s.394 - Application for unfair dismissal remedy

Reed Mining Services Pty Ltd (in liquidation)

Application for unfair dismissal remedy - respondent company in liquidation - alleged non-payment of wages - whether applicant dismissed - date dismissal took effect - whether extension of time required - whether exceptional circumstances - utility of further proceedings

[1] On 17 September 2025 the applicant, Mr. Ayres, filed an application under s. 394 of the Fair Work Act 2009 (Cth) (Act) alleging that he had been unfairly dismissed by the respondent, Reed Mining Services Pty Ltd (in liquidation).

[2] On 12 November 2025 an email was sent from my Chambers to the parties requesting that the respondent provide an F3 Employer Response form to the application by no later than 14 November 2025. No material was received in response to this direction. A directions hearing was held on 27 November 2025. The respondent did not appear. Directions for the filing of evidence were sent to the parties on the same day.

[3] On 27 November 2025, my Chambers received correspondence from the firm Worrells, advising that Mr. Asper from that firm had been appointed as liquidator of the respondent company on 1 October 2025. The email advised that there were insufficient funds to cover the liquidator's involvement in the matter and that the liquidator did not wish to participate in the unfair dismissal proceedings. The correspondence also advised that pursuant to s.500(2) of the Corporations Act 2001 (Cth), the applicant was required to seek leave of the Court in order to be able to proceed with the matter. Subsequently, directions were made asking the applicant to make any submissions relating to the operation of s.500(2) of the Corporations Act and asking the liquidator to provide a copy of the resolution for voluntary winding up.

• [4] On 5 December 2025, the liquidators clarified by email that the company was not wound up voluntarily. They provided a copy of an order made by the Federal Court of Australia at the suit of the Deputy Commissioner for Taxation and dated 1 October 2025, ordering the respondent company to be wound up in insolvency under the provisions of the Corporations Act.[1] The correspondence advised that there was no dividend expected in respect of employee creditors of the respondent and that there was a material sum of superannuation contributions exceeding $800,000 outstanding. The liquidator confirmed that he did not intend to take any further action in relation to the matter and that the liquidation was unfunded.

[5] Further correspondence and directions were sent to the parties in the following terms:

We note the liquidator has referred to s.471B of the Corporations Act 2001. Given the section limits proceedings in a 'court' and the Commission has been held not be a court (see Smith v. Trollop Silverwood and Beck Pty Ltd (2003) 142 IR 137) it appears the section does not operate to restrict unfair dismissal proceedings or require the applicant to seek leave of the court.

However, we also note the advice below in relation to the financial position of the company. Given that reinstatement is not sought and would likely be inappropriate in any event (see Klooger [2018] FWC 6836) and the company would appear unable to meet any order for compensation in the event the application is successful, there may not be any utility in the continuation of the proceedings.

If the applicant wishes to make any submission in relation to this issue, they should do so by no later than 4:00PM (AEDT) Friday, 12 December 2025.

[6] Short submissions in relation to this issue were made by the applicant in response to these directions the effect of which was that, notwithstanding the position of the respondent and the apparent lack of utility in the continuation of the matter, the applicant wished to press the application.

[7] On 13 January 2026, and in the absence of materials received from the parties in response to the initial directions, further directions were sent to the parties in the following terms:

The Deputy President issued the attached directions to the parties on 27 November 2025, requiring amongst other things, that the applicant was to file materials in support of the application by no later than 11 December 2025. Chambers is not in receipt of any material from either party in compliance with the directions.

We note the advice of the liquidator that they do not intend to participate further in the proceedings.

Chambers notes that the matter is currently listed for hearing at 2:00PM (AEDT) on Friday 16 January 2026. In the absence of any materials or evidence filed by the applicant, it is unlikely that there would be any basis upon which the Commission can be satisfied that the applicant has been unfairly dismissed or that any remedy is available in relation to the application.

In the absence of an application for leave to file material outside the timetable provided for in the attached directions by no later than 4:00PM (AEDT) tomorrow, 14 January 2026, the Deputy President proposes to vacate the listing and may proceed to deal with and dismiss the application without further notice.

[8] The applicant filed materials in response to the above directions and requested leave to file further materials outside of the directed timetable on 14 January 2026. This leave was granted and the applicant filed further materials on 21 January 2026. The matter was listed for conference on 6 February 2026. Neither party attended this conference.

[9] On 6 February 2026, the following email was sent to the parties:

Chambers refers to the listing of the above matter at 9:00am (AEDT) today, 6 February 2026 and note that there was no appearance by either party.

The Deputy President has considered the material filed by the applicant to date in response to previous directions and notes the following:

• No witness statements or written submissions have been filed.
• The documents that have been filed include a Local Court Statement of Claim filed by the applicant against the respondent which includes the following statement in the pleadings:

"The plaintiff was employed by the respondent from approximately 22 May 2025 (presumably a typographical error that should read 2024) to 29 January 2025, with formal resignation submitted to the defendant on 3 September 2025."

• Payslips provided indicate that the last pay period for which the applicant was paid by the respondent was for the period ending 12 January 2025.
• The application for an unfair dismissal remedy was filed by the applicant on 17 September 2025.

Given the indication in the applicant's pleadings that the applicant's employment ended in January 2025 and in the absence of further evidence as to the circumstances of the applicant's employment after 29 January 2025 and the timing and circumstances of the alleged dismissal, it may be that the application has been made outside the time limit prescribed by s.394(2) of the Act. The Commission is required to determine whether the application was made within the time period required in s.394(2) prior to dealing with the merits of the application (s.396(a)).

The Deputy President proposes to give the applicant one final opportunity to provide material in support of the application. Directions in relation to this matter are attached. Parties are advised that the matter may be determined on the basis of the material received by the date specified in the attached directions without any further notice or listing of this matter.

[10] Directions attached to the above email were in the following terms:

1. The Applicant is required to file the following material in the Fair Work Commission, and serve a copy on the Respondent, by no later than 4:00PM (AEDT) Thursday, 12 February 2026:

1. Witness statements, a written submission, and other evidence on which the applicant seeks to rely which addresses:

1. Whether the application was filed within the 21-day time period prescribed by s. 394(2) and if not, material addressing the matters set out in s. 394(3)
2. The circumstances and timing of the applicant's alleged dismissal by the respondent and how those circumstances constitute a 'dismissal' within the meaning of s. 386 of the Act
3. The merits of the application, including the matters referred to in s. 387
4. The remedy sought, including insofar as the applicant seeks an order for compensation, material addressing the matters refers to in s.392

[11] The applicant filed materials in response to these directions on 12 February 2026.The sum of materials filed by the applicant consists of payslips, from the pay period ending 10 November 2024 at the earliest to the period ending 12 January 2025 at the latest, letters of demand for unpaid wages sent from the applicant to the respondent and dated 25 February 2025 and 17 July 2025, a Statement of Claim filed in the Local Court of New South Wales on 9 September 2025, copies of bank records of the respondent company and brief written submissions which do little to address the issues referred to in the directions above. No witness statement was filed.

• [12] Section 396(a) obliges the Commission to determine whether an application for an unfair dismissal remedy was made within the period required in s.394(2) before considering the merits of the application. The applicant alleges that he was constructively 'dismissed' by the respondent on 1 September 2025 when he was forced to resign because of the ongoing non-payment of wages by the respondent.[2] The limited material available to me indicates however that the employment of the applicant had come to an end well before 1 September 2025. It was for that reason the applicant was directed to file material going to that issue.

[13] In order to bring an unfair dismissal application, a person must be able to demonstrate that they have been 'dismissed.' Section 386 provides that a person has been 'dismissed' if the person's employment has been terminated 'on the employer's initiative' (s 386(1)(a)), or 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' (s 386(1)(b)). I propose to deal with the issue of dismissal first and then come to a view as to the date the dismissal took effect.

• [14] In White v. Superior Facilities Pty Ltd[3] the Commission said:

A persistent and unjustified failure by an employer to pay salary is a repudiation of the contract of employment. Such a repudiation can amount to termination 'on the employer's initiative' for the purpose of s 386(1)(a). A termination of employment will be 'on the employer's initiative' if an 'act of the employer results directly or consequentially in the termination' (see Khayam v Navitas English Pty Ltd [2017] FWCFB 4082 at [37]), or the employer's actions are the 'principal contributing factor' which lead to the termination of the employment relationship (see Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200 at 205).

[15] In this case, the applicant claimed that the respondent had not paid at least part of the wages due to the applicant over the period September 2024 to 29 January 2025. An amount in respect of this period is claimed in the applicant's first letter of demand dated 25 February 2025 and in the second letter of demand dated 17 July 2025. The amount claimed was significant being $15,448.15 in the February letter of demand. This would be sufficient to constitute a repudiation of the applicant's contract of employment. It is also sufficient in my view to constitute a termination on the employer's initiative for the purpose of s.386(1)(a). The applicant's response to the claimed non-payment was to issue the two letters of demand. Those letters demand the payment of certain amounts but do not expressly say that the applicant has elected to accept the repudiation, being the non-payment, and treat the employment contract as at an end.

• [16] Unless a repudiation is accepted, the contract of employment is not terminated.[4] However, an election to accept a repudiation can be inferred by conduct where the conduct unequivocally conveys the decision to either affirm or terminate the contract.[5] The non-performance of work by an employee in the face of an employer repudiation would, in my view, be capable of constituting an acceptance of the repudiation by conduct and it appears on the material that this is what happened here. There is no evidence of the applicant having worked for the respondent beyond January 2025 and no evidence of any payment being made by the respondent to the applicant after that period. Nor was there any evidence of any claim for unpaid wages for work performed post-January 2025. The Statement of Claim of September 2025 refers to the applicant performing work for the respondent during the period May 2024 to January 2025 only.

[17] Unfortunately, in this case the applicant has provided little information about the circumstances and timing of his alleged 'dismissal' despite directions being made for him to do so. What is apparent is that there was a longstanding dispute about unpaid wages in January 2025. The limited available material supports a conclusion that the respondent had failed to pay the applicant at that point for periods worked by the applicant during the preceding months. I am satisfied that this failure ultimately constituted a termination on the employer's initiative. However, I do not consider that the termination occurred on 1 September 2025 when the applicant said he tendered his forced resignation.

• [18] It is clear from the Local Court Statement of Claim prepared by the applicant that the applicant himself considered that he was employed by the respondent from May 2024 until 29 January 2025. There is no evidence to suggest otherwise. It is possible for a contract of employment to endure after the employment relationship has come to an end.[6] Even if the applicant had elected not to accept the repudiation and had thereby kept the employment contract on foot until his 'resignation' in September 2025, there is no evidence of an employment relationship beyond 29 January 2025. I am of the view that the applicant's employment was terminated on the employer's initiative for the purposes of s.386(1)(a) and that the termination took effect on or about 29 January 2025.

[19] Having determined that a dismissal took effect at that time, the consequence is that the application was made outside the 21-day time period referred to in s.394(2). I must consider whether there are exceptional circumstances such that an extension of the time period should be allowed in accordance with s.394(3). The applicant was directed to provide evidence and submissions on this point. He failed to make anything of the opportunity.

[20] I have considered each of the matters in s.394(3). No acceptable reason for the delay was proffered. There was no evidence that the applicant first became aware of the dismissal after it took effect and no evidence that the dismissal was disputed, as opposed to the applicant raising a dispute about unpaid wages. I regard prejudice and fairness between the applicant and other persons as neutral considerations. The applicant has a prima facie case on the merits given the termination occurred because of the failure of the respondent to pay wages. Nonetheless my overall assessment is that there are no exceptional circumstances that would warrant an extension of time. Even if there were exceptional circumstances, I would not exercise my discretion in favour of extending time. The applicant does not seek reinstatement and it is plainly not appropriate in the circumstances. The respondent is in liquidation. It has no assets to meet any award of compensation. There is no utility in the matter proceeding any further.

[1] The order confirmed that Mr. Asper and Mr. Lucan had been appointed as liquidators jointly and severally.

[4] See Byrne v. Australian Airlines Ltd (1995) 185 CLR 410 at 427 and Visscher v. Guidice [2009] HCA 34; (2009) 239 CLR 361 at [55], [60] and [81].

[5] Sargent v. ASL Developments Ltd [1974] HCA 40; (1974) 131 CLR 634 at 646.

[6] See Byrne op cit at para [23] per Brennan J, Dawson and Toohey JJ.

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