s.365 - Application to deal with contraventions involving dismissal

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

[1] On 27 November 2025 Ms Kady McCormick lodged an application under s.365 of the Fair Work Act 2009 (the Act) in which she alleges the dismissal was 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 alleges that she was forced to resign on 1 November 2025.[1] The 21-day time limit was on 22 November 2025, therefore the application is out of time by 5 days. For the application to proceed, an extension of time 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 (Nulty)[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 one 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 filing an unfair dismissal application and not realising that she had not met the minimum employment period of 6 months. She submits that she was confused over the new ownership of the business which commenced on 17 September 2025. The Applicant says that she commenced working at the bakery in 2023, but the new owners only took over on 17 September 2025. Further the Applicant submits that she was experiencing emotional stress due to alleged bullying, intimidation and public humiliation.

• [7] There must be a credible reason for the delay.[4] The Applicant relies on her submissions of emotional distress, yet no evidence was submitted to demonstrate an inability to file her application either on time or using the correct application form. It is important to take into consideration all of the circumstances and failure to file a general protections application in the first instance rather than an unfair dismissal application is not a credible explanation nor exceptional circumstance. Reliance on ignorance over the type of application to file is not an exceptional circumstance. Therefore, I consider the reasons given for the delay do not weigh in favour.

• [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 she contacted her employer seeking payment of her entitlements and obtained advice from "Fair Work". These actions relate to actions seeking payment of entitlements rather than challenging the alleged "forced resignation. I do not consider this factor to weigh in support.

• [10] I accept there is unlikely to be any prejudice to the employer, but this is a neutral consideration.[6] As to fairness (s.366(2)(e)) the Applicant has not addressed this consideration in the way intended, but rather mistakenly suggests her application will address "unpaid wages, unsafe practices, bullying and harassment and proper employment contracts." These assertions while unsupported, nevertheless represent a lack of understanding of the application made. 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."[7] Consequently, this consideration adds no weight to an extension of time.

[11] As to the merits (s.366(2)(d)) the Applicant repeats the assertions relied on in her argument concerning fairness. Specifically, she submits that it was due to the allegations on which she relies that led to her resignation. While the Applicant relies on s.340, 341 and 343 of the Act she has not articulated which rights were contravened and their connection to adverse action. The adverse action itself is somewhat unclear. Presumably the Applicant contends that her resignation is the adverse action. In any event, the merits in applications requiring consideration of extensions of time are not expected to be argued in detail, however, the style of submissions, on merit are highly likely to be contested. On this basis, I consider merit to be a neutral consideration.

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

[13] 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 under s.366(2). Accordingly, the matter is dismissed.

[1] Text advising her Manager that she will not be returning and expects payment of her wages and her jeans on 1 November 2025.

[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].

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

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