Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdictional hearing - was there a dismissal - when did dismissal occur - application for extension of time - no dismissal found - application dismissed.

• [1] This is an edited version of a decision delivered ex tempore on 13 August 2025.

• [2] This decision relates to an application by Ms Chelsea Holyoak (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant alleges she has been unfairly dismissed from her employment with Westgate Cybernetics Pty Ltd (the Respondent).

• [3] The Applicant commenced work for the Respondent on 21 April 2015 in the role of reception/administrations officer. The Applicant commenced a period of maternity leave following the birth of her child in approximately August 2024.

• [4] At the time of taking maternity leave, the Applicant and Respondent did not agree on a date for the Applicant to return to work.

• [5] Following the Applicant going on maternity leave the Applicant experienced a range of personal, health and other issues which led to a break down in work and family relationships. As a result of these issues the Applicant has not been able to return to work. The Applicant gave evidence that at the date of the hearing there continued to be a range of health and personal issues that would mean returning to work at this stage would be difficult and not something she wished to do.

• [6] The Applicant alleges that the Respondent dismissed her without notice, around the end of February 2025. The Applicant claims she was unaware of her dismissal until she saw a statement from the Australian Tax Office in June 2025. The Applicant claims she still has outstanding leave entitlements.

• [7] The Respondent denies terminating the Applicant, and states that the Applicant's role is there for her when she is fit to return. The Respondent claims they have paid out all current leave entitlements.

• [8] There are several threshold jurisdictional issues that must be considered prior to this application being able to proceed.

• [9] First, has the Applicant been dismissed? Only a person who has been dismissed can make an application for an unfair dismissal remedy. If it is found there was no dismissal the Applicant does not have grounds for an unfair dismissal application.

• [10] Second, if there was a dismissal, when did it occur and was the application made within the 21 day time frame required under s 394(2) of the Act?

• [11] Only a person who has been dismissed may make an application for an unfair dismissal remedy under s 394 of the Act.

Section 386 of the Act provides the meaning of dismissed as follows:

1. The person's employment with his or her employer has been terminated on the employer's initiative; or
2. 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.

In this matter the Applicant argues that she has been dismissed under s 386(1)(a) - at the initiative of the employer.

• [12] The Applicant submits she was dismissed either:
  • - in a phone conversation with the general manager of the Respondent on 21 February 2025; or alternatively,
  • - when the Australian Taxation Office (ATO) was informed her employment period ended on 28 February 2025. In support to this submission the Applicant has tendered her income statement from the ATO which records her employment period for the financial year 2024/2025 with the Respondent as being from 1 July 2024 to 28 February 2025.

• [13] In response, the Respondent denies dismissing the Applicant and states that the Applicant's role remains open to her when she is fit and able to return to work.

• [14] I do not accept that the Applicant was terminated in a phone conversation on 21 February 2025. The general manager gave evidence that he has never terminated the Applicant's employment, in a phone conversation on 21 February 2025 or otherwise. The general manager also gave evidence that the Applicant's position remains for her to return to. The Applicant's own evidence is that, despite the phone conversation on 21 February 2025, she was unsure if she had been terminated in that phone conversation.

• [15] In addition, a director of the Respondent provided evidence that in March or April the director had a conversation with the Applicant, stating the Applicant could return to work when ever she was fit and ready. While the Applicant could not recall this conversation, the Applicant conceded that this conversation might have happened. I accept the director's evidence that this conversation occurred.

• [16] In regard to the ATO statement for the financial year 2024/2025 - I accept the evidence of the Respondent's payroll manager, that he made the Applicant inactive in the payroll system in February 2025 so she would stop receiving payslips while she was not at work, this is reflected in the ATO documents filed. I also accept the Respondent's evidence that the Respondent has not notified the ATO that the Applicant was terminated.

• [17] The Respondent has provided evidence, which I accept, that the Applicant's position remains there for her when she is fit and able to return.

• [18] Based on the above evidence, I cannot find that the Applicant's employment has been terminated at the initiative of the employer, as I can find no action that constitutes a dismissal. Accordingly, I find that the Applicant has not been dismissed.

• [19] In my view the Applicant remains on a period of unpaid leave. It has been made clear that once she is fit and able to return to work, a position will be there for her.

• [20] If I am wrong, and the employment relationships has been severed, I find that this is because the Applicant has effectively abandoned her employment, not because she has been dismissed.

• [21] With no dismissal found, an unfair dismissal application cannot precede.

• [22] For completeness I note that even if there had been a dismissal in late February 2025, I would have been unlikely to find that there were exceptional circumstances to warrant an extension of time for an application that was approximately 120 days late. I understand that it has been an extremely difficult year for the Applicant personally, including periods of severe financial hardship and issues with mental health. However, there was not enough evidence before me to be satisfied that the Applicant was not able to file an unfair dismissal application for the entire delay period. Furthermore, I am of the view that the merits of the application, even based on the preliminary submissions before me, are not strong and weigh against a finding of exceptional circumstances to warrant an extension of time.

• [23] Finally, I note that the Applicant claims she has outstanding leave entitlements. The Respondent claims to have paid all outstanding leave entitlements and relied on payslips and banking receipts to support its position. Outstanding entitlements are outside of the unfair dismissal jurisdiction, and I do not make a finding either way in relation to this matter.

• [24] In conclusion, as I have found that there was no dismissal, the Applicant has no basis to bring an application for unfair dismissal remedy and the application fails for want of jurisdiction. The application for unfair dismissal remedy in this matter is dismissed.

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