s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed prematurely - whether to waive irregularity - whether dismissed

• [1] On 16 April 2025, Mr Najib applied for an unfair dismissal remedy under section 394 of the Fair Work Act (Cth) (the Act) in relation to his employment with MSS Security Pty Limited (MSS Security). Under s.394, "a person who has been dismissed" may apply to the Commission for an unfair dismissal remedy. The dismissal must have taken effect by the time the application is made, which must be within 21 days "after" the dismissal took effect, or within such further period as the Commission allows.

• [2] There is a dispute in this case about whether Mr Najib had been dismissed at the time that he applied to the Commission. Mr Najib relies on s.386(1)(b) of the Act to submit that he was forced to resign on 16 April 2025 because of MSS Security's conduct toward him. MSS Security denies that Mr Najib was forced to resign and submits that the dismissal took effect immediately when the outcome of a disciplinary process was notified to Mr Najib on 28 April 2025.

• [3] The question is whether the application was made prematurely and not in accordance with the Act. There is a separate question as to whether the application should be dismissed, or whether the irregularity of an application filed prematurely should be waived under s.586.

• [4] I find that Mr Najib had not been dismissed at the time he applied to the Commission for an unfair dismissal remedy. The application is not made in accordance with the Act. In the circumstances, I have decided not to waive the irregularity, and the application will be dismissed. These are my reasons.

• [5] On 28 March 2025, MSS Security commenced a disciplinary process by making six allegations against Mr Najib about unexplained absence from work on 24, 27 and 28 March. Mr Najib was stood down with pay and directed to attend a meeting on 1 April 2025. Mr Najib did not attend the meeting as directed on 1 April 2025.

• [6] At 3.28pm on 3 April 2025, Mr Najib wrote to MSS Security. Although he did not respond in substance to the allegations, he concluded his email with:

"Given these ongoing issues and the impact they have had on my ability to perform my role effectively, I see two viable options moving forward:

1. Transfer me to a different department where I am not required to work under the current management.

• [7] At 4.16pm on 4 April 2025, MSS Security replied by email to Mr Najib. It advised that it had "lost confidence and trust" in his performance, determined this to be "irreparable" and so declined to consider his transfer to a different department. The email advised however that:

"MSS Security is willing to accept your resignation and is willing to waiver your 2 weeks notice period given you are not prepared to work as directed. Please respond acknowledging your resignation to be effective immediately and we will commence the process in WorkDay."

• [8] At 5.30pm on 4 April 2025, Mr Najib responded to MSS Security without giving the acknowledgment sought. Instead, he advised:

"If MSS Security is not willing to explore a fair resolution or transfer, I will take the necessary time to evaluate my options and respond accordingly."

• [9] After receiving this email, MSS Security proceeded on the basis that Mr Najib had decided not to resign. It advised him that the disciplinary process would continue and directed him to attend a meeting on Monday, 7 April 2025.

• [10] Mr Najib sent further correspondence to MSS Security at 5.21am and 5.59am on 5 April 2025, including about the status of his stand down without pay. He did not attend the meeting scheduled for 7 April 2025.

• [11] At 6.26pm on 7 April 2025, Mr Najib provided a medical certificate covering the period from 2 to 4 April 2025.

• [12] On 12.46pm and 1.38pm on 8 April 2025, MSS Security sent Mr Najib a show cause letter arising from the disciplinary process and related investigation. Mr Najib was directed to respond in writing by 12.00pm on 10 April 2025 and to attend a meeting at 4.00pm on 10 April 2025.

• [13] At 1.59pm on 8 April 2025, Mr Najib responded to the show cause letter and requested that any future communication remain in writing. He concluded by stating that he remained "open to working toward a resolution that is professional and constructive".

• [14] On 9 April 2025, Mr Najib emailed MSS Security to say that he was uncomfortable attending the meeting without an impartial third party and consequently, he would be declining the meeting invite but remained open to "continuing the process" via written communication.

• [15] At 10.50am on 10 April 2025, MSS Security advised Mr Najib of a change in attendees for the scheduled meeting later that day, in response to concerns he had raised about impartiality. The direction to attend the meeting remained and Mr Najib was invited to bring a support person.

• [16] At 12.00pm on 10 April 2025, Mr Najib restated that he "did not feel comfortable attending a face-to-face meeting where my statements could again be misrepresented or taken out of context". MSS Security responded by saying that "declining these meetings is your decision" and that Mr Najib would be informed of the outcome in a timely manner.

• [17] At 7.40pm on 13 April 2025, Mr Najib wrote again to MSS Security, including that:

"This email serves as a final opportunity for MSS Security to resolve the ongoing employment matter concerning my treatment as a full-time employee, non-payment of wages, and the procedural unfairness I have experienced throughout this process. Despite my efforts to engage respectfully and provide clear, timely written responses, MSS Security has repeatedly failed to acknowledge key facts, address the issues raised, or follow through on procedural fairness."

• [18] Mr Najib concluded his email with the following:

I am still open to resolving this professionally. If not, I will formally escalate to the Fair Work Commission and provide the full timeline and supporting evidence already outlined above.

• - Full back pay from March 17, 2025, onward
• - All unpaid entitlements, including superannuation and accrued leave
• - Compensation for procedural mishandling and financial loss, equal to the maximum 26 weeks allowable under the Fair Work Act
• - Reimbursement for out-of-pocket financial impact, including $3,100 borrowed from my brother to meet living expenses as a direct result of MSS Security's failure to pay me
• - A formal acknowledgment of procedural failure, or alternatively
• - A mutual separation agreement with a neutral reference

I have acted in good faith and exercised restraint throughout. I've documented every communication, fulfilled every request in writing, and withheld exposing misconduct out of integrity, not avoidance.

I also remind MSS Security that your own Code of Ethics emphasises professionalism, procedural fairness, and respect toward employees. I trust that principle will be honored before this becomes a formal legal matter.

Please respond by 5:00 pm, Wednesday, 16 April 2025. After this, escalation will proceed without further notice."

• [19] At 5.05pm on 16 April 2025, Mr Najib lodged this unfair dismissal application with the Commission.

• [20] At 5.14pm on 16 April 2025, Mr Najib sent an email to MSS Security to say that he had filed an application in the Commission on the grounds of constructive dismissal. He alleged that:

"continued mistreatment, procedural unfairness, non-payment of wages and the complete breakdown of trust and support made it untenable for me to reasonably continue my employment".

• [21] Continuing with the use of past tense, he explained that he had "made every attempt to resolve this matter professionally and in good faith" and that "MSS was given multiple fair opportunities to respond and act accordingly, but chose not to". He said that he now left the matter "in the hands of the Commission."

• [22] On 17 April 2025, MSS Security sent Mr Najib a breakdown of his pay from 31 March 2025 to 17 April 2025 and directed him to attend a meeting on 22 April at 1.30pm.

• [23] On 18 April 2025, Mr Najib responded reiterating that he had already submitted a claim to the Commission "on the grounds of constructive dismissal".

• [24] On 28 April 2025, MSS Security wrote to Mr Najib advising the termination of his employment on the grounds of serious misconduct with immediate effect.

• [25] On the evidence, Mr Najib had not been dismissed at the time the application was made.

• [26] On 13 April 2025, Mr Najib considered himself still employed by MSS Security (although no longer actively working). He proposed a settlement of the employment relationship including on the basis of payment of "all unpaid entitlements, including superannuation and accrued leave" and a "mutual separation agreement". The proposal was accompanied by a request for response from MSS Security by 5.00pm on 16 April 2025.

• [27] The time of 5.00pm on 16 April 2025 came and went. Mr Najib decided that he had been constructively dismissed and applied to the Commission for an unfair dismissal remedy five minutes later.

• [28] Nine minutes after the application was filed, at 5.14pm on 16 April 2025, Mr Najib advised MSS Security in clear terms that he could no longer continue in his employment. In other words, he resigned. The matter he left "in the hands of the Commission" was its consideration of an unfair dismissal remedy, premised on the assumption that he had been dismissed. A reasonable person in the position of MSS Security would have understood from this communication that Mr Najib was terminating the employment relationship. MSS Security later received a copy of the application on 23 April 2025 when it was served by the Commission. One consequence of finding that Mr Najib resigned is to render MSS Security's dismissal of Mr Najib on 28 April 2025 ineffective. At that time, the employment relationship had already come to an end.

• [29] It follows that at the time of his application to the Commission, Mr Najib had not yet resigned from his employment with MSS Security, and MSS Security had not dismissed him. The employment relationship remained in place. The application was made prematurely. It was not made in accordance with the Act.

• [30] The premature filing of an application can be an irregularity capable of waiver under s.586(b) of the Act.[1] In this case, I accept that it was. The question is whether the irregularity should be waived, or instead whether the application should be dismissed.

• [31] Even though the period between filing the application and Mr Najib's resignation was very short, I am not satisfied in all the circumstances that it is in the interests of justice for the irregularity to be waived. The application proceeds on the basis that Mr Najib was forced to resign by the conduct, or a course of conduct, of MSS Security. Mr Najib has articulated, in a fulsome way, why he says this is so. He cites legal principles and cases in support of his position that do not appear consonant with current authority. Some of the cases either do not exist or are incorrectly cited. It appears to be yet another cautionary tale about reliance on artificial intelligence without any checking of the results produced. I do not agree with Mr Najib's characterisation of relevant events.

• [32] On the materials, Mr Najib was not forced to resign. He had another choice, which was to continue in employment until the end of the disciplinary process that had commenced on 28 March 2025. On 8 April 2025, Mr Najib had effectively conceded the conduct that gave rise to the allegations against him. The concessions, together with an earlier "first and final warning" in February 2025 and MSS Security's advice to Mr Najib on 4 April 2025, make it likely that Mr Najib would have been dismissed by MSS Security at the conclusion of the disciplinary process, but that does not mean that he was dismissed on 16 April 2025. At that time, the process had not yet concluded.

• [33] Noting the concessions made by Mr Najib, MSS Security had reasonable grounds for commencing the disciplinary process, and for undertaking the process in a way that was procedurally fair to Mr Najib. Mr Najib's choice to limit his participation in the process, and then to disengage from it entirely, was his own. There is no evidence that MSS Security intended to bring the employment relationship to an end at this time. Nor do I accept that Mr Najib's resignation was the probable result of the disciplinary process, or that at the time Mr Najib resigned on 16 April 2025, he had no real or effective other choice. Mr Najib was not dismissed by MSS Security. In the circumstances, waiver of the irregularity in relation to the time of filing the application would serve no useful purpose.

• [34] The application is dismissed under s.587(1)(a).

[1] Mihajlovic, Peter v Lifeline Macarthur [2014] FWCFB 1070.

Printed by authority of the Commonwealth Government Printer