1
Fair Work Act 2009
s.394—Unfair dismissal
Isshasri Vasuthaven
v
Woolworths Group Limited
(U2023/4758)
DEPUTY PRESIDENT O’NEILL MELBOURNE, 14 JULY 2023
Application for an unfair dismissal remedy – extension of time – application made within time
– no extension necessary.
Introduction
[1] On 31 May 2023, Ms Vasuthaven made an application to the Commission for an unfair
dismissal remedy. On 9 May 2023, the Respondent emailed the Applicant advising that her
employment had been terminated.
[2] Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) states that an application for
an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or
within such further period as the Commission allows pursuant to s.394(3).
[3] This decision deals with whether Ms Vasuthaven’s application was made within 21-
days after the dismissal took effect, and if not, whether there are exceptional circumstances that
warrant additional time being allowed.
[4] This preliminary issue was dealt with at a hearing on 13 July 2023, at which the
Applicant gave evidence in support of her application. The Respondent made submissions
opposing additional time being granted.
Factual findings
[5] Ms Vasuthaven’s evidence, which I accept, was that:
(a) She commenced employment with the Respondent on a casual basis in August
2017;
(b) On 15 March 2023 she travelled to Malaysia to assist her grandmother who was
seriously ill and returned to Australia around 25-26 May 2023. Although she was
unsure of the precise date, it was sometime that week;
[2023] FWC 1701
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1701.pdf
[2023] FWC 1701
2
(c) Her grandmother lives in a fairly remote area of Malaysia and does not have wi-fi
either in her home or surrounds. While she was in Malaysia the Applicant did not
have access to the internet either at her grandmother’s house or elsewhere and was
unable to, and did not, access her email;
(d) Upon her return to Australia, the Applicant logged on to the Respondent’s rostering
system to check when she would next be rostered to work and found she did not
have access to it. She then checked her emails and discovered an email from the
Respondent of 9 May 2023 advising that her employment had been terminated from
that date based on abandonment of her employment. She was unaware that she had
been dismissed until she read the email around 25-26 May 2023;
(e) After learning she had been dismissed, the Applicant says that she was stressed and
unsure of what to do. Her evidence was imprecise and uncertain about her actions
from this date, but she said that it took her some time to act, perhaps 1-3 days; and
(f) Ms Vasuthaven made an unfair dismissal application on 31 May 2023.
Consideration
[6] A dismissal does not take effect until an employee is aware that they have been
dismissed or has had a reasonable opportunity to become aware.1 Whether an employee has had
a reasonable opportunity to become aware will necessarily turn on all the facts of the matter.2
[7] I accept Ms Vasuthaven’s evidence that she only became aware that she had been
dismissed on or around 25 May 2023 when she returned to Australia and discovered the email
of 9 May 2023. In the unusual circumstances of this matter, I find that the reasonable
opportunity for the Applicant to become aware of the dismissal email started when she returned
to Australia on or around 25 May 2023. I therefore find that the dismissal only took effect on
or around 25 May 2023.
Conclusion
[8] As a result, the application made on 31 May 2023 was clearly within 21 days after the
dismissal took effect. Therefore, exceptional circumstances need not be found as no additional
time to make the application is needed.
[2023] FWC 1701
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[9] The application will be listed for a case management conference shortly, noting that the
Respondent has foreshadowed raising a separate jurisdictional objection to the application.
DEPUTY PRESIDENT
Appearances:
Ms Isshasri Vasuthaven, for the Applicant
Ms Nella Bennet, for the Respondent
Hearing details:
Thursday, 13 July 2023
Melbourne via Microsoft Teams
Printed by authority of the Commonwealth Government Printer
PR764203
1 Ayub v NSW Trains [2016] FWCFB 5500.
2 Foyster v Bunnings Group Limited [2017] FWCFB 3923.
THE NEW YORK OF THE SEAL WORK COMMISSION
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb5500.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3923.htm
