn't have a lot to do with, with them, but he would check that - and that he would revert back to the Applicant. Mr Traynor did ultimately do that, but that was some period later; some 21 days later.

• [42] In the circumstances, I'm satisfied that the activity the Applicant was involved around that time with Mr Traynor was action that was taken to dispute the dismissal and should be properly characterised as such. I have taken that into account, and in my view that weighs in favour of the Applicant.

• [43] In terms of prejudice, the employer does not rely on prejudice. There's no evidence of prejudice. In the circumstances, that is a neutral consideration.

• [44] Turning to the merits, in cases such as this, whether the substantial merits of the application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant's case at its most favourable.

• [45] Now, doing that, the position seems to be reasonably strong in respect of valid reason; that the reason for the dismissal, potentially valid reason, would be that there was no capacity of the Applicant to accept shifts that Coles were making available, and it was for that reason that ultimately Coles determined to end the employment relationship.

• [46] That said, the process for the dismissal involved an automatically generated letter, no human involvement. Indeed, the human that was involved in the matter, Mr Traynor, who was very generous in his time, as I said earlier, in terms of trying to assist the Applicant - well, on re-examination, there was some proposition put to him that he did know about the dismissal, which contradicted his earlier evidence that he didn't know about the dismissal. That exchange wasn't particularly satisfactory.

• [47] I think the better position is that Mr Traynor didn't know about the process that had been followed to affect the dismissal, but, of course, he had the Applicant on 5 March complaining about the dismissal, and he has become aware - he certainly knew about it at that point. Suffice to say, there was no particular process followed by the organisation to put him on notice of his impending dismissal, perhaps beyond the previously automatically generated letter.

• [48] The Commission has previously made decisions indicating it's not satisfactory to terminate people by text messages. That's not what has occurred here but, purportedly this dismissal has taken place without any opportunity or without any notice of the reason for the dismissal, an opportunity to respond, or any of those other factors that the Commission would consider in an unfair dismissal case. So, they are all factors, I should say, that weigh in terms of considering the merits, and based on that assessment, it seems to me that on preliminary assessment that the application is not without merit.

• [49] That's not to suggest it would succeed, but I'm satisfied there's at least some merit which would give the Applicant a justifiable reason to pursue his unfair dismissal claim, and in the circumstances that's a matter that weighs slightly in favour of the Applicant. I will just add there was a question about what the remedy would be in all of the circumstances but, that's not a factor I'm taking into account. The question is what the merits are, and do the merits weigh in favour.

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

• [50] In terms of fairness, the Respondent has made a submission to the effect that there's nothing exceptional about the Applicant's circumstances in respect to the late filing of his application, and therefore it would be unfair to others if the Applicant's circumstances were held to be exceptional. Well, that's really a plea to find that it's not exceptional. I understand that that's the position of the Respondent, but frankly, that's not a matter that goes to the particular consideration.

• [51] Suffice to say, that the rather odd circumstances around this, as I indicated during the hearing, rather messy termination are unique in my experience in the Commission and I'm not satisfied that there's implicitly a matter that arises as between fairness between the Applicant and others in a similar situation, as the circumstances are somewhat unique. That's a neutral consideration.

• [52] In conclusion, statutory time limits that are applicable to the exercise of a person's right to bring an unfair dismissal remedy application are an expression of the parliament's intention that rights should be exercised promptly, so as to bring about certainty. The time limits seek the balance of the right to bring an action against the desirability for prompt action and certainty.

• [53] The reason for the time limits is that parties should be able to know that if there is a question about an action that has been taken by one party - in this case, in relation to a dismissal - that the right to question that action will be exercised promptly.

• [54] Otherwise, except in exceptional circumstances, the right to bring the action will be lost. A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect, and it is only in exceptional circumstances that the Commission will consider whether to allow a further period.

• [55] Weighing all of the matters that I must weigh, and taking into account the matters set out in section 394(3) of the Act, I am satisfied that there are exceptional circumstances in this case warranting a consideration for the exercise of my discretion to allow a further period. As I said earlier, considering the reason for the delay, I'm not satisfied that there is an acceptable reason for the delay, and that is a fact that weighs against the Applicant.

• [56] The consideration as to whether the Applicant first became aware of the dismissal after the date it took effect is a neutral consideration. In terms of action taken by the Applicant to dispute his dismissal, as I indicated, that weighs in favour of the Applicant. In respect of prejudice, that's neutral. In respect of merits, that's a matter that weighs slightly in favour of the Applicant. In respect to fairness, that's a neutral consideration.

• [57] When I consider each of those matters set out in section 394(3) in the context of the evidence in this case, and when I look at those circumstances collectively, I am satisfied that they establish that there are exceptional circumstances in this case. I should say on fine balance I make this finding that there are exceptional circumstances, but on any view, the circumstances around this - when looked at in totality, as one is meant to do with these matters - reach the high threshold for being exceptional and that warrants the consideration of the exercise of my discretion to extend the period within which the application has been made.

• [58] As to whether I should now exercise my discretion, there has been no reason advanced, nor do I consider there to be a reason not to exercise the discretion, and so I propose to exercise it, and therefore I propose to allow a further period within which this application may be made.

• [59] That further period is extended to 14 April 2025, which is when the application was made.

[1] Digital Hearing Book (DHB), page 41.

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