Tusitala Lavea v Civic Packaging P/L As/T for Shelley Family Trust

[2025] FWC 2502

[2025] FWC 2502

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tusitala Lavea
v

Civic Packaging P/L As/T For Shelley Family Trust

(U2025/11928)

COMMISSIONER TRAN MELBOURNE, 26 AUGUST 2025

Application for an unfair dismissal remedy – Respondent objects on the grounds that the Applicant was a casual employee and therefore not dismissed – Respondent dismissed Applicant – Application made out of time – No exceptional circumstances – No extension granted – Application dismissed.

1. This is an edited version of a decision delivered ex tempore on 25 August 2025.

1. Mr Tusitala Lavea was employed by Civic Packaging Pty Ltd ATF Shelley Family Trust on a casual basis. On Sunday 4 May 2025, Civic Packaging sent Mr Lavea a text message that said:

Unfortunately for the next few weeks there won’t be any work available to you.
 …
If things pick up we can put you straight back on…

1. On 21 July 2025, Mr Lavea applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth). Mr Lavea’s application was filed more than 21 days after his employment ended. Civic Packaging say that they did not dismiss Mr Lavea.

1. This decision deals with 2 matters:

1.   Whether Civic Packaging’s text message to Mr Lavea on 4 May 2025 was a dismissal; and

2.   If it was a dismissal, whether there are exceptional circumstances to allow a further period of time for Mr Lavea to have made his application.

DISMISSAL

1. There is no dispute that Mr Lavea was a casual employee. He first started work for Civic Packaging in May 2024.

1. Generally speaking, a casual employee does not have a guarantee of work and each engagement of a casual employee is a separate contract of employment (see: City of Sydney RSL & Community Club Limited v Balgowan[2018] FWCFB 5 at [23]). But the Act recognises that casual employees may work regularly and for a one employer over an extended period of time. Casual employees are protected from unfair dismissal if they can establish that they were a regular casual employee with a reasonable expectation of continuing employment, and they have completed the minimum period of employment ((sections 382, 383 and 384 of the Act). Casual employees are also protected from dismissal in contravention of the general protections’ provisions (section 365 of the Act).

1. It follows that a casual employee can be dismissed.

1. It is well established that not offering a casual employee shifts or reducing their hours or pay can be a termination of employment at the employer’s initiative within the meaning of s 386 (see Coffey v QBar Darwin Pty Ltd[2017] FWC 4312 at [17]; Park v LOTW Indro Pty Ltd[2020] FWC 858 at [36]; and George v The Face Specialist Pty Ltd[2024] FWC 2239 at [26]).

1. The text message of 4 May 2025 is clear that Mr Lavea will not be offered work in the near future. He has not been offered work since that date. I am satisfied that by informing Mr Lavea that there was no work available to him, Civic Packaging dismissed him within the meaning of s 386 of the Act.

1. This occurred on 4 May 2025, which was also when the dismissal took effect. So, Mr Lavea’s application was not filed within 21 days of that date and can only continue if I allow a further period in accordance with s 394(3) of the Act.

EXTENSION OF TIME

1. In order to extend time, I must be satisfied that there are exceptional circumstances, having regard to the factors in section 394(3) of the Act.

1. Exceptional circumstances are not defined in the Act, but the case law as summarised in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13] establishes the following:

·   the Commission must consider all of the circumstances;

·   the phrase’s ordinary meaning means out of the ordinary, or unusual, or special, or uncommon;

1. Whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each (see: Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901 at [39])

1. I am not satisfied that there are exceptional circumstances to allow a further period for the application to be made.

1. No submissions were made about:

·   prejudice to the employer or

·   fairness as between Mr Lavea and other persons in a similar position

1. In relation to merits, Mr Lavea does have an arguable case; it does not appear that he was given the opportunity to respond to the reasons why he was dismissed.

1. But I consider that the following matters weigh against a finding of exceptional circumstances.

·   Mr Lavea was aware of the dismissal when it took effect on 4 May 2025 as he received and replied to the text message.

·   Other than his immediate reply to that text msg, Mr Lavea took no action to dispute the dismissal.

·   Mr Lavea’s reason for the 2-month delay was that he did not know about making an unfair dismissal application. This is unfortunately not an acceptable reason for delay and is fairly common.

1. As I have concluded that there are no exceptional circumstances, I cannot allow a further period for Mr Lavea to make his application.

1. I order that Mr Tusitala Lavea’s application for an unfair dismissal remedy under FWC Matter No U2025/11928 made on 21 July 2025 be dismissed.

COMMISSIONER

Appearances:

Mr T Lavea, on his own behalf.
Mr N Westbury, on behalf of the Respondent.

Hearing details:

2025
Melbourne
25 August

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