s.394 - Unfair dismissal

Unfair dismissal - extension of time not granted - application dismissed

• [1] On 28 September 2025, Mr Samuel Vatikani (the Applicant) made an unfair dismissal application having been dismissed by Your Mob Pty Ltd (the Respondent). The Respondent raised a jurisdictional objection to the unfair dismissal application on the basis that it was filed outside of the statutory period prescribed by s 394(2)(a) of the Fair Work Act 2009 (Cth) (the Act) and that the Applicant had not been dismissed.

• [2] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect (s 394(2) of the Act).

• [3] The Applicant contends he was notified of his dismissal on 2 September 2025. The Respondent states at part 1.3 of the Form F3 that it notified the Applicant of his dismissal on 2 September 2025, but that the deactivation of internal communication to the Applicant occurred on 22 August 2025 (see part 1.4 of the Form F3). Further, the Respondent appears to assert at part 2.2 of the Form F3 by the use of highlighting, that the Applicant was not dismissed, as indicated above.

• [4] If the Respondent dismissed the Applicant and that dismissal took effect on 2 September 2025, it would follow that the Applicant made his unfair dismissal application five days outside of the statutory period. If the Applicant was dismissed and the dismissal took effect on 22 August 2025, it would follow that the application was made sixteen days out of time.

• [5] The contentious issues in this matter can be summarised as follows:

a) what was the date that the Applicant's dismissal took effect or the employment of the Applicant ended;

b) did the Applicant make his unfair dismissal application outside of the statutory timeframe provided in s 394(2)(a) of the Act; and

c) if the unfair dismissal application was made outside of the statutory timeframe, are there exceptional circumstance that warrant granting an extension of time in which to make the unfair dismissal application and if so, is it fair and equitable for an extension to be granted?

• [6] The matter proceeded to hearing in light of the dispute over the dismissal and dismissal date.

• [7] For the reasons that follow, I have found that the Applicant was dismissed and that his dismissal took effect on 22 August 2025. It follows that the Applicant's application was made sixteen days outside of the statutory period. Notwithstanding that the Applicant was informed of his dismissal after his dismissal took effect, having considered the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and therefore it is unnecessary to address whether it is fair and equitable that time should be extended.

• [8] The application is dismissed and an Order[1] issues concurrently with this decision. My detailed reasons follow.

• [9] It is well-established that a termination of employment takes effect when it has been communicated to the employee.

• [10] In Ayub v NSW Trains ('Ayub'), the Full Bench considered that a dismissal without notice is to be interpreted on the basis that the dismissal cannot take effect for the purposes of Part 3-2 of the Act until the employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.[2] The Full Bench explained at paragraph [42] of Ayub:

We likewise consider that the mere delivery of a document to an employee's usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document...

• [11] It is uncontroversial that the Applicant was employed by the Respondent as a youth worker on a casual basis, having commenced employment with the Respondent on 29 July 2024. The Respondent asserts in its Form F3 that it notified the Applicant of his dismissal on 2 September 2025, but that the dismissal took effect when it deactivated 'internal communication' to the Applicant on 22 August 2025. Regarding the 'internal communication', the evidence of both Applicant and Respondent suggests that internal communication occurred through the use of 'Slack'.

• [12] According to the Respondent, during the period of 6 July 2025 to the end of August 2025, the Applicant did not send his work availabilities to the Rostering Team. The Applicant admits that this was the case and that he was taking a mental health break. During this period, the Respondent asserts that its Management Team attempted to contact the Applicant via 'Slack' and having not received a response from the Applicant, attempts were made to contact the Applicant by mobile phone calls and text messages. The Respondent submits that the Applicant informed the Respondent that he had found a new place of employment and when the Respondent asked how it could support the Applicant, the Applicant did not respond.

• [13] The Respondent submits that it gave the Applicant a reasonable amount of time to respond (presumedly to its messages and calls), but then decided to deactivate the Applicant from Slack, because the use of Slack for each employee incurs costs. The Respondent stated that it did not provide the Applicant with a letter of termination, due to the nature of his employment circumstances.

• [14] The Applicant gave evidence that the first indication of his dismissal came from a brief message from his regional manager, 'Taape', on 2 September 2025. This message was received after he had contacted 'Taape' because he noticed he had been removed from Slack without explanation. The Applicant referred the Commission to text messages between him and 'Taape' dated 30 August and 2 September:

Hey taape just wondering I messaged tonga but I cant get into slack was wondering if I could get some help with that

You missed a call, but the caller didn't leave a message.

We've deactivated your Slack as we did a follow up on all our casuals to see if they wanted to remain on your mob books. I was told you didn't get back to my team so weve taken you off.

Oh nobody asked me if I wanted to remain on your mob books? Thats why I'm a bit shook

Did you speak to Tonga or Curtly in the past two weeks I tasked them to contact all casusals

Yes but nothing about remaining on your mob books was communicated to me at all

Ok sorry that wasnt communicated to you Sam We have struggled to get workers to cover lately so we needed to keep on those that were actively picking up shifts and deactivate those who wasnt picking up. Thanks for all your work Sam and wish you all the best moving forward.

• [15] The evidence before me shows that the Applicant was notified of his employment ending on 2 September 2025. However, I find that the Applicant's employment with the Respondent terminated on the day that the Respondent deactivated 'internal communication' to the Applicant on 22 August 2025. It is evident from the Respondent's submissions that it had no intent to offer the Applicant shifts past 22 August 2025, having removed the Applicant's access to the internal communication mechanism utilised in the Respondent organisation to communicate shift availability and allocation of shifts to its employees.

• [16] While the Respondent has indicated by a highlighted box on the Form F3 that it does not consider that it dismissed the Applicant, it then purports to having notified the Applicant of his dismissal on 2 September 2025. I consider that the Respondent's view derives from the casual nature of the former employment relationship between it and the Applicant. At hearing, it was evident that the Respondent considered that it was not obliged to provide a letter of termination. However, casual employment does not preclude there having been a termination of employment at the initiative of the Respondent. In this respect, the Respondent appears to have been operating under a misconception that a casual employee is unable to be dismissed given the nature of the relationship. It was implicit in the text message of 2 September 2025 from 'Taape' to the Applicant that the Applicant's employment had been terminated at the initiative of the Respondent - 'Taape' having thanked the Applicant for his work and wishing him the best moving forward.

• [17] It follows that the Applicant's unfair dismissal application was filed sixteen days outside of the statutory period set by s 394(2) of the Act. Therefore, consideration turns to whether an extension of time in which to make his unfair dismissal application should be granted.

• [18] For the Applicant's unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

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

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

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

• [19] Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are 'exceptional circumstances'. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[3] It is accepted that exceptional circumstances can 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.[4]

• [20] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench stated the following in respect of the assessment of exceptional circumstances:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[5]

• [21] In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable[6] or reasonable explanation.[7] 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 the applicant's favour, however, all of the circumstances must be considered.[8]

• [22] The relevant period required to be considered under s 394(3)(a) of the Act is the period after the 21-day timeframe for lodging the application.[9] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[10]

• [23] The Applicant provides several reasons for the delay in making his application. First, he was unaware of any dismissal, having not been properly told that he had been dismissed. Second, he experienced mental strain and felt unsupported. Third, he did not understand that there was a 21-day statutory period in which to make an unfair dismissal application.

• [24] Addressing the latter reason first, it is accepted that ignorance of the law does not constitute exceptional circumstances or provide plausible reason for a delay period.[11]

• [25] In respect of the Applicant suffering mental strain and feeling unsupported, whilst appreciative that the loss of a job can be a significant event in a person's life and may cause hardship and mental challenges, the Full Bench of this Commission has expressed that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves, and that the loss of employment is a serious event in a person's life, but that such responses and consequences are not unusual.[12]

• [26] In the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish they were prevented from lodging an application due to a medical condition. In this case, there is no probative medical evidence, for example, a medical certificate, showing incapacity at a particular time or times in the delay period or leading up to the delay period.

• [27] The Applicant considers that the delay in making his application can be attributed to having been dismissed (on 22 August 2025) but having only received the first indication of that dismissal as of 2 September 2025. Having been dismissed as of 22 August 2025, the Applicant was obliged to file his application by the 21-day time limit of 12 September 2025. However, the Applicant was not notified of his dismissal until 2 September which left him 10 days in which to file his application within time.

• [28] It follows that I consider that there is a plausible explanation for part of the delay period between 13 September 2025 and 23 September 2025. However, other reasons relied upon by the Applicant are not, in my view, credible reasons for the remaining period of delay.

• [29] Having regard to these matters, I am satisfied that the Applicant has provided an acceptable explanation for part of the delay, but for the period of 23 September 2025 to 27 September 2025, he has not. In all the circumstances, I therefore consider this to be a neutral factor.

3.2 Whether the person first became aware of the dismissal after it had taken effect

• [30] The Applicant was advised of his dismissal on 2 September 2025 notwithstanding that his dismissal took effect on 22 August 2025. The Applicant therefore did not have the full 21-day period to lodge his application for an unfair dismissal remedy. I have considered that this weighs toward the grant of an extension of time.

3.3 Action taken by the person to dispute the dismissal

• [31] The Applicant did not take any action to dispute the dismissal prior to making the unfair dismissal application. I consider that this weighs against a finding of exceptional circumstances.

• [32] I am satisfied that there would be no greater prejudice to the Respondent caused by the application being dealt with now, than if the application had been made within the 21-day limitation period. However, the mere absence of prejudice is not, in my view, a factor that would tell in favour of the grant of an extension of time.[13] I consider this to be a neutral consideration.

• [33] In Telstra-Network Technology Group v Kornicki, the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth).[14] In that case, the Full Bench said in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[15]

• [34] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[16] The merits of the application more generally would need to be scrutinised, including consideration of the circumstances of the dismissal, if an extension of time were granted and the matter proceeded.

• [35] The evidence that has been advanced by the parties is indicative that the Applicant will face several significant issues advancing his application. This includes whether he met the minimum employment period such that he was protected from unfair dismissal, and whether he was unfairly dismissed in circumstances where the Respondent purports the Applicant was unreceptive to Slack notifications, mobile phone calls, and text messages in respect to shifts, for a period of two months.

• [36] In respect of the Respondent's case, the Applicant appears to have taken issue with the procedural fairness of his dismissal, noting the delay in having been informed that he had been deactivated from Slack.

• [37] These factual disputes between the parties would require resolution if the matter were to proceed to consideration of whether the Applicant was protected from unfair dismissal and whether he was unfairly dismissed. At this stage, given the evidence adduced, I am unable to address whether the Applicant had satisfied the minimum employment period as a casual employee such that he was protected from unfair dismissal. In respect of the merits of the matter, the Respondent, through Ms Tappe Seumanutafa, its Regional Manager, referred to the Respondent's 'policy' on rostering, with which the Applicant acknowledged he was familiar. That policy sets out: '[i]f YW does not respond after the period of four weeks to shift request by Roster coordinator messages, your slack account will be deactivated'. It is evident from the Applicant's evidence alone that he did not provide his availability to the Respondent for a period of approximately two months and was not receptive to phone calls made by the Respondent. The Applicant's Slack account was deactivated due to his lack of contact with the Respondent, and the Applicant did not provide any evidence to suggest that he had communicated to the Respondent that he was taking a mental health break. Further, the Applicant acknowledged familiarity with the Respondent's rostering policy.

• [38] Based on the material before me, I cannot conclude the Applicant's case is absent merit albeit he will face significant obstacles. However, in all the circumstances, I consider that the merits in this case are a neutral factor for the abovementioned reasons.

3.6 Fairness as between the person and other persons in a similar position

• [39] The criterion of 'fairness as between the person and other persons in a similar position', was considered by Deputy President Gostencnik (as he then was) in Morphett v Pearcedale Egg Farm, where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[17]

• [40] Based on the submissions filed, I am not satisfied that the criterion of fairness between the person and other persons in a similar position weighs toward a finding of exceptional circumstances.

• [41] The test of exceptional circumstances in s 394(3) of the Act is a stringent one. The Applicant has provided a satisfactory explanation for part of the delay period in making his application and the Applicant was notified of his dismissal after it had taken effect. However, the Applicant did not dispute his dismissal and the remaining matters I need to consider tell neither for nor against the application for an extension of time.

• [42] In these circumstances, having considered all the evidence and having weighed the totality of that evidence, I find that there are not exceptional circumstances and therefore it is unnecessary to consider whether it is fair and equitable that an extension of time be granted to the date the application was lodged.

• [43] The Respondent's jurisdictional objection with respect to the timeframe for lodgement is upheld and as such, the Applicant's application is dismissed.

[1] PR794110.

[2] [2016] FWCFB 5500 [48].

[3] [2011] FWAFB 975, [13] ('Nulty').

[5] [2018] FWCFB 901, [38] (emphasis in original) ('Stogiannidis').

[6] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9].

[7] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

[9] Long v Keolis Downer [2018] FWCFB 4109, [40].

[10] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] ('Shaw').

[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

[14] (1997) 140 IR 1.

[16] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

[17] [2015] FWC 8885, [29].

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