s.365 - General protections

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - application dismissed.

[1] On 4 December 2025, Mr Daniel Justin Blay lodged an application under s.365 of the Fair Work Act 2009 (the Act) in which he alleges he was dismissed in contravention of Part 3-1 of the Act.

[2] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow.

• [3] The Applicant was dismissed on 16 September 2025[1] and he made this application on 4 December 2025. The 21-day time limit was on 7 October 2025, therefore the application is out of time by 58 days. For the application to proceed, an extension of time to lodge the application is required.

[4] Section 366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

• [5] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd [2] where it was held that:

"To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a regular occurrence, even though it can be a on off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."[3]

[6] As to the reason for the delay the Applicant says it was due to his wellbeing and seeking support for mental health issues. The Applicant attached to his application a letter from a workers compensation insurer that reviewed and granted a claim for weekly payments and medical expenses dated 5 November 2025. The letter advises that the original decision rejecting the claim was revoked on the basis of an independent medical report dated 31 October 2025. The original decision to reject the claim occurred on 27 October 2025. The nature of the injury according to the independent examination concerns behavioural and psychological dysfunction with some cognitive dysfunction involving difficulty with motivation, loss of confidence and inability to work. The letter makes further references to reduced ability to work but does not assist with information on the effect on the Applicant's capacity to file an application within the required period of 21 days from dismissal. It is evident that the Applicant made the workers compensation claim, sought review of the original decision rejecting the claim and participated in an independent medical examination all post dismissal.

• [7] There must be a credible reason for the delay.[4] While I accept that the Applicant has suffered an injury as identified in the workers compensation insurers letter, the bar to an extension of time is a high one. On the material submitted on the reason for the delay I am not satisfied that the period of 58 days is credibly explained to justify an extension of time to 4 December 2025. Therefore, I consider the reasons given for the delay do not weigh in favour of granting an extension of time.

• [8] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5] All of the factors in s.366(2) ought to be considered in assessing whether there are exceptional circumstances.

• [9] As to s.366(2)(b) steps taken to dispute the dismissal, the Applicant contends that the day after the dismissal he sought an exit meeting which was denied. He says he wanted answers to why he was dismissed because he was not given a reason other than adhering to standards. This submission appears to address the Applicant's need to understand why the decision to dismiss his employment was made, rather than an effort to challenge the dismissal directly. I do observe that the Applicant was dismissed on Tuesday 16 September 2025 and requested the exit meeting on Friday 19 September, 3 days after the dismissal.[6] I do consider this factor, at best, to weigh slightly in support of granting an extension of time.

• [10] I accept there is unlikely to be any prejudice to the employer, but this is a neutral consideration.[7] As to fairness (s.366(2)(e)) the Applicant has not addressed this consideration in the way intended, but rather says that his application will assist the employer to focus on HR management and processes to set better standards for the future. The Applicant says elsewhere in his application that the employer has no HR systems or processes and believes the manner of his dismissal was "cold and unprofessional." While the reason given regarding fairness may in his opinion favour an extension, I do not find it does. The purpose of the fairness consideration concerns "the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[8]

[11] As to the merits (s.366(2)(d)) the Applicant says his wellbeing was not considered during the dismissal. The dismissal occurred at 5pm on the last day of the probation period and the Applicant maintains there was no clear reason given for the dismissal. The Applicant submits the actual reason in his opinion is because he had in the earlier period of his employment taken a leave of absence for mental health reasons. He says that this is discrimination and in contravention of s.351 of the Act.

[12] The Applicant attached to his application correspondence to him following a mid-probation meeting which identifies various areas for improvement as a means of providing feedback and to clarify expectations. This document provides a "summary of the key points" covered in a meeting and concludes with a recognition of the personal challenges that the Applicant faced, reminding him of available supports to ensure growth in the role. Further the letter of termination states that matters previously discussed and summarised in documentation (the mid-probation meeting) had continued rather than improved in the period of probation hence the decision to terminate the employment during probation. Both documents attached to the application provide the reasons of concern which led to the dismissal. For this reason, the Applicant's submissions on merit are not enough to weigh in favour of an extension of time.

[13] In conclusion, I need to be satisfied that there are exceptional circumstances. The balance of the considerations above does not weigh in favour of exceptional circumstances in support of an extension of time.

[14] Having considered the material against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application as provided for in s.366(2). Accordingly, the matter is dismissed.

[1] Letter of termination dated 16 September 2025 delivered by hand effective the same day with 2 weeks' notice in lieu.

[2] [2011] FWAFB 975.

[4] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[6] Email response to request for an exit meeting attached to the application dated 19 September 2025.

[7] Fair Work Act 2009 s.366(2)(c).

[8] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

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