Fired in Probation? The Case of Haidar v Sydney Tools and What It Means for Unfair Dismissal Claims

Introduction

Unfair dismissal claims are often thought to be unavailable to employees dismissed during their probationary period. However, the case of Haidar v Sydney Tools Pty Ltd [2025] FWC 2292 shows how the Fair Work Commission (FWC) still plays a crucial role in assessing whether applications involving dismissal are lodged within time, and whether “exceptional circumstances” exist to allow late claims to proceed.

Although the case was brought under the general protections dismissal provisions, not the traditional unfair dismissal pathway, the reasoning is highly relevant to anyone considering challenging their termination. This is because strict timeframes apply to both unfair dismissal and general protections dismissal cases, and representative error can sometimes provide an avenue for extensions.

Fired in Probation? The Case of Haidar v Sydney Tools and What It Means for Unfair Dismissal Claims

Case Background

Mr Hassan Haidar began work at Sydney Tools in March 2025 as a Sales Representative. He was dismissed after just nine weeks, during probation. His employer cited performance concerns including excessive phone use, needing constant supervision, and failing to follow directions. Sydney Tools also claimed he failed to turn up to work on 4 May 2025, leaving the store short-staffed.

Mr Haidar alleged instead that his dismissal was linked to a workplace injury and his absence on medical grounds. He argued the dismissal was a breach of general protections provisions, akin to an unfair dismissal, because it was for a prohibited reason.

The crucial issue, however, was timing:

• Sydney Tools said the dismissal took effect on 5 May 2025.

• Mr Haidar argued the dismissal took effect on 12 May 2025, when his notice period expired.

This difference mattered because unfair dismissal and general protections dismissal claims must be filed within 21 days of termination. His application was lodged on 2 June 2025, potentially out of time.

The Legal Framework

Under s 366 of the Fair Work Act 2009 (Cth), applications involving dismissal (whether unfair dismissal or general protections dismissal) must be lodged within 21 days. The Commission may extend time only if there are exceptional circumstances. The factors considered include:

• Length of delay

• Reason for delay

• Whether the employee took steps to dispute the dismissal

• Prejudice to the employer

• Fairness between the parties

This mirrors unfair dismissal law, where strict adherence to time limits is equally critical.

Key Findings

1. Date of dismissal:The Commission found that Mr Haidar was clearly informed on 5 May 2025 that he was dismissed, paid in lieu of notice, and told not to return to work. Therefore, the dismissal took effect on 5 May, not 12 May.

2. Representative error:Mr Haidar relied on advice from his paid agent, who incorrectly told him he had 21 days from 12 May. The Commission emphasised that while employees must generally act diligently, they can sometimes be excused where delay is entirely caused by their representative. Authorities such as Clark v Ringwood Private Hospital (1997) 74 IR 413 and McConnell v Tony’s Plumbing Service (2011) 202 IR 59 show that representative error can justify an extension where the employee is blameless.

3. Exceptional circumstances:Commissioner Harper-Greenwell concluded that Mr Haidar was misled by his representative and had otherwise acted promptly to contest the dismissal, including contacting Sydney Tools to seek reinstatement. This amounted to exceptional circumstances warranting an extension.

4. Merits left unresolved:The Commission did not assess whether the dismissal was harsh, unjust, or unreasonable—i.e., an unfair dismissal—because merits are not determined at the extension stage. The case will now proceed to conciliation.

Why This Matters for Unfair Dismissal Claims

The decision is important for workers and advocates in the unfair dismissal space:

• Probation is not a shield: Even probationary employees can pursue remedies, although they may not strictly fall under unfair dismissal if they haven’t completed the minimum employment period. General protections dismissal claims can be an alternative.

• Strict deadlines: The 21-day limit applies equally to unfair dismissal and general protections dismissal. Missing the deadline usually means losing the right to a hearing.

• Representative error as exceptional circumstances: Unfair dismissal applicants who rely on professional representatives may still be excused for late lodgement if they can prove the delay was entirely outside their control.

• Substance vs procedure: Many unfair dismissal applicants wrongly believe that alleging harsh treatment is enough. This case shows that procedural compliance (lodging in time) is as important as the merits.

  
  

Practical Lessons

• For employees: Do not delay. File your unfair dismissal or general protections application within 21 days, even if you are unsure about representation.

• For employers: Document termination clearly, including the exact date dismissal takes effect, to avoid disputes about timing.

• For advocates: Incorrect advice can create liability and jeopardise a client’s unfair dismissal case. Precision is essential.

Conclusion

The case of Haidar v Sydney Tools underscores how critical it is for workers to act quickly after a dismissal. While Mr Haidar was granted an extension due to representative error, most unfair dismissal claims will not survive late filing. This is a timely reminder that the line between unfair dismissal and general protections dismissal is narrow, but the deadlines are unforgiving.

For anyone considering an unfair dismissal claim, the lesson is simple: do not wait, lodge within 21 days, and get accurate advice.