1
Fair Work Act 2009
s.394—Unfair dismissal
David Newey
v
Sidebar Games Pty Ltd
(U2024/3334)
DEPUTY PRESIDENT DEAN CANBERRA, 9 MAY 2024
Application for an unfair dismissal remedy – effective date of dismissal – application made
within time.
[1] On 22 March 2024, Mr David Newey (Applicant) made an application for an unfair
dismissal remedy pursuant to s.394 of the Fair Work Act 2009 alleging that he was unfairly
dismissed by Sidebar Games Pty Ltd (Respondent).
[2] Section 394(2) of the Act provides 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] There is a dispute about the date the Applicant’s dismissal took effect. It is necessary to
determine the date the dismissal took effect to ascertain whether the application was made
within the statutory time frame.
[4] The matter was listed for hearing by telephone on 8 May 2024. The Applicant was self-
represented. The Respondent did not wish to be heard and as a result did not attend the hearing.
Was the application made within 21 days after the dismissal took effect?
[5] Briefly, a dismissal does not take effect unless and until it is communicated to the
employee who is being dismissed.
[6] The application filed by the Applicant records 28 February 2024 as the date he was told
of his dismissal. The application also records 29 February 2024 as the date the dismissal took
effect. However the Applicant gave uncontested evidence that he was very unclear about the
date his dismissal took effect because the Respondent refused to speak with him directly about
his dismissal, and to the extent anything was communicated to him, it was via a ‘slack’ message
[2024] FWC 1191
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 1191
2
exchange between the Applicant and Mr Daniel Newey of the Respondent who is the
Applicant’s brother, followed by a letter of termination.
[7] The slack message exchange between the Applicant and the Respondent which was part
of the Applicant’s evidence shows that the Applicant sought clarification about the
Respondent’s intentions with respect to his ongoing employment. The Respondent did not make
clear in those messages when his employment might end.
[8] The termination letter, dated 28 February 2024, records that the Applicant’s
employment would end on 29 March 2024.
[9] The Respondent submitted the termination letter mistakenly listed 29 March as the date
the dismissal would take effect, and the Applicant knew this to be a mistake because he did not
work after this date.
[10] There is no evidence to suggest the Respondent took any steps to clarify with the
Applicant the effective date of his dismissal, given it says the date in the termination letter was
incorrect.
[11] I am satisfied that there was a high level of confusion by the Applicant as to the date his
dismissal was to take effect, caused in large part by the refusal of the Respondent to speak with
the Applicant, and because the termination letter states unequivocally that his employment
would end on 29 March 2024. The Applicant gave uncontested evidence that he understood this
was the effective date because he was entitled to a four week notice period. I consider this to
be a reasonable assumption on the part of the Applicant.
[12] Given this set of circumstances, I consider it reasonable for the Applicant to have relied
on what the Respondent put in writing in the termination letter, that being that the effective date
of dismissal was 29 March 2024.
[13] Accordingly, I find that 29 March 2024 was the date the dismissal took effect.
[14] To the extent the application has been made prematurely, in that the application was
made on 22 March and the dismissal did not take effect until 29 March 2024, I exercise the
Commissions discretion under s.586(b) which allows me to waive an irregularity in the form or
manner in which an application is made.1
Conclusion
[15] The application for an unfair dismissal remedy has not been made outside the 21 day
timeframe allowed by the Act and so no extension of time is necessary.
[2024] FWC 1191
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[16] The application will now be referred for conciliation.
DEPUTY PRESIDENT
Appearances:
D Newey, on his own behalf.
Hearing details:
2024.
By telephone:
May 8.
Printed by authority of the Commonwealth Government Printer
PR774618
1 Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070.
OF THE PAIR WORK THE FAIR ORK CO ADOTSALLA MMISSION THE SEALO
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1070.htm
