s.365 - General protections

Application to deal with contraventions involving dismissal - application filed out of time - circumstances not exceptional - application dismissed

• [1] Mr Parie Malhotra (Applicant) made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) alleging she was dismissed in contravention of the general protections provisions in Part 3-1 of the Act. Novo Shoes Group Pty Ltd (First Respondent) and Ms Darveen Sandhu (Second Respondent) (collectively Respondents) are the Respondents to the application.

• [2] Section 366(1) of the Act provides that an application under s.365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows under s.366(2) of the Act.

Submissions, hearing, permission to appear and witnesses

• [3] The Respondent filed submissions in the Commission on 17 March 2025. The Applicant filed submissions in the Commission on 24 March 2025.

• [5] The Respondents in this matter sought to be represented by the same representative. I determined that allowing the Respondents to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, particularly as the Respondents would be represented by the one person who would be making submissions for both parties, saving duplication.

• [6] Accordingly, at the hearing on 8 April 2025, the Respondents were represented by a lawyer, Mr Llewellyn.

• [7] The Applicant filed a witness statement on 24 March 2025 and gave evidence on her own behalf during the hearing.

• [8] The Applicant submits that the dismissal took effect on 3 January 2025.[1] While she was provided with a separation certificate which stated that the date of termination of employment was 22 December 2024, the Applicant's evidence was that she did not receive the separation certificate until 3 January 2025 and was not informed of her dismissal until this date. There is no evidence that any communication was had with the Applicant about the termination of her employment earlier.

• [9] I find that the dismissal took effect on 3 January 2025.

• [10] It is not in dispute, and I so find, that the application was made on 3 February 2025.

Was the Application made within 21 days after the dismissal took effect?

• [11] As I found above, the dismissal took effect on 3 January 2025. The final day of the 21 day period was therefore 24 January 2025 and ended at midnight on that day. As I found above, the application was made on 3 February 2025 and as such the application has not been made within 21 days after the dismissal took effect.

Was the application made within such further period as the Commission allows?

• [12] Section 366(2) of the Act provides that the Commission may allow a further period if it is satisfied that there are exceptional circumstances taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness between the person and other persons in a like position.

Section 366(2)(a) - the reason for the delay

• [13] The Applicant submitted that her application was made late because:

• she is not an Australian citizen, was new to Australia and was not aware that she had protections available to her and only became aware that she was eligible to put in a claim after speaking to a solicitor and by that time the 21 day period had lapsed; and

• • after her dismissal, she had been trying to seek clarification from her employer as the decision had come as a surprise to her, however this provided to be a fruitless endeavour resulting in her seeking legal advice;[2]
• • after spending about a month trying to get clarity regarding the termination of her employment from the First Respondent and not being successful, she made her application to the Commission.[3]

• [14] The Applicant's evidence was that she attempted to get answers and information about the termination of her employment from 3 January 2025 until 3 February 2025 but the Respondent refused to give her much information in writing.

• [15] The Applicant filed a copy of emails which suggest that:

• on 3 January 2025 the Applicant emailed payroll stating that the separation certificate had come as a surprise to her and enquiring as to the reason why her employment was terminated;
• on 7 January 2025 the Applicant followed up, again enquiring as to the reason why her employment was terminated;
• on 7 January 2025 the payroll officer told the Applicant to check with her Area Manager.

• [16] On 7 January 2025 in a text message to the Applicant the Second Respondent indicated that the decision to dismiss her was a "business decision to end [the Applicant's probationary period].

• [17] The Applicant filed a copy of an email dated 15 January 2025 to the payroll officer in which she states:

I've spoken to Darveen about the above. I would like some clarity around payroll though.

Could you please send through all the payslips from my time at Shoe Connection as I appear to no longer have access myself?

Additionally, please explain how the final pay calculation was done (including dates calculated between, hours paid out, accrued leave balance, ect).

Furthermore, could you lease either provide me with a completed Centrelink separation certificate or a letter on the business letterhead stating the date of termination, leave amount and period paid at termination, final payment amount, money owed by the employer and reason for ending employment? These are details I require to submit a claim to Centrelink.

Lastly, could you please give me the details about the super fund you enrolled me into through my employment?'

• [18] The payroll officer appears to have responded that same day attaching payslips and stating "Separation certificate with all information for Centrelink was sent to you on 3/1/25..."

• [19] It appears that the Applicant has then had a conversation with a person called 'Zora' which prompted her to send an email on 16 January 2025:

• thanking Zora for taking the time to talk to her after hours regarding the termination of her employment;
• attaching screenshots of texts between the Applicant and Second Respondent regarding her onboarding ad pre-booked holiday;
• stating that she did not go through a proper interview process and got the job by getting the Second Respondent's number from a mutual contact;
• stating that she had an introductory call with the Second Respondent on 25 November 2024 that lasted for less than five minutes and ended with the Second Respondent telling the Applicant she would get back to her with shift availability;
• stating that on 28 November 2024 the Second Respondent texted the Applicant stating what shifts she could offer and what personal details were needed to set her up in the system;
• stating that at no point during the process was she asked about planned leave or informed about a blackout period;
• stating that she was sent her contract at 9pm prior to her date, had barely 12 hours to review it and had no time to get advice on it "effectively forcing [her] to sign it under duress";
• stating that during her review of the paperwork she saw the blackout period memo but it was too late to contact anyone;
• stating that when she met the Second Respondent during her first shift:
  • she told her about the pre-booked holiday that fell during the blackout period;
  • the Second Respondent apologised for not asking her about he leave plans before hiring her and reassured her she would "sort it out";
  • the Applicant explained that if she was able to swap shifts for that week, she would be happy to take on extra shifts in the weeks before and after her week of unavailability;
• stating that in following weeks she was given extra shifts and the Second Respondent acknowledged that this was because the Applicant had stated her availability to work more prior to her holiday and the Second Respondent was aware of her upcoming holiday;
• stating that she did not ask to take leave but simply asked to swap shifts with someone else for the week during which she was unavailable;
• stating that she asked for shifts from 30 December onwards but was not allocated any;
• stating that upon seeing her roster for the week of 30 December blank, she queried this with the Second Respondent but got no response;
• stating that at no point was it made clear to her that her employment was being terminated.

• [20] The Applicant sent a follow up email to Zora on 19 January 2025, not having heard back.

• [21] On 20 January 2025 Zora responded to the Applicant asking her to advise her of a time that she could call the Applicant. The Applicant responded stating:

I've got a very busy schedule today so won't have time to take a call. Please email me the information you would have provided me over the phone.

If there are any further questions or clarifications, we can find a time to talk about it".

On 20 January 2025, later that day, Zora emailed the Applicant attaching a "formal response relating to [her] employment as (sic) Novo Shoes Group".

• [22] A letter from the Respondent dated 20 January 2025 states:

"Thank you for taking the time to raise your concerns regarding your experience working at Novo Shoes Group. It's something we take very seriously.

I can confirm that a full investigation was conducted and the appropriate action has taken place where our policies and procedures have not been followed.

I would like to thank you for taking the time to share your experience.

On behalf of Novo Shoes, we wish you all the best for the future."

• On 20 January 2025 the Applicant responded via email stating "Is this what you were wanting to tell me over a phone call?"
• On 22 January 2025 Zora emailed the Applicant advising that three weeks' notice would be paid to her that day.
• On 22 January 2025 Zora emailed the Applicant a play slip.
• On 29 January 2025 the Applicant emailed Zora stating "Touching base regarding a response for this email as I am still waiting to hear back from you."
• On 29 January 2025 Zora responded stating "Please let me know when you available to call you".
• On 30 January 2025 the Applicant responded stating "I've only just freed up today and tomorrow is even busier than today was so we can either schedule a call for this weekend or then next week."
• On 31 January 2025 Zora emailed the Applicant informing her she would be on annual leave the following week.
• On 31 January 2025 the Applicant emailed Zora stating "Since I am available next week but you're away, it seems like we aren't able to find a time to have a call. As such, please email through the details which you were going to tell me over the phone call."
• On 3 February 2025 Zora emailed the Applicant stating "Responding to the below we can schedule a call next week".
• On 3 February 2025 the Applicant responded stating "Noting that in another email thread, you mentioned you are on annual leave this week so unavailable to call. As such, in the interest of time, could you please email the information you would be providing me over the phone?"

• [24] It is apparent that the Applicant did not find the Second Respondent's explanation provided on 7 January 2025 in that the decision to dismiss her was "business decision to end [the Applicant's] probationary period" was acceptable to the Applicant and she was seeking that the Respondents provide written reasons for their decision. It is apparent that the Applicant made multiple attempts to get the Respondents to do this. It is common that parties in unfair dismissal cases may not have all of the facts on hand at the time of making their decision to file an application or may not be satisfied with or believe an explanation given to them. In the case of the Applicant, I do not consider that the lack of detail in the explanation provided to her prevented an application being made, particularly in circumstances where her correspondence with Zora on 16 January 2025 suggests that she at least had a hunch that her dismissal was in some way related to her not being able to work during the period of her holiday. It seems more likely that the Applicant was trying to get reasons in writing from her employer and, as put forward in her application, sought legal advice and at that time learned that the 21 day period had lapsed.

Section 366(b) - any action taken by the person to dispute the dismissal

• she emailed the person who had sent her the separation certificate asking about why her employment was terminated;
• she was bounced around multiple people, none of whom gave her clear answers;

• • she kept following up with different people, hoping for an answer but "got nothing of value".[4]

• [26] While the Applicant did not expressly dispute her dismissal, it apparent from the above that the Applicant did not consider the explanation provided by the Second Respondent to be adequate, was seeking to understand the reasons for her dismissal and wanted the Respondents to put these to her in writing and made repeated requests for them to do so. In the email send to Zora on 16 January 2025, it can be inferred that the Applicant had formed a belief that her dismissal was in some way related to her period of unavailability and she appears to be pleading her case in relation to this. In doing so, I find that she was, in effect, disputing her dismissal.

Section 366(c) - prejudice to the employer (including prejudice caused by the delay)

• [27] No party identified any prejudice, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.

Section 366(d) - the merits of the application

• [28] It is not in dispute that the Applicant commenced employment with the Respondent on 4 December 2024.[5]

• The Applicant applied for a job at Shoe Connection, a subsidiary of the First Respondent, prior to 24 November 2024;
• On 5 November 2024 the Applicant was contacted by the Second Respondent, the State Manager of the First Respondent and a short interview was conducted.
• On 28 November 2024 the Second Respondent contacted the Applicant discussing available shifts and personal details so the Applicant could be set up in the system.
• Pre-commencement paperwork was provided to the Applicant on 2 December 2024.
• The Applicant's employment contract requires staff to be available for work during the period between 24 November 2024 and 4 January 2025.
• The Applicant provided the signed paperwork on 3 December 2024 and was subject to a probationary period ending on 4 June 2025.
• After the Applicant commenced employment, she advised the store manager that she had holidays booked between 23 and 30 December 2024 and would be unavailable for work during that period.
• The Applicant failed to disclose a material matter at the initial interview and prior to the Commencement of her employment.

• [30] In her application the Applicant submitted:

• she believed she was dismissed because she took leave during a "blackout period" that she was unaware of;
• at no point during the recruitment process was she asked about planned leave or informed about a "blackout period";
• she was sent her contract at approximately 9pm the night prior to her commencement and had barely 12 hours to review and sign her contract prior to her first shift;
• during this late night review she saw a "blackout period memo" but it was too late to contact anyone at that time of the night;
• the following morning she met the Second Respondent during her first shift and told her about the holiday she had pre-booked which fell during the blackout period;
• the Second Respondent apologised for not asking about the Applicant's leave plans prior to hiring her and said she would "sort it out";
• the Applicant explained to the Second Respondent that whilst she would be unavailable from 23 to 30 December, she would be happy to take on extra shifts in the weeks prior to and after her holiday;
• the Applicant was given extra shifts and her last rostered shift was 22 December 2024;
• upon her return from holiday on 30 December the Applicant saw there were no shifts rostered for her and queried this with the Second Respondent but did not receive a response;
• on 3 January 2025 the Applicant received an email from the payroll department with a separation certificate but no further explanation;
• the date of the termination of the Applicant's employment was recorded as 22 December 2024 on the separation certificate, being the last day the Applicant worked;
• the reason for the termination of employment was listed as "other" on the separation certificate;
• the Applicant believed she was dismissed due to her being on holiday during a blackout period, that she was not informed about during her recruitment process, where all staff were expected to be available and working as needed.

• [31] The Applicant filed a copy of a text message in which she states:

"Hi Darveen, its Parie here. Nav gave me your number. Please give me a call when you have a moment. Kind regards, Parie :)"

• [32] A subsequent message from the Second Respondent to the Applicant dated 28 November states:

So I have Sunday cover shift Monday cover shift and Friday cover shifts

It's not a lot now but we can train you up and if novo needs help you can also help around if needed?

• [33] The Applicant provided these details and on 2 December sent a follow up text stating:

"Hi Darveen, hope you had a nice weekend. Just touching base to see if there is any update on your end of if you need something more from me?

I realised this weekend was black friday so totally understand that you would have been crazy busy!!"

• [34] On 3 December the Second Respondent replied stating:

So sorry for the delay! Yes unfortunately I was slightly unwell too I do apologse

I have sent out last night and have your training day as Wednesday is that all ok"

• [35] The Applicant then responded stating:

"Aw hope you're feeling better! Yes that's fine. I'll go through the paperwork this morning and reach out if I have any questions :)

I've gone through the portal and done everything I thigh I was meant to do. Couple quick questions - am I meat to be doing shifts every week or every second week? There is a slight confusion on my agreed hours contract. Also, where do I find my full employment contract? I only found the page that told me about hours per fortnight"

• [36] The Applicant filed a copy of a text message sent to the Second Respondent on 20 December 2024 in which she states:

"Hi Darveen, I tried to put my unavailability on to Ento to make things easier for you but it wouldn't let me so just to let you know I can work this Sunday but am away from Monday 23rd AM to Monday 30th AM. Can work 31st onwards as normal and pick up extra shifts where needed/my availability allows. Monday 30th if you really needed, i could probably work 1pm onwards as I land at 10am that morning :)"

• [37] The Applicant filed a copy of another text message sent to the Second Respondent on 28 December 2024 in which she states:

"Hey Darveen, just letting you know I havent (sic) received a roster for next week yet. Will that be coming soon. I'm back in Sydney day after tomorrow. Merry Xmas and HNY ��"

• [38] The Applicant also filed a copy of a text message sent to her from the Second Respondent which states:

I have spoken to Same and she did inform you prior to your leave

Maybe if there is any confusion I can get her to contact you via a phone call?

• [39] On 7 January the Applicant texted the Second Respondent stating:

"Hi Darveen, Sam had mentioned on a phone call during my shift (while I was still co-responsible for monitoring the shop floor) that due to Blackout period, the system would not allow her to put in leave or assign more shifts.

However, at no point during that phone call was there any mention of terminating my contact. It simply seemed like she was telling me about her struggles with a system issues. I am happy for her or you to contact me but not via phone call, my preferred method of communication is texts or email at the moment as I'm sick and barely able to speak.

As mentioned in my email, I'm still not clear on what the exact reason for my dismissal is, so if you could let me know what that it, that would be appreciated."

"Not sure where the confusion was but it was just a business decision to end your probationary period

Do apologise if there was any confusion during those period

"Thanks for your wishes. Could you please help me understand what the business decision was based on? I'm still not clear on the exact reason for my dismissal"

• [42] The communication between the Respondents and Applicant has been poor at numerous intervals. The First Respondent is a retailer and it is likely that the First Respondent employed the Applicant in December in anticipation that she would be available to work over the busy Christmas period. However, the Second Respondent's approach to communicating expectations around this was poor and I accept that the Applicant did not learn of this expectation until the day before her first shift. However, on the other hand the Applicant did not disclose that she had a holiday planned a short time after she was to commence employment and her communication was equally poor. It seems likely that this led to a lack of alignment around expectations about availability and left both the Applicant and Respondent in an awkward position when the Applicant advised that she had a pre-planned holiday post commencement. The communication worsened from this point. It is unclear as to whether the Applicant's holiday period was to be taken as approved leave or something else and I accept the Applicant's evidence that she did not learn of her dismissal until she received a separation certificate on 3 January 2025. The process adopted by the Respondent was, understandably, a poor one from the Applicant's perspective.

• [43] However, the application the Applicant has made is a general protections application involving dismissal and in this regard the Applicant submits she was dismissed because she took leave.

• [44] Section 340 of the Act prohibits a person from taking adverse action against another person:

1. has a workplace right; or
2. has, or has not, exercised a workplace right; or
3. proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

• [45] The Applicant was a part time employee entitled to four weeks annual leave however it is not clear that she sought or was approved to take annual leave and whether she had a right to do so at that particular time. It is also unclear as to how the absence was to be characterised by the Applicant and Respondent (i.e. annual leave or something else). While the Applicant appears to suggest she took leave, in her email to Zora on 16 January 2025 she states that she did not ask to take leave but simply asked to swap shifts with someone else for the week during which she was unavailable.

• [46] It seems likely that the Respondents decided to dismiss the Applicant because she was not available to work during their busy period due to a holiday the Applicant did not tell them about before they employed her. The basis for which the Applicant says she was dismissed in contravention of the Act is not entirely clear to me, however I am conscious that the Applicant is self-represented, that the provisions of the Act concerning general protections are complex and that she has not had the opportunity to fully build out her case as she would in a hearing of the merits. Having regard to the matters referred to above, I find that the merits of the application will necessarily turn on the evidence and developed legal arguments and that it is not possible to make an assessment of the merits of the application based on the limited material before me.

Section 366(e) - fairness between the person and other persons in a like position

• [47] The Full Bench has noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[6]

• [48] Neither party brought to my attention any relevant matters currently before the Commission or others previously decided by the Commission. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [49] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

(a) the reason for the delay, being that the Applicant did not realise the implications of filing outside of the 21-day period until she sought advice;

(b) the action taken by the Applicant to dispute the dismissal prior to making the application;

(c) the absence of any prejudice to the employer;

(d) the merits of the application being unable to be determined ahead of a hearing; and

(e) no issue of fairness arising as between the Applicant and other persons in a similar position.

• [50] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[7] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[8]

• [51] I accept that the Applicant was seeking details of the reasons for her dismissal in writing and that the Respondent's communication about this was poor, but I do not accept that this provides a reasonable basis for the delay in making an application, particularly when she had a hunch about why she was dismissed, and I do not consider this was an exceptional circumstance. Further, the fact that Applicant may not have been aware of the 21 day timeframe until she sought advice is not an exceptional circumstance. I am not satisfied that considering the above matters individually or collectively point towards there being any exceptional circumstances. Further, I am not satisfied that there are exceptional circumstances after having regard to all of the matters at s.366(2) of the FW Act.

• [52] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant's application for an unfair dismissal remedy is therefore dismissed.

[1] Applicant's Form F8 Application, response to q. 1.4.

[2] Applicant's Form F8 Application, response to q. 1.5.

[3] Applicant's Outline of Argument, response to q. 1d.

[4] Applicant's Outline of Argument, response to q. 1e.

[5] Applicant's Form F8 Application, response to q. 1.2.

[6] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

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