Ayse Tugluk v Disability Talk Pty Ltd - [2025] FWC 2924

[2025] FWC 2924

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ayse Tugluk
v

Disability Talk Pty Ltd

(U2025/13847)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 1 OCTOBER 2025

Application for an unfair dismissal remedy – application filed 40 days out of time – extension not granted – application dismissed.

Ms Ayse Tugluk (the Applicant) asserts that she was dismissed from her employment with Disability Talk Pty Ltd (the Respondent). The Applicant was engaged by the Respondent as a casual disability support worker pursuant to an employment agreement she signed on 11 November 2024. The employment agreement outlined that the Applicant’s casual employment was to commence on 12 November 2024 “until terminated in accordance with this agreement” and its clause 18 provided that as the Applicant was a casual employee, she was not entitled to be given and was not required to give notice of termination.

The Applicant says that on or about 9 May 2025, she had a discussion with Ms Alma Garcia-Martinez, whom she thought was her manager at the time, in which she told Ms Garcia-Martinez that she was taking on studies for approximately one month, during which time she needed to reduce her working hours to a single Saturday shift. The Applicant said that Ms Garcia-Martinez confirmed that she could do so. Ms Christine Porta, the Respondent’s Chief Executive Officer said she was aware of this arrangement and she produced a payslip that recorded the last hours of work the Applicant performed for the Respondent, which she said took place on Saturday 24 May 2025. Ms Porta said that the Applicant cancelled her Saturday shifts on 17 May 2025 and 31 May 2025. On Friday 6 June 2025, Ms Porta sent a text message to the Applicant advising her that her shifts had been reallocated but that the Respondent would be happy to reassign her shifts when her availability changed and she could commit to a minimum of 10 hours per week. Ms Porta said that after this, she made the Applicant “inactive” in the Respondent’s human resources App. The Applicant says that she discovered this on 25 June 2025 and sought to make contact with the Respondent in order to remedy this. She said the only way she was able to make contact was through text messages and having advised the Respondent on 26 June 2025 that she could not access the App, she received a response from “Jess” advising her that there were no shifts for her “at the moment” and that the Respondent would contact her when shifts were available. The Applicant was unhappy with this response and replied with a further text message. The Applicant confirmed that she had been taken off the App and stated that she believed that she was being “fired.” The Applicant also asserted that she was being “unlawfully dismissed” and warned the Respondent that she would be taking “appropriate legal action.” Ms Porta said that while she…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 2924
Decision Date: 1 OCTOBER 2025

CaseChat Overview and Summary

Ayse Tugluk filed an application for an unfair dismissal remedy against Disability Talk Pty Ltd, asserting that she had been dismissed from her casual employment as a disability support worker. The employer disputes the dismissal and denies that the applicant was dismissed. The applicant filed her application 40 days outside of the statutory 21-day period for making such an application. The applicant sought an extension of time to file her application.

The central issue before the Commission was whether the applicant could be granted an extension of time to file her unfair dismissal application. Under the Fair Work Act 2009, an application for an unfair dismissal remedy must be made within 21 days of the dismissal, and an extension of time may only be granted if there are exceptional circumstances. The Commission needed to determine whether the applicant’s delay in filing her application was justified by exceptional circumstances under the provisions of the Act.

The Commission found that the applicant was aware of her dismissal by 26 June 2025, which was 20 days after her dismissal. This meant that the applicant did not have the full 21-day period to file her application. The applicant did take some action to dispute the dismissal by corresponding with the employer on 26 June 2025, but there was no further correspondence after this. While these factors slightly weighed in favour of granting an extension, the absence of a credible explanation for the majority of the 40-day delay weighed against it. The Commission concluded that there were no exceptional circumstances to warrant an extension of time. Consequently, the application for an extension of time was dismissed, and the applicant’s unfair dismissal application was also dismissed.

The final order of the Commission was that the application for an extension of time to file the unfair dismissal application was dismissed.

Orders