Finding the smoking gun job advertisement wasn't enough to save his unfair dismissal claim
An Executive Chef found his supposedly redundant job advertised online three months after being dismissed—but his unfair dismissal claim was tossed out for missing the deadline.
Matthew Usmar learned on July 17, 2025, that his Executive Chef position at SSP Australia Catering was being eliminated. The company told him operational requirements and a reduction in client work meant his role was no longer needed. His last day would be July 25, 2025.
But there was a wrinkle. Usmar was on WorkCover for a bicep injury when he got the news. He later told the Fair Work Commission he believed his temporary incapacity was seen as a weakness and suspected this was the real reason he was pushed out.
At the time, though, Usmar said he accepted the company's explanation. He was shocked by the redundancy because he felt his role was busy, but he didn't challenge the decision. He focused on his recovery and moved on.
Then came October 21, 2025. Usmar stumbled across a job advertisement for an Executive Chef position at SSP Australia Catering—the same role he'd been told was redundant. He filed an unfair dismissal application that same day.
The problem was timing. Under the Fair Work Act, workers have just 21 days from dismissal to file an unfair dismissal claim. Usmar's application landed 88 days after his termination, a full 67 days past the deadline.
At a hearing held December 5, 2025, Usmar argued he deserved an extension. He told the Commission the delay happened because he was injured, on WorkCover, focused on getting better, and unaware of the strict time limit. The job advertisement, he said, fundamentally changed his understanding of what had happened.
SSP Australia Catering stuck to its story. The dismissal , the company insisted. As for that job ad? Posted in error, they said, without proper approvals, and since removed.
Deputy President Lake handed down the decision on January 27, 2026, and it wasn't what Usmar wanted to hear.
While the Commission acknowledged that discovering a job advertisement after redundancy can sometimes justify an extension, that's unlikely when the worker already had reasons to suspect something wasn't right. Deputy President Lake noted Usmar was unhappy about being made
redundant while on WorkCover and could have challenged the dismissal on those grounds immediately. He could have questioned the company's claim that no suitable redeployment existed.
The decision found that "it seems that rather than the application being grounded in the discovery of a material fact after the limitation period, the discovery of the advertisement prompted the Applicant to reconsider aspects of the redundancy which were already within his knowledge at the time of dismissal."
The Commission also cited an earlier case, noting that applicants can't "hold the statutory time limit hostage to a factual confirmation."
Not knowing about the law, the Deputy President added, doesn't create exceptional circumstances. Finding out a job was advertised might be a valid reason for delay. Finding out you can challenge a dismissal is not.
The application was dismissed.
For HR leaders, the case offers pointed lessons. When redundancies involve workers on injury leave, the operational reasons need to be airtight and well documented. Consultation processes matter even more. And after redundancies are announced, lock down recruitment controls. Even a job posting made "in error" can blow up a restructure's credibility and land the organization in hot water that's hard to escape.
