s.365 - General protections

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

[1] On 21 January 2026, Ms Lori Gazeley lodged an application under s.365 of the Fair Work Act 2009 (the Act) in which she alleges she 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 5 November 2025[1] and she made this application on 21 January 2026. The 21-day time limit was on 26 November 2025; therefore, the application is out of time by 56 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 being unaware of the 21-day timeframe for lodging the application. Further the Applicant took time to collate her information and met with Justice Connect on 19 December 2025. Despite contacting Justice Connect, the Applicant also contacted the Fair Work Ombudsman and Fair Work Commission but lodged incorrectly an unfair dismissal application. The Applicant refers to the two Employment Separation certificates she received which required careful review.

• [7] There must be a credible reason for the delay,[4] and mere ignorance of the statutory time limit is not an exceptional circumstance.[5] On the material submitted, the Applicant was clear on the date of the dismissal and the reason for the two separation certificates is because she challenged the reason for the dismissal on the first form. A second form was received backdated with a reason consistent with the reason given to the Applicant when she was dismissed, but the date of dismissal remained unchanged. The Applicant's reasons for the 56-day delay are not credible to justify an extension of time. 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.[6] 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 was dismissed after raising IT issues but following her dismissal she had sought clarification regarding the dismissal, raised unresolved access issues and sought further documentation. Despite these efforts the Applicant did not challenge her dismissal with the Respondent, nor put the Respondent on notice that the dismissal would be contested. These reasons do not weigh in favour of an extension of time.

• [10] I accept the Applicant's contention that 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 submits by allowing her application it would be fair to other persons "as it reinforces the importance of accurate record keeping, procedural fairness and clarity in the termination process." 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] The submissions do not accord with the fairness consideration and therefore fails to weigh in support an extension of time.

[11] As to the merits (s.366(2)(d)) the Applicant says the dismissal lacks procedural fairness and accuracy of the termination process. In support of these submissions she refers to a number of matters including her termination letter which states that it was issued via email whereas it was handed to her in a meeting that she initiated about IT issues, errors in the Employment Separation form and the reason of redundancy did not accord with wording in the contract of employment. Each of the submissions raised by the Applicant concern procedural fairness and alleged errors made in the termination process. This is a general protections application, not an unfair dismissal application. While the Applicant alleges that her dismissal followed or was because of her raising IT issues, she places significance on the lack of procedural fairness. A suggested causal link between the IT issues and the dismissal appear weak for a general protection matter, therefore the asserted merits of the application do not weigh in favour. At best the merit consideration is a neutral factor in the extension of time application.

[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 as provided for in s.366(2). Accordingly, the matter is dismissed.

[1] Form F8 and Letter of Termination dated 5 November 2025.

[2] [2011] FWAFB 975.

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

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [23].

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

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

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

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