Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application - dispute about dismissal date - whether an extension of time required - application filed within 21 days - no extension of time required.

• [1] Step Up Disability Services (Step Up) provides disability support services. Muaz Khan commenced part-time employment with Step Up in the position of Assistant Mentor on 3 January 2023. A dispute arose between Muaz Khan's father, Zaffar Khan, and Step Up in August 2024 regarding a new service agreement relating to participation in the National Disability Insurance Scheme (NDIS). After various communications where Step Up was indicating Muaz Khan needed to sign a new service agreement if he wished to continue with his employment, the dispute came to a head on 30 August 2024. At 2:49pm on 30 August 2024, Step Up sent an email to Zaffar Khan which referred to Muaz Khan failing to sign the new service agreement and then stated that it "will be Muaz's last day with Step Up." However, at 4:32pm on 30 August 2024, Step Up sent a further email to Zaffar Khan which stated: "Please understand that Muaz's services with us (Young Adults Program and Employment Support) will still be paused from 1/9/24 until further notice and when we are able to resolve the issue." Muaz Khan filed an unfair dismissal application on 22 September 2024. On 18 October 2024, Step Up filed a Form F3 response which raised a jurisdictional objection to the unfair dismissal application on the basis that it was not filed within 21 days of the dismissal taking effect on 30 August 2024. That argument means the dismissal date needs to be initially identified because that will determine whether Muaz Khan requires an extension of time be granted to file his application.

• [2] Directions were issued for the filing of material and a determinative conference was held via video on 28 November 2024. Zaffar Khan represented his son, Muaz Khan, and Amy Lee (Operations Manager) represented Step Up. At the end of the determinative conference, Ms Lee indicated Step Up was conceding Muaz Khan's dismissal took effect on 1 September 2024 and that an extension of time was not required.

• [3] I find that Muaz Khan was dismissed on 1 September 2024. I make this finding based on Ms Lee's concession and because the last email sent by Step Up to Zaffar Khan on 30 August 2024 clearly stated Muaz Khan's employment will be paused "from 1 September 2024."

• [4] I find Step Up dismissed Muaz Khan on 1 September 2024 and that the unfair dismissal application filed on 22 September 2024 was filed within 21 days of the dismissal taking effect. Muaz Khan does not need an extension of time to file his application.

• [5] I dismiss Step Up's jurisdictional objection. Muaz Khan's unfair dismissal application will proceed to be determined in accordance with the Commission's standard processes.

Printed by authority of the Commonwealth Government Printer