[5] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd

s.365 - General protections

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

[1] On 23 February 2026, Mr Kapil Narwal 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 7 August 2025[1] and he made this application on 23 February 2026. The 21-day time limit was on 28 August 2025, therefore the application is out of time by 179 days. For the application to proceed, an extension of time to lodge the application is required.

[4] Section 366(2) of the Act 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 states it was due to his pursuit of an internal review processes to understand the reason for his dismissal. Further he said that he suffered emotional and financial stress after the dismissal and was unaware of the 21-day time limit to file an application.

• [7] There must be a credible reason for the delay.[4] Ignorance of the time requirement to file an application is neither out of the ordinary, unusual or special. The Applicant fails to provide any particulars concerning the steps taken for the internal review process, nor the stress following the dismissal. Losing one's job will naturally create hardship and a level of stress, however, the reasons given fail to justify the length of delay warranting an extension on exceptional grounds. In fact, no exceptional circumstances are evident. The bar to an extension of time is a high one and the material submitted on the reason for the delay does not account for the period of 179 days. 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) of the Act ought to be considered in assessing whether there are exceptional circumstances.

[9] As to s.366(2)(b) of the Act, steps taken to dispute the dismissal, the Applicant contends that he sought clarification. In these circumstances, the Applicant did not challenge his dismissal, nor taken any evident steps to dispute the dismissal.

• [10] I accept there might be unlikely to be any prejudice to the employer, despite the lengthy delay, nevertheless at best this is a neutral consideration.[6] As to fairness (s.366(2)(e) of the Act) the Applicant did not satisfactorily address this consideration. 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]

[11] As to the merits (s.366(2)(d) of the Act) the Applicant states he exercised his rights by raising health and safety concerns. Other than this broad statement, no particulars were provided. I observe that the alleged workplace rights do not accord with the letter of termination which raises serious allegations of tenant packages not being accounted for and what appears to be an empty bag that the Applicant brings onto the premises, but when he departs it appears quite full. A further serious allegation against the Applicant is his judgement in permitting an underage student tenant to drive away from the premises in the Applicant's motor vehicle. According to the letter of termination the Applicant was provided with the allegations, evidence against him and the opportunity to respond. An investigation process appears to have been thorough. The reason for the dismissal was that the Applicant failed to demonstrate the inherent requirements of a Night Manager which has resulted in loss of trust and confidence. In consideration of the detail contained in the letter of termination, the Applicant in my view will not easily demonstrate merit for his application. I do not consider merit to weigh in favour of an extension of time.

[12] In conclusion, I need to be satisfied that there are exceptional circumstances. The balance of 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) of the Act, 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) of the Act. Accordingly, the matter is dismissed.

[1] Letter of Termination dated 7 August 2025 attached to application Form F8.

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

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

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