Fair Work Act 2009

s.365 - General protections

Central Australian Institute of Technology Pty Limited

Application to deal with contraventions involving dismissal - resignation - whether employee dismissed - employee not paid - employee dismissed - application lodged out of time - no exceptional circumstances - application dismissed.

• [1] Mr Srikant Reddy Nomula Baddam made a general protections application involving dismissal pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act) on 15 January 2025. The application has been made against Central Australian Institute of Technology Pty Ltd, a post-secondary education provider.

• [2] Mr Nomula Baddam was employed by the respondent on a permanent part time basis as an assistant accountant.[1] He travelled to India in November 2023 with the approval of his direct manager, the respondent's Finance Manager.[2] It was agreed that Mr Nomula Baddam would work remotely from India until May 2024 while he attended his wedding and had what Mr Nomula Baddam referred to as "long-pending" ankle surgery.

• [3] The respondent's human resources manager, Mr Abselom Negha, denied any prior knowledge of these arrangements and submits that it was not documented. Mr Negha raised his concerns with Mr Nomula Baddam by email on 15 November 2023 and requested detailed plans about his working arrangements while in India.[3] Mr Negha did not consider that Mr Nomula Baddam's response addressed his request for information.[4] Nevertheless, no further steps were taken by the respondent until 9 February 2024 when it invited Mr Nomula Baddam to attend a meeting by video to discuss its concerns about work health and safety, data security and his workplace arrangements.

• [4] At the 12 February 2024 meeting, which was also attended by the Finance Manager, Mr Negha directed Mr Nomula Baddam to return to the Hobart office until his planned ankle surgery (which Mr Negha said he understood to be scheduled for April 2024). The same day, following this meeting, Mr Nomula Baddam sent an email to Mr Negha, the respondent's Chief Executive Officer and the Finance Manager requesting a "reasonable period of notification before withdrawing this working arrangement" and advising that his appointment regarding his ankle treatment was to be held in India on 16 February 2024.[5] The following day, Mr Negha responded by advising, amongst other things, that the timing of the decision about Mr Nomula Baddam's flexible working arrangements would be as directed by the Finance Manager and other senior managers and Mr Negha "will do everything to communicate with you once that decision is made."[6] Mr Nomula Baddam's access to the respondent's work systems was revoked that day (and access was never reinstated).

• [5] Mr Nomula Baddam's ankle surgery did not ultimately proceed and instead a program of "seven therapies" was implemented.[7] Mr Nomula Baddam produced a medical certificate supporting his request for six weeks of sick leave, expiring on 31 March 2024, while undertaking these therapies.[8] The sick leave application was approved by the Finance Manager on 20 February 2024.[9] The respondent's material indicates it held the view that Mr Negha later "overturned" this sick leave approval, however there is no evidence of the respondent communicating this decision to Mr Nomula Baddam.[10]

• [6] Between the 12 February 2024 meeting and 16 February 2024, Mr Nomula Baddam continued to be paid his ordinary wages.[11] Between 16 February and 25 February 2024, Mr Nomula Baddam was paid sick leave.[12] Between 26 February and 2 June 2024, Mr Nomula Baddam was paid his accrued annual leave entitlements.[13] It is not in dispute that Mr Nomula Baddam had unused accrued personal (sick) leave entitlements.[14] On 25 March, Mr Nomula Baddam emailed the respondent's payroll officer to enquire about why he had not received paid sick leave entitlements.[15] Payroll advised that it had processed his sick leave and did not understand why it had been altered to annual leave.[16]

• [7] Mr Nomula Baddam returned to Australia in May 2024.[17] He did not contact the respondent. He learned that the Finance Manager had resigned from his employment. Mr Nomula Baddam continued to be paid his accrued annual leave entitlements until they were exhausted.[18] For the pay period commencing 3 June 2024, Mr Nomula Baddam did not receive any pay from the respondent at all, nor any communication. He also did not receive any pay the following fortnight (commencing 17 June 2025) nor the pay period thereafter (commencing 1 July 2024). On 19 June 2024,[19] Mr Nomula Badam sent an email to Mr Negha and payroll stating that he had not been properly paid. He did not receive a response. On 4 July 2024, Mr Nomula Baddam sent a further email in which he lodged a complaint about the respondent's failure to respond to his concerns.[20] On 8 July 2024, Mr Negha responded by email, stating that he would reply in "due course," but he never did.[21]

• [8] Between 8 July and 11 December 2024, Mr Nomula Baddam and the respondent did not contact each other at all. Mr Nomula Baddam said that he placed reliance upon Mr Negha's 8 July 2024 email advising that he would contact him.[22] However, Mr Nomula Baddam also gave evidence that it was at around this point that he determined that his employer had "abandoned" him and would not respond to him.[23] Mr Nomula Baddam said that he commenced driving an Uber[24] and completed his CPA exam in October 2024. He contacted Legal Aid who advised him that had passed the 21-day period to lodge an application in the Commission. He also received advice that there was a possibility that the respondent's non-responsiveness would be considered a dismissal.[25]

• [9] On 11 December 2024, Mr Nomula Baddam emailed the respondent explaining that he felt he had been treated unfairly.[26] He did not receive a response. On 27 December 2024 Mr Nomula Baddam wrote a further email to the respondent in which he advised that he considered himself constructively dismissed, effective 27 December 2024.[27]

• [10] Mr Nomula Baddam contends that his resignation on 27 December 2024 was forced by the conduct or a course of conduct of the respondent, including its refusal to respond to his multiple emails and its unilateral decision to cease paying his wages. The respondent objected to the application on the basis that Mr Nomula Baddam was not dismissed by it.

• [11] I find that the respondent's failure to pay Mr Nomula Baddam's wages for the pay periods commencing 3 June 2024 (and thereafter) was action by the respondent that was the principal contributing factor which resulted in the termination of Mr Nomula Baddam's employment.[28] Accordingly, I am satisfied that the respondent terminated Mr Nomula Baddam's employment at its initiative in accordance with s 386(1)(a) of the Act; that is, Mr Nomula Baddam was dismissed in accordance with the Act.

• [12] In making this decision, I acknowledge that the respondent had concerns about Mr Nomula Baddam's failure to present himself at the Hobart office as directed. However, any concerns held by the respondent were capable of being addressed absent a unilateral decision to withhold wages and cease all substantive contact with Mr Nomula Baddam - a permanent employee.

• [13] I do not accept that the employment remained on foot until 27 December 2024, when Mr Nomula Baddam informed the respondent of his view that he had been constructively dismissed.[29] The evidence weighs decisively against this conclusion. While Mr Nomula Baddam emailed the respondent on 19 June 2025, the respondent did not acknowledge this email, and despite this, Mr Nomula Baddam took no alternative action. He did not telephone Mr Negha or any of the respondent's representatives to press his concerns about not being paid, and he did not attend the Hobart office. When a further pay period passed on 1 July 2025 without receiving any pay, Mr Nomula Baddam wrote an email to Mr Negha on 4 July 2025 in which he complained that the respondent had not responded to his emails, but he did not complain that he continued to be unpaid. Thereafter, Mr Nomula Baddam took no action at all to contact the respondent again over the five-month period to 11 December 2024. During this period, he did not perform any work for the respondent and, despite contending that he felt confused, he took no other action that is capable of supporting a finding that he did not accept the respondent's repudiatory conduct until 27 December 2024 as he contends.

• [14] Further, Mr Nomula Baddam's oral evidence during the hearing was that he realised in July 2024 "as soon as HR sent me an email wherein it doesn't reflect anything"[30] that the respondent had "abandoned" him. Mr Nomula Baddam said that he was sure that the respondent was not going to respond to him. Despite holding this view, Mr Nomula Baddam took no further action. While I acknowledge that Mr Nomula Baddam held a subjective preference for resolving the issue directly with the respondent, he took no substantive steps to do so. Nor did he continue to raise any objections despite the respondent's ongoing failure to pay his wages or communicate with him. I am satisfied that these matters objectively and persuasively demonstrate that Mr Nomula Baddam accepted the respondent's repudiatory conduct; such acceptance persisting from around 8 July 2024 when Mr Nomula Baddam determined that he had been abandoned and ceased contacting the respondent.

• [15] The effect of this finding is that I consider Mr Nomula Baddam's dismissal to have taken effect on 8 July 2024. Section 365(1) of the Act prescribes that a general protections application involving dismissal must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2). Mr Nomula Baddam's application was lodged with the Commission on 15 January 2024 and was therefore filed more than 21 days after the date I have determined that his dismissal took effect.

• [16] The Commission has the power pursuant to s 366(2) of the Act to extend the time within which a general protections application involving dismissal can be made, only if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd.[31] 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. 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.[32]

• [17] During the hearing, I raised the possibility that if I determined that Mr Nomula Baddam had been dismissed, the application may have been filed out of time.[33] Mr Nomula Baddam gave evidence in relation to the matters at s 366(2) of the Act and was cross examined by the respondent. Further, both parties filed a short, written submission following the hearing.

• [18] Having regard to the matters advanced by Mr Nomula Baddam, I understand that the delay in lodging his application was occasioned by the following matters:

• (a) a deterioration in his health due to prolonged stress, weakened immunity and reduced iron levels, presenting in fatigue, cough and mild chills.[34] Mr Nomula Baddam relies upon a medical certificate dated 11 March 2025 and test results through to 4 July 2024, which provide that he was suffering from recurrent cough, mild chills and recurrent low-grade fever and fatigue in late June and early July 2024 and had Influenza A;[35]
• (b) the impact the respondent's conduct had on Mr Nomula Baddam's self-esteem, self-confidence and decision-making skills;[36]
• (c) the respondent's continued failure to provide clear and transparent communication regarding Mr Nomula Baddam's employment status,[37] including the additional confusion caused by Mr Negha's 8 July 2024 email which advised that he would revert but never did;[38]
• (d) Mr Nomula Baddam's uncertainty about how to address the unfairness;[39]
• (e) Mr Nomula Baddam's understanding that he had been "suspended" at the 12 February 2024 meeting, which he found to be both unexpected and humiliating;[40] and
• (f) seeking assistance from various legal avenues including law firms, law societies, Legal Aid and JobWatch.[41]

• [19] At the outset, while I acknowledge Mr Nomula Baddam's feelings of confusion and uncertainty regarding the status of his employment with the respondent, the evidence does not support a conclusion that he had been suspended at the 12 February 2024 meeting (albeit, his systems access was suspended or revoked the following day due to the respondent's data security concerns). Mr Nomula Baddam's confusion was compounded by Mr Negha's 8 July 2024 email which indicated that a response would be provided to him but never was. However, a response was not necessary before an application could be lodged with the Commission. The evidence demonstrates that Mr Nomula Baddam made a considered decision to wait and see if the respondent would engage with him, as it was his preference to resolve the issues between them internally. Mr Nomula Baddam's feelings of humiliation, which he says impacted his self-esteem and confidence and prevented him from taking steps to contact the respondent directly upon his return to Australia[42] do not provide an acceptable or reasonable explanation for the delay.

• [20] The focus of Mr Nomula Baddam's attention between July and December 2024 appears to have been on improving his physical health and mental strength. I accept that Mr Nomula Baddam contracted Influenza A in late June/early July 2024. While he had a recurrent cough, mild chills and low-grade fever, I do not consider (nor does the medical evidence demonstrate) that these afflictions prevented him from lodging his application in the Commission at any earlier time. Rather, the evidence demonstrates that Mr Nomula Baddam was able to put his focus into sitting an exam in relation to his CPA studies in October 2024.[43] While Mr Nomula Baddam submits that this was part of rebuilding his confidence,[44] there can be little doubt that these studies required significant time and focus from him and that his earlier ill health did not preclude him from achieving this. Further, Mr Nomula Baddam commenced other work, driving an Uber.[45] It follows that I am not persuaded that Mr Nomula Baddam's health concerns in June/July 2024 provide an acceptable or reasonable explanation for the delay.

• [21] While Mr Nomula Baddam's evidence is that he felt abandoned by the respondent by July 2024, the evidence does not demonstrate that he took steps to understand his legal position until in or about November or December 2024. I have taken into consideration Mr Nomula Baddam's feelings of uncertainty about how to address his feelings of unfairness. However, unfamiliarity with one's legal rights is not exceptional, and ignorance of such rights will not usually provide an acceptable explanation for the delay.[46] The Commission's website provides a range of information about the types of applications that can be made and the timeframe within which to lodge them.

• [22] Mr Nomula Baddam appears to have sought some emails from the Finance Manager in around October 2024 and said that he "thought to file a case,"[47] but did not do so. In November 2024, Mr Nomula Baddam says he started contacting lawyers but the cost of obtaining a legal opinion was excessive.[48] As noted at [8] above, Mr Nomula Baddam was informed by Legal Aid that a 21-day time limit applied but this did not cause Mr Nomula Baddam to take immediate steps to lodge a claim. Rather, it seems that he started applying f[49] new roles.49 Following receipt of a constructive dismissal fact sheet from JobWatch on 16 December 2024, Mr Nomula Baddam still did not act with haste. He submitted that "since I had already sent [the respondent] one last email seeking resolution on 11/12/2024, I waited two more weeks before sending my email on 27 December 2024, clearly stating that I considered myself constructively dismissed." It follows that despite forming the view that he wanted to commence a legal claim against the respondent, perhaps as early as October 2024 and receiving information that a 21-day time limit applied, Mr Nomula Baddam did not make diligent efforts to file the application in the Commission as quickly as possible.

• [23] I do not find that any of the matters relied upon by Mr Nomula Baddam as reasons for the delay, individually or collectively, provide an acceptable[50] or reasonable[51] explanation for the delay. This weighs against the grant of an extension of time.

Action taken by the person to dispute the dismissal

• [24] Mr Nomula Baddam contacted the respondent on 19 June 2024 seeking information about his pay and followed this up with a further email on 4 July 2024. Neither of these emails expressly raised the contention that he had been dismissed by the respondent. However, in broad terms, the correspondence did seek to challenge the respondent's failure to pay him, which is the principle contributing factor which resulted in the termination of Mr Nomula Baddam's employment.

• [25] Where an applicant takes action to dispute a dismissal (other than by lodging the relevant application), it will put the employer on notice that the termination of employment is actively contested and may, depending on all the circumstances, favour the grant of an extension of time.[52] In this case, Mr Nomula Baddam's pay enquiries may not be regarded as action in the relevant sense and accordingly, I weigh this consideration neutrally. However, if these pay enquiries were regarded as relevant action in the circumstances, I would consider this factor to weigh only marginally in favour of an extension of time, given the circumstances described at [14] of this decision.

• [26] I cannot identify any particular prejudice that would accrue to the respondent if an extension of time were to be granted. The mere absence of prejudice is not in itself a factor that would point in favour of the grant of an extension of time. I consider this to be a neutral factor.

• [27] For this consideration to weigh in favour of an extension of time, it must be shown that there is some merit in the substantive application.[53] However, an application to extend time is essentially interlocutory in nature and does not enable a fulsome examination of the substantive merits of Mr Nomula Baddam's application. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[54]

• [28] In his general protections application and attached material, Mr Nomula Baddam contends, in summary, as follows:[55]

(a) Despite having sufficient sick and annual leave to take a break until May 2024, the respondent asked Mr Nomula Baddam to continue working during this period and it was not his preference to do so.

(b) Despite being approved to work from home and from India, the respondent raised concerns only after a decision had been made to outsource his role.

(c) The respondent revoked Mr Nomula Baddam's systems access after he had trained an external organisation to take over his role and responsibilities through an outsourcing arrangement.

(d) Despite being on approved sick leave, supported by valid documentation, the respondent deducted Mr Nomula Baddam's annual leave balance despite having over 72 hours of sick leave available.

(e) By 3 June 2024, Mr Nomula Baddam's wages were stopped entirely despite being a permanent employee.

(f) The respondent substantively ignored Mr Nomula Baddam's emails attempting to seek clarity and unilaterally placed him on unpaid leave or suspension.

(g) The respondent's limited engagement with Mr Nomula Baddam after the 12 February 2024 meeting was vague or not factual.

(h) The respondent advanced a sham contracting proposal notwithstanding Mr Nomula Baddam's permanent employment contract.

• [29] Mr Nomula Baddam contends that these actions violated his workplace rights contrary to the general protections provisions of the Act. The respondent rejects Mr Nomula Baddam's contentions, submitting that there has been no breach of the Act as contended. It says that Mr Nomula Baddam refused a reasonable direction to return to the Hobart office and was unable to perform his duties given he was not in Australia. It says he did not provide updates on his injury, his fitness to return to work or his intended return to Australia to perform his employment duties.[56]

• [30] The parties hold substantially different views as to the matters that preceded the dismissal. These events turn on contested points of fact, which have not been the subject of evidence before me or tested under cross-examination. Accordingly, I am unable to form a view about these contested matters. I therefore regard the merits of Mr Nomula Baddam's substantive general protections application to be a neutral factor in my assessment of whether to grant an extension of time.

Fairness as between Mr Nomula Baddam and other persons in a similar position

• [31] Applications to extend time generally turn on their own facts. Neither party brought to my attention any matters of fairness relevant to this consideration. Accordingly, this factor is neutral in my consideration.

• [32] The statutory time limit that applies to the exercise of a person's right to bring a general protections application involving dismissal reflects the parliament's intention that such rights be exercised promptly. The test of exceptional circumstances in s 366(2) of the Act establishes a high hurdle for an applicant for an extension of time.[57] Where the application is lodged outside the statutory time limit, the Commission must be satisfied that there are exceptional circumstances supporting an extension of time.[58]

• [33] Mr Nomula Baddam has not provided an acceptable or reasonable explanation for the delay and this matter weighs against a further period being granted. While Mr Nomula Baddam enquired about the non-payment of his wages on 19 June and 4 July 2024, there is no evidence that he raised a concern that the respondent's conduct amounted to a dismissal such as to put the respondent on notice that the termination of his employment was actively contested at this time. However, for the reasons given at [25] of this decision, if such correspondence constitutes action in the relevant sense, I consider it to weigh only marginally in favour of an extension. The other factors weigh neutrally.

• [34] Having regard to my consideration of the statutory criteria and the conclusions reached, I am not satisfied that the matters raised amount to exceptional circumstances either when the various circumstances are considered individually or together.

• [35] As I am not satisfied that there are exceptional circumstances, the power to extend the time in which Mr Nomula Baddam's general protections application may be made is not enlivened. Mr Nomula Baddam's general protections application is therefore dismissed.

N Visedo, of Citation Legal, on behalf of the respondent.

[1] Exhibit 1, Digital Court Book (DCB) 242-258

[7] Transcript of proceedings (Transcript) PN209

[28] Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75]

[31] [2011] FWAFB 975; 203 IR 1

[36] CB137; Applicant's submissions dated 21 March 2025

[37] Applicant's submissions dated 21 March 2025

[38] Transcript PN125; Applicant's submissions dated 21 March 2025

[39] Applicant's submissions dated 21 March 2025

[40] Applicant's submissions dated 21 March 2025

[41] CB137; Applicant's submissions dated 21 March 2025

[44] Applicant's written submissions dated 21 March 2025

[46] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; 203 IR 1 at [14]

[50] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974 at [9]

[51] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64 at [16]

[52] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298

[53] Long v Keolis Downer (t/as Yarra Trams) [2018] FWCFB 4109 at [71]

[54] Kyvelos v Champion Socks Pty Ltd [2000] AIRC 540, Print T2421 at [14]

[55] CB32-CB35; CB54-CB57; CB67-CB68; CB69-CB80; CB120-CB123

[57] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [14] citing Lombardo v Commonwealth [2014] FWCFB 2288 at [21]

[58] See Cem Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479, upheld on appeal in C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149

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