s.365 - Application to deal with contraventions involving dismissal

Wilson Parking Australia 1992 Pty Ltd, Mr Cuong Chi

Application made under s.36 - extension of time - application dismissed

• [1] Ms Halimeh Elakkoumi has made an application under s.365 of the Fair Work Act 2009 (Act) in which she alleges that she was dismissed by Wilson Parking Australia 1992 Pty Ltd (Respondent) in contravention of Part 3-1 of the Act. Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2). The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in s.366(2)(a) to (e).

• [2] There was a dispute about when the dismissal of Ms Elakkoumi took effect. The Respondent made the submission that latest date upon which it took effect was on 5 March 2025 when its payroll officer sent an email to Ms Elakkoumi with the 'subject line' of "Final Payslip" and the advice "Please find attached your final payslip", together with a payslip which included the references "Term $ Long Service" and "Term Tax Post 8/93." If this is accepted, the 21-day period ended at midnight on Wednesday 26 March 2025 and the application, having been lodged on 8 August 2025, was made 134 days late.

• [3] Ms Elakkoumi submits that the Commission must determine whether her application was in fact lodged late at all, arguing that the Respondent's 5 March 2025 email did not terminate her employment. Ms Elakkoumi asserts that the only notification of her termination was communicated in an email she received from the Respondent on 4 August 2025, which stated:

"... As part of a recent review of our casual workforce, we've noticed that you haven't worked any shifts with Wilson for a significant period. As there's currently no ongoing work arrangement in place, your access to our work systems is no longer required at this time.

If you're looking to return to work with Wilson and are interested in a regular pattern of shifts, we encourage you to apply for any suitable roles currently advertised...

Thank you for your time with Wilson to date..."

• [4] While Ms Elakkoumi submits that no extension of time is required because her application filed on 8 August 2025 was made within 21 days after her dismissal took effect on 4 August 2025, she also addressed the 5 March 2025 email sent by the Respondent. Ms Elakkoumi said that she had taken long service leave in the latter part of 2024 and within that context, she understood the references in the 5 March 2025 email to the "Final Payslip" and the various payslip references to be references to the 'final payment' of her long service leave. I am not persuaded by this explanation. I consider the text and advice within the 5 March 2025 email and payslip was expressed in clear terms which were unequivocal in conveying to Ms Elakkoumi that she was being sent the final payslip in respect of her employment and was being terminated. I do not consider the wording used by the Respondent credibly supports any other explanation. I therefore prefer the Respondent's contention and am satisfied that there was a 134-day period of delay in this case.

• [5] The wording in s.366(2)(a) of the Act does not specify what reason for delay might tell in favour of granting an extension but decisions of the Commission have referred to 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 an applicant's favour, however all the circumstances must be considered.1 In this case, I consider Ms Elakkoumi's explanations that the wording of the 5 March 2025 did not convey that her employment was terminated and that she thought she was being paid her final long service leave payment on 5 March 2025 to be neither acceptable, reasonable nor credible. This is because apart from what the wording in the 5 March 2025 email and payslip conveyed, Ms Elakkoumi had also been advised by the Respondent at the conclusion of her long service leave in late 2024 that there were no available shifts for her and she was in fact thereafter only offered a scant number of shifts until February 2025. I further note that after 5 March 2025 email, Ms Elakkoumi was not offered any shifts at all and that the Respondent's email dated 4 August 2025 was sent in response to several enquiries made by Ms Elakkoumi, to which I make reference below. In my assessment, the reasons for the delay in this case weigh against a conclusion that there are exceptional circumstances.

• [6] As to the other mandatory considerations, Ms Elakkoumi sent three emails to the Respondent after 5 March 2025 enquiring as to the availability of shifts (s.366(2)(b)). I consider these to be akin to action disputing the dismissal and that this factor weighs slightly in favour of an extension. Notwithstanding the delay in this case, I do not consider there to be any prejudice to the Respondent (s.366(2)(c)) and nor do I consider that there are any matters that are relevant to fairness between Ms Elakkoumi and other persons in a like position (s.366(2)(e)), save that I have noted the Respondent's submission that other casual employees were terminated by the Respondent during the period in which Ms Elakkoumi was sent the 5 March 2025 email. I therefore consider the s.366(2)(c) and s.366(2)(e) factors to be neutral.

• [7] As to the merits (s.366(2)(d)), Ms Elakkoumi contends that she was dismissed because she took long service leave, whereas the Respondent asserted that the reduction in the allocation of shifts was based on business requirements, that the needs of the business were changing and that the shifts on offer had been reducing prior to the commencement of Ms Elakkoumi's long service leave in late 2024. The weight to be given to the merits is dependent on the extent to which there is merit in the substantive application2 and the parties would need the opportunity to fulsomely present their respective cases. The merits of the application of Ms Elakkoumi and the Respondent's foreshadowed defence turn on contested points of fact that would need to be tested, including under cross-examination if an extension of time were granted and the matter was to proceed. Ultimately, they would depend on findings made by a court after hearing the evidence. As I am not able to make any firm assessment of the merits at this stage, I do not consider they tell for or against an extension of time and therefore have concluded they are a neutral consideration.

• [8] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s.366(2), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. Therefore, Ms Elakkoumi's application is dismissed.

G Simmonds for Wilson Parking Australia 1992 Pty Ltd.

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