Fair Work Act 2009

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 13 January 2026, Mr Uthman Oluwole-Raji lodged an application under s.365 of the Fair Work Act 2009 (the Act) in which they allege they were 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 10 July 2025, and they made this application on 13 January 2026. The 21-day time limit was on 31 July 2025; therefore, the application is out of time by more than 5 months. 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, [1] 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."[2]

[6] Mr Oluwole-Raji identifies three principal reasons for the delay and takes his arguments no further. He has not provided any additional material or evidence to support the reasons he asserts to be exceptional such that they warrant an extension of time to allow his application to proceed. 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. Each circumstance of the ending of a job and its impact will be different and need to be considered on its own merits.

• [7] The first reason asserted is his lack of understanding of the circumstance and complexity of what is meant by a 'genuine redundancy' and his rights under the general protection provisions of the FW Act. He argues that because he was not aware of his rights and did not properly understand what his employer was proposing by making him redundant, his circumstances are exceptional. In this regard, I note it is well established by this Commission that ignorance or a lack of awareness of one's rights is not usually an acceptable of reason for delay.[3]

[8] The second reason for the delay is related. The Applicant identifies that at the time he was dismissed he had only just returned to work due to a workplace injury which he was focused on recovering from and that he now understands this to have been a protected return to work period within which he has been unlawfully dismissed. He argues he was seeking medical treatment at the time of being made redundant and that this also impacted his capacity to file his application on time. There is no further material advanced of support this submission.

• [9] Thirdly, and finally, the Applicant identifies the financial and emotional impact of the termination also impacted his capacity to take steps to understand his legal rights and, ultimately, making his application to the Commission, adding that soon after he became aware of his rights, he promptly took steps to exercise them. While I accept being made redundant while recovering from an injury would have been challenging, it is well established that there is nothing unusual or uncommon for an employee that has been dismissed to be confronted with stress, shock and financial hardship.[4] I also note there is no evidence to advance his submissions that the circumstances he confronted were exceptional or uncommon.

[10] I do not consider any of the reasons advanced by Mr Oluwole-Raji explaining the delay to be "unique" or "unprecedented", and I am not satisfied that they satisfy the criteria of being "out of the ordinary course", "unusual" or "uncommon". I am, therefore, not satisfied the Applicant has provided a credible and reasonable explanation for the period of the delay. As such, this factor weighs against the granting of an extension of time.

[11] As to s.366(2)(b) steps taken to dispute the dismissal, Mr Oluwole-Raji's submissions are that he only acted to dispute his dismissal after the 21-day period when he recently discovered it may have been in breach of the general protection provisions. He submits once this occurred, he acted promptly to exercise his rights. In these circumstances, it is clear the Applicant did not take steps to dispute his dismissal within the required timeframe. These reasons do not weigh in favour of an extension of time.

• [12] I accept the Applicant's contention that there is unlikely to be any prejudice to the employer, but this is a neutral consideration.[5] As to fairness (s.366(2)(e)), the Applicant did not identify any matters currently before the Commission, previously decided or persons in similar positions to his own case which might be relevant to this consideration. He argues allowing his application to proceed will uphold the rights to other employees who have also been dismissed while exercising workplace rights. 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."[6] The submissions do not accord with the fairness consideration and, therefore, fails to weigh in support an extension of time.

• [13] As to the merits (s.366(2)(d)), Mr Oluwole-Raji's general protections application seeks to identify an arguable case that he was made redundant while on a return-to-work period from a workplace injury, contrary to his rights to be protected at work. The substantive merits of this application have not been fully tested and, as identified by the Full Bench of the Commission in Kyvelos v Champion Socks Pty Ltd, the Commission "should not embark on a detailed consideration of the substantive case" for determining whether to grant an extension of time to an Applicant to lodge their application.[7] The factual context and merits of this case would need to be further scrutinised, including under cross-examination, if an extension of time was granted for the application to proceed. This being the case, I do not consider the merits of the case to tell in favour or against the granting of an extension of time, at best I consider it a neutral factor.

[14] In conclusion, I am required 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.

[15] 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] [2011] FWAFB 975.

[3] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

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

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

[7] AIRC 10 November 2000 at [14]; See also Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899 at [38].

Printed by authority of the Commonwealth Government Printer