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[2026] FWC 262
General information, not legal advice.
Fair Work Commission
2026-02-06
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - dismissal date -application out of time - circumstances not exceptional - application dismissed.
[1] This decision concerns an application by Ms Xiaoping Zhou (the Applicant) for an unfair dismissal remedy (the Application) pursuant to s 394 of the Fair Work Act 2009 (the Act) that was lodged on 1 October 2025. The Applicant was employed by Golden Sun Australia Pty Ltd (the Respondent)
[2] The Applicant commenced her employment with the Respondent on 22 March 2021. The Applicant claimed in the Application that she was notified of her dismissal by text on 20 August 2025, and that the dismissal took effect on 10 September 2025. The Respondent claimed that the Applicant was notified of her dismissal on 20 August and it took effect on that same date.
[3] Unfair dismissal applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. If the dismissal occurred on 20 August 2024, the Application should have been lodged by 10 September 2025. The Application would therefore have been lodged 21 days after the last day on which the Application could have been made.
[4] If, however, the dismissal took effect on 10 September 2025, the Application should have been lodged by 1 October 2025, which was the date the Application was lodged.
[5] On 8 January 2025, the sole matter of the out of time application was allocated to my Chambers. On that same day Directions were issued to determine the programming of the matter. The Directions were:
[1] By no later than 4:00PM on 15 January 2026 (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:
• Whether the Applicant first became aware of the dismissal after it had taken effect;
• If there is any prejudice to the employer (including prejudice caused by the delay);
• Fairness as between the Applicant and any other persons in a similar position.
[2] By no later than 4:00PM on 22 January 2026 the Respondent) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on.
[3] By no later than 4:00PM on 29 January 2026 the Applicant is directed to prepare a signed witness statement reply to the material filed by the Respondent with respect to the Jurisdictional Issue, which includes everything they seek to rely on.
Important note: Failure to comply with these Directions or to attend the Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.
[6] On 13 January 2026 the Applicant filed a Statement from the Applicant.
[7] On 21 January 2026 the Respondent filed a Statement of Mr Li Xu, Director of the Respondent.
[8] The Applicant did not file any reply materials and, after contact from my Chambers seeking compliance with direction 3 of the Directions, the Applicant advised they would not file any reply materials.
[9] The Hearing took place on 30 January 2026.
[10] The Applicant was employed by the Respondent from 22 March 2022.
[11] On 20 August 2025, the Applicant was directed to attend a meeting with her Manager, Mr Xu, who advised her that her employment was being terminated on the basis of redundancy.
[12] After the meeting on 20 August 2025, the Applicant claims she had another discussion with Mr Xu who advised her that she could work out her notice period, or she could be "on call", in that she wouldn't have to attend the office but must be available to perform work if required. The Applicant claimed she advised Mr Xu she would remain "on call" during the notice period. Mr Xu affirmed a different version of that meeting. His evidence was:
Following the meeting on 20 August 2025, and prior to the written confirmation being sent, the Applicant advised that she would not attend work from the following day. The Applicant did not perform any work for the Respondent after 20 August 2025 and did not attend the workplace thereafter.
[13] Later, at 4.12pm on 20 August 2025, the Applicant received the following email from Mr Xu (the First Email):
I regret to inform you that due to a decline in business and rising costs, your position can no longer be retained. In accordance with government regulations, all entitlements will be settled accordingly. Thank you for your work.
please feel free to contact me if you have any questions.
[14] The Applicant responded to the above email at 11.54am on 21 August 2025, as follows (the Second Email):
I got your email. I can see business is slow. I understand that you had to reduce workers. Yesterday you said I have 3 weeks with pay to look for another job then finish. Can you tell me when is my last day?
[15] The Respondent replied to the above email at 2.13pm on 21 August 2025, as follows (the Third Email):
Please check this email. It contains your holiday records, three weeks' wages, and this week's four-day wages. If you find any errors, please let me know.
Feel free to contact me if you have any questions.
[16] The Applicant's three week notice period expired on 10 September 2025, and she was paid weekly wages on 4 September 2025, 11 September 2025 and her final pay on 17 September 2025.
[17] It was not in dispute that the Applicant did not perform work for the Respondent after 20 August 2025.
[18] To be effective, a notice of termination must be received by the recipient. As Keely J
observed in Transport Workers Union v National Dairies Limited[1] a matter involving a
notice of termination posted by an employer to an employee:
"In my opinion the mere posting of a letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee."
"We see no reason to depart from the above line of authority insofar as it is consistent with the general principle at common law that a dismissal may not take effect prior to it being communicated to the employee. Neither party submitted otherwise. However two questions remain. The first is whether there are any exceptions to this principle, the existence of which are suggested but not identified in Makenja and WorkPac_. The second is whether the mere receipt of a communication (whether a letter, fax or email) is sufficient to constitute the communication of the dismissal to the employee in circumstances where the employee has not read the communication immediately upon receipt._
Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of "exceptional circumstances" required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application."
[20] There is no issue that the Applicant received the First Email. The First Email was abundantly clear in advising that the Applicant's employment would cease. In response to the enquiry of the Applicant in the Second Email, the Respondent specifically advised her in the Third Email that 20 August 2025 would be her "last day".
[21] Accordingly, the date of dismissal of the Applicant was 20 August 2025. That was the date on which the Applicant was notified of her dismissal.
[22] I reject the submission that the Applicant was somehow "on call" between 20 August and 10 September 2025, because:
(a) It is inconsistent with the Applicant's recitation in the Second Email that she would "have 3 weeks with pay to look for another job then finish";
(b) It is inconsistent with the Third Email and the specific statement that 20 August 2025 was the last day; and
(c) It is inconsistent with the evidence of Mr Xu, which I prefer to the Applicant where there is difference, due to the candour of Mr Xu when giving evidence.
[24] In D'Souza the Deputy President found:
"[29] With respect, these submissions have no substance. They misunderstand the effect on the employment relationship of an unlawful act. They misunderstand the distinction between the contract of employment and the relationship of employment under that contract. Section 117(2) prohibits an employer terminating the employment of an employee without giving notice or making payment in lieu of notice before effecting termination.
[30] If an employer terminates the employment of an employee without notice and without making payment in lieu of notice before effecting termination, the result is that the employer has acted unlawfully. It does not invalidate the termination of the employment. An employee's remedy is to apply for a penalty for a contravention of that provision by reference to a breach of s. 44(1) of the Act which provides that:
An employer must not contravene a provision of the National Employment Standards.
[31] The note makes clear that that provision is a civil remedy provision. But the
employment nevertheless has ended notwithstanding the unlawful act. The Applicant's
[25] I accept and adopt the above analysis. The failure to pay the Applicant the full amount in lieu of notice until 17 September 2025, did not affect the fact that the dismissal occurred on 20 August 2025.
[26] Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 10 September 2025. The Application was therefore filed 21 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s 394(3). The Respondent opposes this request.
[28] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.
[29] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(f) fairness as between the person and other persons in a similar position.
[30] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.
[31] The Applicant did not address any of the requirements of Section 394(3) in either her Statement or Submission, and the Applicant specifically declined to file reply materials. The Applicant did, in final oral submissions, put that there was significant scope for confusion regarding dismissal date, and submit that confusion was an exceptional circumstance. The Applicant, however, accepted there was no evidence of any confusion.
[32] The Respondent did address the requirements of Section 394(3) quite broadly, and the issue of prejudice specifically. In his Statement, Mr Xu deposed:
13. The Applicant lodged her unfair dismissal application on 1 October 2025.
14. This was 42 days after the dismissal took effect on 20 August 2025.
15. The Respondent has not seen any exceptional or compelling circumstances that
would justify the granting of an extension of time under section 394 of the Act.
16. The delay has caused real prejudice to the Respondent, a small business with
• disruption to business operations during a period of financial difficulty, and
[33] Having regard to the matters I am required to take into account under s 394(3), I am not satisfied that there has been established any exceptional circumstances. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3).
[34] Accordingly, the application for an unfair dismissal remedy must be dismissed.
Mr S Wescott (Solicitor) on behalf of the Applicant.
[1] (1994) 57 IR 183, at pp. 184 to 185.
[2] [2016] FWCFB 5500, at [35] and [36].
[4] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].
Printed by authority of the Commonwealth Government Printer
Xiaoping Zhou
Golden Sun Australia Pty Ltd [2026] FWC 262
(1994) 57 IR 183