No termination letter, no clarity, and the filing deadline moved
The Fair Work Commission handed down its decision on a case that turns on one of the most basic obligations in employment: telling a worker their job is over.
Unha Lei worked shifts at a store operated by The One Australia Holding Pty Ltd. Her shifts had been wound back before stopping altogether. She worked her last shift on 15 July 2025. The employer then offered her reduced shifts totalling four hours per week across the following two weeks. She declined, making clear she was not willing to work on those terms.
What complicated matters further was what HR had told her in the meantime. Lei had been informed there was an "investigation" underway and that she should wait for the outcome. She did exactly that, waiting without shifts, hours or income, and without any resolution, before eventually filing her unfair dismissal application on 6 September 2025.
By that point, she had missed the 21-day filing window under the Fair Work Act 2009. The employer argued the application should be rejected on that basis.
The employer took that as a cue to stop rostering her altogether from the week commencing 4 August 2025. No termination letter was issued. No formal written notice was given. Commissioner Matheson accepted that as of that date, it was unclear to Lei whether she had been dismissed at all.
The employer's out-of-time argument did not hold. "I accept that as of 4 August 2025 it was unclear to the Applicant as to whether she was dismissed and as such did not become aware that she had been dismissed until a later date when her concerns remained unresolved and she was not offered any further shifts," Commissioner Matheson found.
Because Lei was unaware of her own dismissal until after it had taken effect, and because the employer could point to no material prejudice from the short delay, the Commission granted the extension. The matter will now proceed to a hearing on its merits.
In reaching that conclusion, the Commission drew on established authority that 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." The combination of no written notice, an unresolved HR investigation, and a worker left genuinely uncertain about her own employment status was enough to clear that bar.
For HR leaders, the decision is a direct prompt to examine how employment endings are managed, particularly where shift-based arrangements are involved. When an employer internally resolves to stop offering someone shifts, that decision constitutes a dismissal in law. If the worker is never clearly informed, that genuine confusion about whether and when a dismissal occurred may be enough for the Commission to find exceptional circumstances and extend the filing window under the Fair Work Act.
The open HR investigation carries its own weight too. Leaving a process unresolved while simultaneously withdrawing someone's work is not a neutral act. As this decision makes clear, it can extend an employer's legal exposure well beyond what a properly documented termination would have.
A written notice at the right time could have changed the outcome entirely.
