Full Case ReviewXu v The Servants of Jesus Community Pty Ltd [2025] FedCFamC2G 1369

Introduction

The recent Federal Circuit and Family Court decision in Xu v The Servants of Jesus Community Pty Ltd [2025] FedCFamC2G 1369 is a critical reminder of the strict timeframes and evidentiary standards that apply when an employee seeks to challenge an alleged unfair dismissal through general protections claims. While Ms Xu argued that her termination was retaliatory and unlawful, the Court ultimately dismissed her application for an extension of time. The ruling highlights the importance of carefully distinguishing between claims of unfair dismissal, general protections, and unlawful termination.

Factual Background

Ms Xu commenced employment with the Servants of Jesus Community (SOJ) in October 2022 as a finance manager. Following repeated disputes with management about the processing of pastor expense claims and her refusal to comply with what she believed to be unethical or unlawful accounting practices, she was issued with a show cause letter in November 2024. By mid-November, her employment was terminated for alleged serious misconduct.

Full Case ReviewXu v The Servants of Jesus Community Pty Ltd [2025] FedCFamC2G 1369

Ms Xu subsequently lodged a general protections application involving dismissal with the Fair Work Commission (FWC) under s 365 of the Fair Work Act 2009 (Cth) (FW Act). Conciliation failed, and a certificate under s 368(3)(a) was issued on 31 January 2025. Under s 370(a)(ii), she had 14 days (until 14 February 2025) to commence proceedings in the Federal Circuit and Family Court. Instead, she filed 12 days late, seeking an extension.

The Application for Extension of Time

At its core, the case was not a substantive hearing of Ms Xu’s unfair dismissal allegations, but rather whether her late filing should be excused. The Court, following the well-established principles in Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, reiterated that:

1. Time limits are strict and must be complied with.

2. Special circumstances are not required, but there must be an adequate explanation for delay.

3. Merits of the unfair dismissal or general protections claim may be considered.

4. Prejudice to the respondent must be weighed.

The Court found that Ms Xu’s explanations—her medical conditions, refusal of legal aid, and lack of legal knowledge—were insufficient. She had managed to file her earlier FWC application on time, attend conciliation, and correspond with lawyers. Therefore, she was in a position to file within the statutory 14 days.

Key Authorities Considered

The Court drew on a series of important cases when assessing the interaction between unfair dismissal, general protections, and unlawful termination:

• Board of Bendigo Regional Institute of TAFE v Barclay [2012] HCA 32 – regarding adverse action and the meaning of “because”.

• Qantas Airways Limited v Transport Workers’ Union of Australia [2023] HCA 27 – clarifying the scope of “is able to make a complaint” under s 341.

• Monash Health v Singh [2023] FCAFC 166 – on pleading requirements for general protections matters.

• Commonwealth Bank of Australia v FSU (2007) 157 FCR 329 – on “injury in employment” in the adverse action context.

• Russell v Trustees of the Roman Catholic Church, Archdiocese of Sydney [2007] NSWSC 104 – emphasising the obligation of employees to follow lawful and reasonable directions.

The Court also referred to the more recent Fahda v Bupa HI Pty Ltd [2025] FedCFamC2G 1316, reinforcing the high threshold for extending time in general protections dismissal cases.

Comprehensive Assessment

The case illustrates the difficulty employees face when conflating unfair dismissal with general protections. Ms Xu argued her termination was effectively an unfair dismissal because she raised workplace rights concerning tax compliance. However, the Court noted:

• Unfair dismissal under s 385 of the FW Act requires showing termination was harsh, unjust, or unreasonable.

• General protections dismissal claims under Part 3-1 require proof that adverse action was taken because of a protected attribute or workplace right.

• Unlawful termination claims under s 772 are barred by s 723 if a general protections claim is available.

While Ms Xu may have believed she suffered an unfair dismissal, the Court found her pleadings lacked particularity. Her allegations that directions were unlawful or unethical were not sufficiently supported. In contrast, SOJ maintained she was terminated for refusing lawful and reasonable directions—a justification that undermines an unfair dismissal claim unless the directions were clearly unlawful.

The Role of Unfair Dismissal Principles

Although the Court did not directly determine an unfair dismissal application, unfair dismissal principles permeated the analysis:

• The requirement for employees to follow lawful and reasonable directions is central to unfair dismissal jurisprudence.

• The need for timely action is identical in unfair dismissal and general protections dismissal cases (21 days and 14 days, respectively).

• Procedural fairness, while relevant to unfair dismissal, is not enough to establish a general protections breach.

The case therefore demonstrates how employees may mistakenly pursue general protections remedies where their real dispute sounds in unfair dismissal. The problem is compounded by strict deadlines: if an unfair dismissal application is out of time and not excused, general protections cannot be used as a fallback unless the statutory tests are met.

Practical Takeaways

1. For employees: If you believe you have been unfairly dismissed, lodge within the strict timeframes. Do not assume medical conditions, financial stress, or lack of legal knowledge will excuse late filing.

2. For employers: Maintain clear documentation of lawful and reasonable directions. This case shows that non-compliance with such directions may justify termination and defeat both unfair dismissal and general protections claims.

3. For practitioners: Distinguish carefully between unfair dismissal and general protections remedies. Pleadings must be precise, particularly regarding causation.

Conclusion

The Court ultimately dismissed Ms Xu’s application, leaving her without recourse to pursue her alleged unfair dismissal or general protections claims. The ruling underscores the need for precision, timeliness, and evidence. Unfair dismissal remains one of the most common disputes in the Fair Work system, but it is also one of the most time-sensitive. This case reinforces that even potentially meritorious claims of unfair dismissal or unlawful termination can be lost simply through delay.