Fair Work Commission|2025-09-02

Mrs Sarah Chamma v [2025] FWC 2501 (2 September 2025)

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application filed out of time - whether employee had completed the minimum employment period - application for extension of time - exceptional circumstances found and time extended - applicant found to have completed the minimum employment period

[1] Ms Sarah Chamma has made an application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging she was unfairly dismissed by Retailors Operations Pty Ltd (Retailors). Mrs Chamma's employment with Retailors was terminated effective on 25 June 2025. Her application was filed in the Commission on 4 August 2025 and is 19 days out of time. Retailors objects to the application on this basis and also claims Mrs Chamma has not met the minimum employment period within the meaning of the Act.
[2] I conducted a mention in relation to the matter on 14 August 2025 and made Directions that the parties file and serve material in support of their respective positions. I indicated that after having received that material, I would determine whether I considered it necessary to conduct a hearing in relation to the matter, or whether it could be determined on the papers. I decided to conduct a short hearing on 26 August 2025 which occurred by way of determinative conference. Mrs Chamma appeared for herself at the determinative conference and Ms Galli and Ms O'Hern, both part of the human resources department, appeared for Retailors. Mrs Chamma, Ms Galli and Ms O'Hern affirmed the truth of their assertions under oath and had the opportunity to ask each other questions about the evidence. Each gave evidence in a forthright and truthful manner and engaged with each other and with the Commission constructively, in terms of the evidence and the issues requiring determination.

[3] The nature of Retailors' business is that it manages retail outlets for various brands. The brands include Nike, Samsung and Mattel. At the time of her dismissal, Mrs Chamma was employed as a casual sales specialist at the Nike Eastland store.
[4] It is not in dispute that Mrs Chamma began working for Retailors in November 2016 and that at all relevant times she was engaged on a casual basis.
[5] Mrs Chamma explained the nature of this engagement by reference to some documentary evidence showing the system used to allocate work to casual employees. The system is based around what was described as a "website" that employees have access to. The part of the system provided in evidence is formatted like a calendar, in which an employee can indicate by highlighting sections on the calendar their availability for work. I was told that employees would intermittently be advised via email as to the offer of shifts after having indicated their availability in this way.
[6] There was no evidence as to any other particular system of regularity as to the allocation of work to employees like Mrs Chamma. Retailors explained that their store managers are responsible to offer shifts to casual employees according to a template roster they work from: first allocating work to their permanent staff and then filling up the rest of available shifts from the casual workforce according to the availability indicated by the system. The template roster used by the store manager is influenced by matters such as customer demand, whether a peak retail period is occurring and similar factors.
[7] In addition to this system, Mrs Chamma described how there is also direct interaction between employees and store management, and between employees themselves. There was in evidence examples of text messages exchanged between Mrs Chamma and her store manager where after having been allocated a shift she queried its timing or indicated her unavailability. Mrs Chamma also described how there is a "Whats App" group among employees which is used by them to engage with each other and "give away" or swap shifts. She explained that from time to time a shift might be given away or swapped through this kind of communication, which is then relayed direct to store management. It is therefore obviously the case that layered over the automated system of distribution of shifts is human interaction which relates to the allocation of work.
[8] There was no dispute as to the manner in which Mrs Chamma described this system and her description was at times supplemented and affirmed by Ms Galli and Ms O'Hern. There was also no dispute that this was the system used in respect to Mrs Chamma's employment from commencement in 2016 continuing through to its termination. I find this to be part of the nature of her engagement with Retailors.
[9] I consider that I can infer from the evidence about this system, which was not contested, that the allocation of shifts of work to a casual employee such as Mrs Chamma inevitably occurs in a somewhat random fashion. The allocation of shifts will be influenced by a range of variable factors such as the shifts that are available according to customer demand, retail performance and other business drivers, as well as employee availability. It also appears likely to involve a somewhat arbitrary human element, governed as it is by a store manager who decides who to offer shifts to.
[10] Mrs Chamma gave an account of how her work for Retailors played out in practice according to this system. While there was no documentary evidence before the Commission about this work, Mrs Chamma's account, which is set out below, was uncontested and indeed affirmed by Retailors.
[11] Mrs Chamma said that when she started working at the Eastland Nike store in November 2016, she worked at least monthly and usually weekly according to the system of the allocation of shifts. She said this continued throughout 2017 and 2018, when she worked at least monthly, usually weekly, and more frequently during peak retail periods.
[12] In 2019, Mrs Chamma's allocation of shifts reduced, but she continued to work at least one shift a month (and in some months, more than that, especially in peak times).
[13] In 2020, due to the impact of COVID-19, Mrs Chamma worked about weekly in the early part of the year, but not again until the middle of the year and again in November 2020, when she began working again about weekly. These breaks were a result of the COVID-19 lockdowns in Victoria. In 2021, again interrupted by the impact of COVID-19, Mrs Chamma continued to work at least monthly, subject to the lockdowns that occurred throughout that year.
[14] In 2022 Mrs Chamma worked about one shift a month, and in some months several shifts.
[15] In 2023 Mrs Chamma worked only intermittently, one shift in March, in June, in August in November and December.
[16] Since 1 January 2024, Mrs Chamma has worked only two shifts, each of 3 hours, for Retailors. These occurred on:
1. 14 July 2024, 2:00PM until 5:00PM.
2. 13 May 2025, midday until 3:00PM
[17] Retailors confirmed that Mrs Chamma's account of her history of work over the years was accurate.
[18] Mrs Chamma said that during 2024, she cannot remember being asked to work shifts and declining them. She said she continued to show her availability of shifts through the "website".
[19] Having worked frequently during 2016 - 2022, save for the impact of COVID-19 lockdowns, it struck me as odd the sudden reduction in work during 2023, and even odder the significant reduction in 2024 (1 shift only) and 2025 (1 shift only). To a large extent, on the material before me, this mystery remains unexplained. Retailors said it has experienced a decline in customers, sales and retail traffic. Mrs Chamma said she just assumed there was no work available.
[20] Four things occurred during the first half of 2025 which are relevant to the circumstances surrounding Mrs Chamma's termination of employment.
[21] First, Retailors undertook a process to review its casual workforce, and identify low / poor availability employees who were impacting upon its rostering processes. It communicated with employees advising of minimum availability expectations - that casual employees should be available for at least one weekday and one weekend day per week. Mrs Chamma confirmed she was aware of this communication and evidence was provided showing Mrs Chamma "acknowledged" receipt of this communication.
[22] Secondly, some effort was made by Retailors to have Mrs Chamma take up shifts of work at Eastland. This occurred as follows:
1. The store manager at Eastland contacted Mrs Chamma to encourage her to attend for team meetings, but this did not occur. Mrs Chamma said the meetings had been scheduled at times she could not attend. It seemed this was not ideal, as the team meetings were useful opportunities for employees to remain connected with their work and each other but there also seems to be a tolerance on Retailors' part if unavailability means an employee cannot attend.
2. Mrs Chamma was offered a shift on 20 March 2025, to work from 8:30AM until 12:30PM. This aligned with what Mrs Chamma had indicated her availability to be on that day (she had indicated availability for the whole day) but in a text message exchange with store management she said she was not available. She explained she thought the shift had been allocated in error, as the 8:30AM commencement time seemed to indicate responsibility for opening the store, which Mrs Chamma was not used to. As I will mention again below, I suspect that another issue was likely to be that despite having indicated her availability, starting work that early did not suit Mrs Chamma.
3. Mrs Chamma was offered two shifts in May 2025. There was some suggestion in the evidence before me that these shifts were not part of the usual template and were specially allocated to her in an effort to "induct her back in" to the store, contrived to suit her understood availability. Mrs Chamma performed one of these shifts (on 13 May 2025) but arranged to give another away to a colleague, due to her unavailability.
[23] It is important not to overstate these efforts to have Mrs Chamma take up shifts of work at Eastland. On the evidence before me, they were genuine, but at the same time it was not contested that Mrs Chamma had indicated through the website her availability to work every day of the week from 11:00AM until 4:00PM. Despite this, she was only offered three shifts.
[24] Thirdly, in May 2025, Mrs Chamma requested a transfer to the Nike Northland store, as it is closer to her new residence. This appeared to result in a pause in the efforts to have her take up work at Eastland, while, on the evidence before me, Retailors genuinely explored whether a transfer could be facilitated for Mrs Chamma to Northland, in Melbourne's north, or alternatively Highpoint in Melbourne's west. The request could not be facilitated because there was no availability at these stores.
[25] Mrs Chamma conceded that her availability for work had altered when, sometime in 2024 she moved residence, and by the start of 2025, did not consider herself available to work "full days" and almost always indicated an availability to commence work at 11:00AM. This was said by Retailors to be one of the reasons why she was only offered three shifts during the first six months of 2025. Retailors said its preference was for employees to work full days. Mrs Chamma said that in her experience employees indicated all sorts of availability for work outside of simply full day shifts. Retailors conceded this was probably the case, but that full days were preferable.
[26] Fourthly, it appears that in June 2025 when Retailors reinvigorated its efforts to ascertain Mrs Chamma's availability and have her attend work, it was discovered that she was overseas until at least August 2025.
[27] One of the few matters of factual contest is whether Mrs Chamma advised Retailors she was unavailable for work and was overseas. Mrs Chamma said that when she worked during May 2025, she told her store manager. Retailors say they have consulted with their store manager, who apparently recalls no such thing.
[28] It was accepted that during the period Mrs Chamma was overseas, she had not indicated her availability for any shifts through the "website" (in that sense communicating her unavailability).
[29] On the basis that it considered it had not been made aware Mrs Chamma would be entirely unavailable to work while she was overseas, and because she was not meeting its minimum availability requirements, Retailors advised Mrs Chamma on 25 June 2025 that "we will need to look at ending your casual employment agreement with Retailors effective end of day today (25 June 2025)", and went on to wish her well with her future endeavours. Mrs Chamma asserted this amounted to the termination of her employment and Retailors did not cavil with that proposition.
[30] Mrs Chamma filed a "Case statement" in relation to her application, addressing matters including the reason for the delay in her application. She said that she was overseas at the time of her termination of employment, and experienced time zone differences, unstable internet access and limited access to legal advice or Fair Work resources. She said that as soon as she returned to Australia on 31 July 2025, and had access to stable communication, and recovered from illness, she sought advice, familiarised herself with her workplace rights and acted promptly to lodge the matter with the Commission. In oral evidence she said upon return from overseas she had a bad cold. In this regard I note the delay between Mrs Chamma's return to Australia and the filing of the application on 4 August 2025 is a further 4 days.
[31] I note that whilst overseas (she left on 6 June 2025), Mrs Chamma did correspond with Retailors on 3 occasions. Mrs Chamma said that these brief emails were sent via her mobile phone, and she had no other access to communication. This was a particular reason she said she could not file her application in the Commission - not having an access to a computer through which to do so.

[32] Before considering the merits of an unfair dismissal application such as that filed by Mrs Chamma, the Act requires I must first decide several matters, including, relevantly, whether the application was made within the time limit and whether the person was "protected from unfair dismissal" [1].

[33] Whether a person is "protected by unfair dismissal" requires, among other things, consideration to be given as to whether the person is an employee who has completed a period of employment with his or her employer of at least the "minimum employment period"[2].
[34] In the case of Retailors, who is not a small business, the minimum employment period is 6 months[3].
[35] The "period of employment" is the period of continuous service the employee has completed with the employer. A period of service as a casual employee does not count unless[4]:
1. The employment as a casual employee was as a "regular casual employee"; and
2. During the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
[36] A "regular casual employee" is an employee who is casual, and who has been employed by the employer on a regular and systematic basis[5].
[37] "Continuous" service is the period during which the employee is employed by the employer. It does not include periods of unauthorised absence or unpaid leave (except some kinds of unpaid leave) but it is not "broken" by these periods[6].
[38] To calculate whether the requisite period of service has been completed, periods of service during which a casual employee was employed on a regular and systematic basis, and had a reasonable expectation of continuing employment by the employer on a regular and systematic basis can be counted, even if they are separated by other periods of service during which the casual employee is not employed in this way. This is of course only if the period of service is not broken by the employer or the employee making it clear to the other party, by words or actions, that there will be no further engagements[7].
[39] An approach set out by the ACT Court of Appeal in Yaraka Holdings Pty Ltd v Giljevic[8] is appropriate to apply to the question of what is a "regular casual employee" within the meaning of s 12 of the Act[9]. The approach confirms what is now well established: that it is the "engagement" which must be regular and systematic, not the hours worked pursuant to such an engagement. This does not mean the hours worked by the employee are not relevant at all - they are one of a number of relevant considerations in the analysis[10]. Several key principles can be gleaned from the authorities:
1. The term "regular" should be construed liberally. It is not a synonym for words such as "uniform" or "constant".
2. "Regularity" may be constituted by frequent though unpredictable engagements although "systematic" need not involve either predictability of engagements or any assurance of work at all.
3. Engagement under contracts on a "systematic basis" implies something more than regularity. The basis of engagement must exhibit something that can fairly be called a system, method or plan.
[40] A "reasonable expectation of continuing employment on a regular and systematic basis" requires that the employee has subjectively formed an expectation of continuing employment by the employer on a regular and systematic basis, and that the expectation is reasonable[11]. If that expectation has been formed, it is necessary to assess whether it is a reasonable one. While this imports an objective standard, it does not limit the matters that may be taken into account in determining whether the expectation is reasonable[12].
[41] It did not appear to be contended before me that Mrs Chamma's "service" is not continuous between the period November 2016 and June 2025. Retailors' conduct, particularly in the first half of 2025, is that of an employer who considered Mrs Chamma to be its employee - shown by its ongoing communication with her, its efforts to have her attend team meetings and shifts of work and ultimately, its formal notice of termination of employment. Mrs Chamma's conduct similarly suggests an ongoing and continuing employment relationship taking into account the nature of her engagement - displayed in particular by her consistent indication of availability for work through the website. There was no evidence before me that either party made it clear to the other, by words or actions, that there would be no further engagements, until Retailors sent Mrs Chamma the notice that her employment was terminated.
[42] The nature of the engagement, as I have observed, involves the allocation of shifts of work in a manner that is likely to be random. During most of Mrs Chamma's employment however, this still gave rise to an allocation of work that I consider to be "frequent", if not "regular". On the evidence before me, throughout all of 2016 through to 2022 Mrs Chamma worked monthly, if not weekly, save for the interruption of COVID-19.
[43] During this period, and beyond, Mrs Chamma also had a reasonable expectation of continuing employment on the basis of the nature of her engagement. At least during 2016 - 2018, but likely also during 2019 - 2023 (taking into account the impact of COVID-19) this expectation of continuing employment was on the basis of an engagement which involved frequent, if not regular allocation of work.
[44] While things became more random in 2023, by this time, Mrs Chamma had completed periods of employment as a regular casual with reasonable expectation of continuing employment on a regular and systematic basis of significantly more than six months, during 2016 - 2019 in particular, and also during 2020 - 2022.
[45] While it may be counterintuitive that a casual employee who has only worked two shifts in eighteen months can be said to have completed the minimum employment period as a "regular" casual", I find Mrs Chamma did so during the early years of her employment and her employment continued until it was terminated. She is thus a person protected from unfair dismissal within the meaning of ss 382 and 383 of the Act.

[46] Section 394 of the FW Act requires that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. A further period of time may be allowed, but only if the Commission is satisfied that there are "exceptional circumstances". 
[47] Mrs Chamma's unfair dismissal application should have been filed within 21 days of 25 June 2025, or before midnight, 16 July 2025. It was filed on 4 August 2025 and is 19 days late.
[48] To determine whether "exceptional circumstances" exist warranting a further period for the application to be made (an "extension of time") the Act requires that I must give several factors consideration, evaluating and giving each of them due weight[13]. The factors are: 
1. the reason for the delay; and  
2. whether Mrs Chamma first became aware of the dismissal after it had taken effect; and
3. any action taken by Mrs Chamma to dispute the dismissal; and
4. prejudice to the employer (including prejudice caused by the delay); and  
5. the merits of the application; and  
6. fairness as between Mrs Chamma and other persons in a similar position.
[49] A Full Bench of this Commission recently said:

"The process of decision-making under s.394(3) has two distinct elements, both discretionary in nature. Firstly, the Commission must determine whether a state of satisfaction can be reached as to the existence of exceptional circumstances, taking into account the matters specified in paragraphs - (f) of the subsection. Secondly, if the Commission is satisfied as to the existence of exceptional circumstances, the residual discretion to extend time (signified by the use of the word 'may') is enlivened. Satisfaction as to the existence of exceptional circumstances does not necessarily mean that an extension of time will be granted, and the Commission may decide not to exercise the residual discretion to extend time on the basis that it is not satisfied that it is just, fair or equitable to do so, notwithstanding the finding of exceptional circumstances."[14]

[50] The test of exceptional circumstances in relation to extensions of time to lodge applications under s 394(3) establishes a "high hurdle" for an application for an extension[15]. 
[51] "The delay" is the period commencing immediately after the date upon which the application should have been filed, continuing until the date it was. However, events or circumstances occurring within the 21 days after the dismissal, or before the dismissal may have an effect that continues into the period of the delay and may be considered in this regard[16]. In this matter, the delay is the 19 day period between midnight 16 July 2025 and 4 August 2025.

[52] As to the reason for the delay, Mrs Chamma does not need to provide a reason for the entire period of the delay, but the Commission will usually focus its enquiry on whether the reason for the delay is "adequate", or "credible" or "acceptable", and the absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances[17]. The reason for the delay need not necessarily be one that "justifies" the delay, but the allowance of further time is discretionary, taking into account whether exceptional circumstances exist, and it is in this context that the assessment is made[18].
[53] Mrs Chamma's reason for delay was that her employment was terminated by email, abruptly, while she was overseas and did not have access to a stable means by which to file a legal application on the Commission. When she returned from overseas on Thursday 31 July 2025, she filed her application in the Commission four days later, on Monday 4 August 2025. The reason for this further delay was, in addition to the fact that she had only just returned from overseas, she had to establish stable communication, recover from illness (a bad cold), she sought advice and familiarised herself with her workplace rights.
[54] On the evidence before me, I consider Mrs Chamma had a credible reason for the delay in filing her application. There is little before me about the precise circumstances Mrs Chamma was dealing with while overseas, save that she only had her mobile phone with which to communicate, demonstrated by the three very brief email replies she sent Retailors. However her evidence is unchallenged, and I accept she would have experienced a level of impediment using this method of communication for the somewhat more involved process of completing an on-line Commission application. I also consider she acted in a reasonable manner when she returned to Australia. While delay to seek advice is generally not an exceptional circumstance[19], having just returned from overseas, Mrs Chamma acted reasonably diligently in taking the steps she took to file her application on return.

Whether Mrs Chamma first became aware of the dismissal after it had taken effect

[55] Mrs Chamma became aware of the dismissal when it took effect - on 25 June 2025. However, I do not consider that this weighs against a finding that exceptional circumstances exists in this matter because in these particular circumstances, Mrs Chamma became aware of the dismissal while she was overseas and had limited communication.

Any action taken by Mrs Chamma to dispute the dismissal.

[56] Mrs Chamma sent a very brief email in response to the notification she received hat her employment was terminated. As has been mentioned, this response was sent in circumstances where Mrs Chamma's ability to communicate was apparently limited. The response protests that her managers should have been aware she was going overseas and would not be available for shifts, that she had mentioned this, and that her availability on the website was shown as such. It makes a brief reference to a report to "Fair Work". This communication is brief and perfunctory. There is no other evidence that Mrs Chamma did anything to dispute the dismissal. While Mrs Chamma was limited for most of the relevant period in her ability to effectively communicate, there is nevertheless some small weight therefore against a finding of exceptional circumstances arising from consideration of this factor.

Prejudice to the employer (including prejudice caused by the delay)

[57] Retailors did not draw my attention to any particular prejudice to it including prejudice caused by the delay. If this matter is to proceed it will revolve around whether Retailors' decision to terminate Mrs Chamma's employment on 25 June 2025 was harsh, unjust or unreasonable. The delay in filing the application outside the 21 day time period will not, in this matter, prejudice Retailors from attempting to defend against that proposition - the factual matrix is largely uncontested.

[58] It is well established that the Commission will not ordinarily embark on a detailed consideration of the merits of the substantive case when considering whether to grant an extension of time[20]. In this matter, I have not yet had the benefit of Retailors' explanation as to why it felt compelled to end Mrs Chamma's employment at the particular time it did, in the unusual circumstances where their employee had only worked two shifts in the last eighteen months anyway. The circumstances seem on their face to be somewhat harsh - the termination occurred while Retailors knew Mrs Chamma was overseas; through a brief and cursory email communication; without Mrs Chamma having had a chance to address Retailors on whatever was motivating it to act in the manner it did at that time. However, without Retailors explanation for this, I can only consider the merits of this application to be a neutral factor.

Fairness as between Mrs Chamma and other persons in a similar position

[59] I was not taken to any example of fairness as between Mrs Chamma and other persons in a similar position. I consider this to be a neutral factor.

[60] Having considered each of the factors set out in s 394(3) of the Act I have reached a state of satisfaction as to the existence of exceptional circumstances, particularly because I consider there is an adequate reason for Mrs Chamma's delay in filing the application. I also consider it is just, fair and equitable to exercise my discretion to extend time and do so for the purposes of this application.

[61] On the basis that I consider Mrs Chamma has completed the minimum employment period, and that the time for her application should be extended, the objections to her application are dismissed. An Order[21] will be issued conjointly.
[62] Directions for the further conduct of this matter will issue shortly.

[7] Wayne Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709 [12] - [13]

[9] WorkPac Pty Ltd v Skene [2018] FCAFC 131; Chandler v Bed Bath N' Table Pty Ltd [2020] FWCFB 306 [13]

[10] Chandler v Bed Bath N' Table Pty Ltd [2020] FWCFB 306 [14]; Bronze Hospitality Pty Ltd v Janell Hansson [2019] FWCFB 1099 [24]

[11] Bronze Hospitality Pty Ltd v Hansson (No 2) [2019] FCA 1680 [40]

[13] Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901

[14] Ms Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 [61]

[15] Abu Murad v Command51 Services Pty Limited [2024] FWCFB 307 [26]

[16] Olivia Wales v Thejo Australia Pty Ltd [2025] FWCFB 178 [36]

[17] Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 [45].

[18] Kuncho Kurtev v KCB Australia Pty Ltd, Toni Telfer [2025] FWCFB 13 [21]

[19] Leonie Richardson v Happy Peeps Pty Ltd [2024] FWC 3533 [15]; Deewan v BCentral Constructions Pty Ltd T/A BCentral [2019] FWC 5009 [25]

[20] Ms Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 [38]

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Mrs Sarah Chamma v [2025] FWC 2501

At a glance

Court

Decision date

Source

Judgment (44 paragraphs)

Mrs Sarah Chamma v [2025] FWC 2501 (2 September 2025)

Parties

Legislation Cited (1)