1
Fair Work Act 2009
s.394—Unfair dismissal
Thomas Trevan
v
Vardan Towing & Transport Pty Ltd
(U2024/7418)
COMMISSIONER YILMAZ MELBOURNE, 30 JULY 2024
Application for an unfair dismissal remedy – application lodged out of time – whether there
are exceptional circumstances – extension of time granted
[1] Mr Thomas Trevan (the Applicant) lodged a s.394 application under the Fair Work Act
2009 (the Act) for an unfair dismissal remedy in relation to the termination of his employment
with Vardan Towing & Transport Pty Ltd (Vardan or the Respondent).
[2] Mr Trevan commenced employment in the position of transport co-ordinator/ dispatcher
on or about 18 September 2023 and was dismissed on 13 May 2024. The unfair dismissal
application was lodged on 27 June 2024, 24 days after the statutory 21-day limit. The hearing
for an extension of time was held on 24 July 2024.
[3] The Respondent attended the case management hearing on 5 July 2024 and committed
to filing the Employer’s Response-Form F3 in response to the application in 3 days, as well as
pay the Applicant outstanding employee entitlements and provide him with his payslips and a
copy of his contract within 3 days. Further the Respondent was informed of the dates to file
materials in relation to the extension of time application. Directions and a Notice of listing was
immediately forwarded to the parties after the case management hearing to confirm the dates
discussed with the parties. On the day of the extension of time hearing, it was confirmed that
the Respondent did not file the form F3, did not file and serve any submissions, nor were the
outstanding employee entitlements paid or documents sent to Mr Trevan.
[4] The Respondent did not participate in the hearing. My Chambers contacted the
Respondent’s General Manager, Ms Neha Sandhu who advised that she was not at work and
sought an adjournment before terminating the telephone call. An adjournment was not granted.
Just prior to conclusion of the hearing, an email was received from the General Manager
advising that she was on sick leave and would like to appoint her lawyer to handle the matter.
The hearing proceeded in absence of representation for the Respondent.
[5] The Act allows for an extension of time by the Commission if it is satisfied that there
are exceptional circumstances. Exceptional circumstances are circumstances that are out of the
ordinary course, unusual, special or uncommon but the circumstances themselves do not need
[2024] FWC 2016
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 2016
2
to be unique nor unprecedented, nor even very rare.1 Exceptional circumstances may 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.2
[6] Section 394(3) of the Act requires that, in considering whether to grant an extension of
time, the Commission must take 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.
[7] 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. I now consider these matters in the context of the Application.
Reason for the Delay
[8] The Act does not specify what reason for delay might tell in favour of granting an
extension however decisions of the Commission have referred to an acceptable or reasonable
explanation. 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.3
[9] Mr Trevan submits that he commenced employment with the Respondent on 18
September 2023, as a full-time employee on $73,000 per annum plus superannuation. Mr
Trevan signed his contract of employment electronically but was not given a copy despite his
numerous requests. A copy of the email cover sheet requesting electronic signature of the
contract was tendered in evidence, but the link to the contract became inactive once Mr Trevan
signed the contract.4 The same email states that a final contract copy in pdf will be emailed,
however, Mr Trevan confirmed that he never received a copy.
[10] Mr Trevan also tendered in evidence all Facebook messenger communications between
himself and the Business Development Manager, Mr Josh Soupe (also his direct line manager)
which shows that he was employed by Mr Soupe on behalf of the Respondent following an
interview on 4 September 2023. Ms Neha Sandhu delayed producing and sending the contract,
however, Mr Trevan and Mr Soupe communicated regularly and on 8 September 2023, the offer
of $73,000 plus super and the start at 7.00am on 18 September 2023 was confirmed in
Messenger between them.
[2024] FWC 2016
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[11] Mr Trevan also submits that at no point did he receive any payslips and following his
dismissal and on checking with the ATO, he discovered that no tax had been paid by the
Respondent on his earnings, nor any superannuation contributions made.
[12] On Sunday 13 May 2024, at 11.04pm Mr Trevan received an email with a letter of
termination attached. The cover email states:
“Good evening Tom,
The purpose of this notice is to confirm the outcome of a recent review by Vardan
Towing and Transport of its operational requirements, and what this means for you.
As a result of economic downturn, the position of second Transport Coordinator is no
longer needed. Regrettably this means your employment will terminate
immediately.
Your employment will end immediately. Please refer to the attached letter of
termination.
Kind regards,
Neha Sandhu
General Manager, Vardan Towing & Transport”
[13] The letter of termination repeats what is provided in the cover email in addition to
confirming the dismissal is a redundancy and based on Mr Trevan’s period of employment he
would be paid 1 week of notice in lieu and his wages up until his last day he worked.
[14] On 13 May 2024 at 11.07pm Mr Trevan messaged his manager Mr Soupe with “I just
got fired?” This message was not responded to until 4 June 2024 which was:
“Happy birthday mate.
Sorry I haven’t reached out earlier.
Just want to let you know that the decision was made without my knowledge or input.
Happy to give you a reference for any new position you are going for.”
[15] On 14 May 2024,5 Mr Trevan followed up by email to Ms Neha Sandhu asking for his
payslips to see his leave and loading entitlements, and again on 3 June 20246 Mr Trevan
requested by email his payslips and outstanding entitlements. These emails went unanswered.
[16] On 5 June 2024,7 Mr Trevan again emailed Ms Neha Sandhu advising as there has been
no response to his emails of 14 May and 3 June he has prepared formal requests which he
attached to the email. His two formal letters of request to the Respondent attached to the email
are as follows:
[2024] FWC 2016
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“Dear Ms Sandhu,
As you are aware I am a former employee of Vardan Transport. I worked as a dispatcher
at your Truganina location between September 2023 and May 2024. I would like to
check my employment entitlements.
To do this, I need information from my employment records. Can you please provide
me with the following records for the period 1 September 2023 to 30 May 2024:
• the businesses legal name and ABN
• my start date
• my termination date and the reason for my termination
• my employment status (full-time, part-time or casual)
• records of the hours I worked (including date/day of the week, start and
finish times and breaks)
• pay slips or other records of my pay (including loadings, penalty rates,
overtime, and other amounts)
• any deductions from my pay
• my leave records showing leave accrued and taken (both paid and
unpaid).
Please note that I am allowed to obtain copies of these records under the Fair Work
Regulations 2009.
Please provide these records to me by 7 June 2024. They can be sent by email at
[redacted].
Please contact me on [redacted] if you would like to discuss this request.
Yours sincerely,
Thomas Trevan”
And
“Dear Ms Sandhu,
As you are aware I am a former employee of Vardan Transport. I worked as a dispatcher
at your Truganina location between September 2023 and May 2024. You will also be
aware of an email sent from yourself on the 13th of May 2024 in which you informed
me of your intent to make my position redundant effective immediately.
In this notice you also stated that;
“You will be paid the salary of the 1 week notice period”
as well as
[2024] FWC 2016
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“You will also be paid your accrued entitlements and any outstanding pay up to and
including your last day of employment”
Under the Fair Work Regulations 2009 you are required to make any final payments
within 7 days of the notice period of ceased employment. Therefor I should have
received those payments by the 20th of May 2024 and to date of this letter I have
received nothing nor any statement of remittance to show the amount you intend to
pay.
Please provide a final payment statement with funds transferred to me by 7 June 2024.
They can be sent by email at [redacted].
Please contact me on [redacted] if you would like to discuss this request.
Yours sincerely,
Thomas Trevan”
[17] On the same day, 2 minutes later Ms Neha Sandhu responded apologising for the delay
and stated that his payment was “being finalised in the system” and that he would be paid on 6
June 2024. Mr Trevan followed up again with Ms Neha Sandhu on 11 June 2024 advising her
that he was still awaiting his entitlements.8
[18] Mr Trevan submits that he contacted the Fair Work Ombudsman (FWO) and provided
evidence of 8 telephone calls made by the FWO9 to the Respondent which went unanswered
and 2 emails10 explaining the reason for the contact and requesting a response. Mr Trevan
submits that he was informed on 21 June 2024 that the FWO could not ascertain details of the
legal entity nor ABN for the Respondent. He submits that the FWO informed him when he first
contacted them that the information was necessary to file an unfair dismissal application.
[19] On 27 June 2024, Mr Trevan managed to obtain from a former client of the Respondent,
its ABN and confirmation of legal entity. This former client provided a statement of evidence
attesting to his awareness that Mr Trevan was in a customer and dispatching role at Vardan
Towing and Transport Pty Ltd and disclosed the ABN.
[20] I observe that on receipt of this information Mr Trevan promptly filed his unfair
dismissal application. It is unusual and uncommon for employers to deny their employees
details of its legal entity. It is common for employers to provide a copy of the contract of
employment and/ or at least payslips. From the evidence tendered, no documentation from the
Respondent identifies its legal name or its ABN. Mr Trevan tendered in evidence emails,
containing signature blocks and business cards, but could not tender his contract of employment
as the Respondent refused to provide him with a copy, even though he had electronically signed
the document.
[21] I observe that the Respondent’s website refers to 2 businesses one being Vardan
Transport Pty Ltd and the other being Vardan Towing and Transport. There are no evident
ABNs for either business on their website. An ASIC search shows for the ABN provided by the
former client, the business entity that employed Mr Trevan is Vardan Towing and Transport
[2024] FWC 2016
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Pty Ltd which commenced on 7 June 2023. Vardan Transport Pty Ltd has a different ABN and
commenced on 24 October 2012. Both are a private company with a common Director between
them.
[22] Mr Trevan submits that the delay was due to his inability to obtain the correct legal
details for the Respondent. While an unfair dismissal application requires the identity of the
Respondent, not having the ABN is not fatal to the application. However, Mr Trevan held
genuine concerns that if he was unable to provide the legal entity and the ABN, that it would
be open to the Respondent to challenge the application on the basis it was not the employer.
Taking into account Mr Trevan’s evidence including the Commission’s own experiences with
the Respondent, it is not unreasonable for him to hold this concern. Mr Trevan could not with
confidence properly identify his employer, let alone the ABN, there are two businesses
operating on the one site and the Respondent refused to provide a copy of the signed contract
and no payslips were ever provided to identify the employer.
[23] The circumstances in this matter are unusual and uncommon. Mr Trevan accounted for
the full period of the delay, providing evidence of his actions and of the FWO to obtain details
of the employing legal entity consistent with advice from the FWO that it was necessary to
identify the legal employer in an unfair dismissal application. It is noted that not only was Mr
Trevan‘s objective to obtain the necessary entity details, but also sought payment of his legal
minimum entitlements upon dismissal. I am satisfied that Mr Trevan’s reasons are genuine and
reasonable to explain the delay. None of the delay is attributable to his actions, rather much of
the responsibility for the delay rests with the Respondent as it has flouted its legal employment
obligations and ignored the FWO. I observe that even after giving a commitment to this
Commission that it will comply with its obligations, it proceeded to break its commitment and
continued to ignore its legal obligations.
[24] Having considered the evidence I find that Mr Trevan has met the standard for
explaining the delay, the reason for the delay is acceptable and reasonable in the circumstances,
but also unusual, uncommon and exceptional which weighs in favour of an extension of time.
[25] However, the reason for the delay is not in itself required to be an exceptional
circumstance. It is one of the factors that must be weighed in assessing whether, overall, there
are exceptional circumstances.11
Whether the person first became aware of the dismissal after it had taken effect
[26] Mr Trevan was aware of the dismissal date, and he actively took reasonable action to
obtain the required information necessary to lodge an unfair dismissal claim and to pursue his
legal entitlements. This consideration is a neutral consideration.
Action taken to dispute the dismissal
[27] Mr Trevan took many steps to ensure the Respondent was on notice regarding their legal
obligations to him and that he was pursuing his entitlements. These steps also included action
by the Fair Work Ombudsman (8 telephone calls and 2 emails) which went unanswered. Mr
Trevan’s actions weigh in favour of an extension in relation to this consideration.
[2024] FWC 2016
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Prejudice to the employer
[28] There is no prejudice to the employer if the application is granted. In fact, the action
taken by the Respondent contributed to the delay including its refusal to provide access to
important employment records to which Mr Trevan was entitled and required. It is also evident
that despite its awareness, the Respondent ignored its legal obligations.
[29] In all the circumstances I do not find any prejudice to be suffered by the Respondent if
an extension of time is granted. However, despite an absence of prejudice, it is no basis to
favour an extension. Therefore, this consideration is neutral.
Merits of the application
[30] Mr Trevan gave evidence that without any notice at 11.05pm on 13 May 2024 he
received an email and letter advising him that his employment was dismissed immediately due
to economic downturn. The letter refers to his position as second Transport Coordinator. Mr
Trevan gave evidence that a 3rd transport co-ordinator/ dispatcher was employed on 29 April
2024 and on 15 May 2024 he confirmed that the person retained their employment having
spoken to the person direct. Mr Trevan submits that he was able to determine that he was the
only employee made redundant and an additional transport coordinator/ dispatcher was
employed some 4 weeks after his dismissal.12
[31] In addition, Mr Trevan submits advertisements for the same role appeared on Seek on
16 May 2024 and the Respondent regularly advertised driver vacancies. Mr Trevan gave
evidence that the business employed around 12 employees in the office and around 40 drivers.
He submits that the Respondent was aware of his driver qualifications yet failed to consult or
consider his appropriateness for any other role. Mr Trevan contends the dismissal was not a
genuine redundancy and contravened the unfair dismissal protections in the Fair Work Act
2009.
[32] Following an assessment of Mr Trevan’s evidence and due to an absence of any
evidence from the Respondent, it is reasonable to conclude on a preliminary basis that Vardan
is not a small business, the dismissal lacked any procedural fairness and its reason of
redundancy improbable. Further its avoidance of its legal obligations in terms of payment of
wages, tax and superannuation including its failure to reply to the FWO on 10 separate
occasions is a serious matter. In my view the Respondent’s avoidance of its legal obligations to
pay Mr Trevan his entitlements on termination of employment, its refusal to provide the
contract of employment and failure to provide payslips alone, strongly adds weight to the
contention that the dismissal was not a genuine redundancy and in favour of a meritorious unfair
dismissal application.
[33] I am mindful to suggest that the evidence of serious conduct by the Respondent is
unlikely to be isolated to Mr Trevan. On this basis it would be unsurprising if the FWO takes
further interest in the Respondent and its obligations to comply with minimum conditions of
employment.
Fairness as between the person and other persons in a similar position
[2024] FWC 2016
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[34] Mr Trevan submits that current employees that he contacted were concerned about their
own entitlements but were fearful to offer their support or any evidence in his matter. In respect
to s.394 (3) (f) the purpose is to take into account any matters where persons are in similar
circumstances to Mr Trevan. As no evidence addressed this satisfactorily, I consider this factor
neutral.
Conclusion
[35] Having considered the matters I am required to take into account in s.394(3) of the Act,
and the object in s.381(2) I am satisfied that there are exceptional circumstances to grant an
extension of time and it is appropriate to do so to 27 June 2024.
[36] The reason for the delay, action taken to dispute the dismissal and merit all favour an
extension of time, while awareness of the date of dismissal, prejudice and fairness, I consider
all neutral considerations. On the materials before me, I have given due weight to each
consideration and on balance, there are exceptional circumstances supporting an extension of
time to the application pursuant to s.394(3) of the Act.
[37] Accordingly, a further period for the application is allowed and the matter will be listed
for further programming.
COMMISSIONER
Appearances:
T Trevan, Applicant
Hearing details:
2024.
Melbourne (via Microsoft Teams):
July 24.
Printed by authority of the Commonwealth Government Printer
PR777676
OF THE FA WORK COMMISSION THE SE
[2024] FWC 2016
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1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].
2 Ibid.
3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
4 Adobe acrobat signature request sent on behalf of Neha Sandhu, dated 15 September 2023.
5 Emailed at 8.18am.
6 Emailed at 12.04pm.
7 Emailed at 1.21pm.
8 Emailed at 12.27pm.
9 14 June 2024 at 12:09, 18 June 2024 at 11:39, 18 June 2024 at 16:23, 19 June 2024 at 15:35, 19 June 2024 at 16:05, 19 June
2024 at 16:06, 20 June 2024 at 15:46, and 20 June 2024 at 15:55.
10 14 June 2024 at 12.25 and 18 June 2024 at 16.24.
11 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
12 Applicant’s Statement of Evidence.
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb975.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb901.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb901.htm
