s.365 - Application to deal with contraventions involving dismissal

Application to deal with general protections contraventions involving dismissal - jurisdictional objection - filed out of time - extension of time not granted - application dismissed.

• [1] Mr Adam Houten (the Applicant) made a General Protections application pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with alleged general protections contraventions involving dismissal. The Applicant submitted that his employment was terminated by Checkmate Technology Pty Ltd (the Employer/Respondent) on 6 January 2025.

• [2] The Respondent in their Form F8A - Response to a general protections application involving dismissal, raised two jurisdictional objections: that the application was lodged out of time and that the Applicant was not dismissed within the meaning of s.386 of the Act (on the basis that he was not an employee of the Respondent).

• [3] The Applicant had two agreements with the Respondent; the first was from 16 November 2022 to August 2023, and the second was from 1 September 2023 to 6 January 2025. The Respondent stated that these agreements were engaged in with the Applicant as an independent contractor. The Applicant maintained he was an employee of the Respondent.

• [4] The Applicant filed his application on 21 May 2025; this was over four months since the conclusion of the second agreement between the parties. The Respondent stated that a 7 day notice period was given. The Applicant submitted that Monday, 6 January 2025 (being the end of the agreement) was his date of dismissal. Using this date, his application should have been filed by Tuesday, 28 January 2025 (noting that Monday, 27 January 2025 was a public holiday). Accordingly, the Applicant sought an extension of time pursuant to s.366(1)(b) of 113 days. This decision relates to this jurisdictional issue only regarding the required extension of time to accept the application. The relevant legislative provisions are set out below.

• [5] The matter was listed for a Determinative Conference on Wednesday, 2 July 2025 by Microsoft Teams Video. Directions were set for the provision of submissions prior to the Determinative Conference in relation to the jurisdictional objection. The Directions included the relevant legislation for the consideration of this matter as set out in s.366.

(1) The application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are 'exceptional circumstances', taking into account:

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position."

• [6] And the threshold test of ''exceptional circumstances'' in relation to the reasons for the delays, must be met. The definition, as set out below was provided to the parties in the Directions:

"Exceptional circumstances are not regularly, routinely or normally encountered.[1] exceptional circumstances may be a single exceptional event or a series of events that together are exceptional.[2] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances."[3]

• [7] The Applicant was self-represented. Mr Michael Whitbread of Counsel, with his instructing solicitor Ms Emma Burrell-McDonald from Inside Eagles, sought permission to appear as the legal representatives for the Respondent. Submissions were sought requiring each party to file submissions addressing s.596 of the Act on the issue of the Respondent's legal representation. The Applicant objected to the Respondent being legally represented. After consideration, legal representation of the Respondent was granted pursuant to s.596(2)(a) of the Act, on the basis that legal representation would assist with the efficient presentation of the material in the jurisdictional objection.

• [8] Mr Houten tendered two witness statements and Ms Veronica Finarelli, the Applicant's partner, tendered a witness statement. The Respondent sought to cross-examine the Applicant but did not wish to cross-examine Ms Finarelli. Ms Finarelli, with the consent of the Respondent, assisted the Applicant with his submissions during the Determinative Conference.

• [9] Mr Peter Hooper, the Chief Operating Officer of the Respondent in Auckland, attended the Determinative Conference and filed a witness statement. Mr Dave Johnson, the Commercial Director of the Respondent, also filed a witness statement, but was not required to be present at the Determinative Conference.

Extension of Time - Section 366

• [10] In order for the jurisdiction to be established for the Commission to hear the s.365 application, it is necessary for the Applicant to obtain an extension of time. In assessing an extension of time, pursuant to s.366 (2) for the Commission to allow for a further period of time, to accommodate the delay with filing, the Commission must be satisfied that 'exceptional circumstances' exist, taking into account the criteria in s.366 (2):

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position."

• [11] In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when 'exceptional circumstances' are established, there remains discretion to grant or refuse an extension of time.[4] The Full Bench observed that it will come down to a consideration of whether, given the 'exceptional circumstances' found, it is fair and equitable that time should be extended.

• [12] The Act does not define 'exceptional circumstances' per se, but guidance can be taken from previous decisions. In the decision of Nulty, the Full Bench said that in order to be 'exceptional', the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[5] '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 can be considered exceptional.[6]

• [13] In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (Stogiannidis),[7] a Full Bench of the Fair Work Commission provided clarification regarding the assessment of 'exceptional circumstances':

"As we have mentioned, the assessment of whether 'exceptional circumstances' exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional"[8]

• [14] The following statutory criteria are to be considered in the application for the extension of time. The Commission may allow a further period of time if the Commission is satisfied that there are 'exceptional circumstances'; taking into account the following criteria:

• [15] The Applicant confirmed that he did not consult a lawyer or the Fair Work Ombudsman until 21 January 2025 (15 days after the alleged dismissal). The Applicant submitted that the delay in the lodgement of his application was a result of his separate legal advisers and the Fair Work Ombudsman not providing him with information of the 21 day timeframe for lodgement, and that he was confused about his employment status. The Applicant emphasised that he had made various attempts to contact the Respondent to discuss his matter.

• [16] The Respondent submitted that ignorance of a statutory time limit is not an exceptional circumstance.[9] The Respondent submitted that although the Applicant referenced his legal representative and the Fair Work Ombudsman not advising him about a 21 day statutory timeframe, that the Applicant was not seeking advice or information from them on general protections applications involving dismissal, and instead he was enquiring as to other matters.

• [17] On 21 January 2025, the Applicant contacted the Fair Work Ombudsman in relation to if he would be considered an employee or contractor. The Applicant stated that he was directed to the Fair Work Ombudsman website regarding information on the relationship between employees and independent contractors. The Applicant's position as submitted in this case was that he was not informed about a 21 day timeframe for lodgement either on the phone or by the website link. In fairness, the Applicant confirmed that the issues he did seek information on were the nature of his contract with the Respondent and the relevant payment of the commissions he considered he was owed.

• [18] The Applicant further submitted that on 21 January 2025 that he contacted a lawyer; he stated that they did not provide him with advice in relation to the 21 day timeframe. The Respondent sought an Order to Produce on 'Any Documents recording any advice or communication to Adam Houten of the 21-day time limit in which to lodge a general protections application involving dismissal (or an application for a remedy from an unfair dismissal).' The Order was granted. The lawyers provided the Commission with the below response:

"we advise that we have reviewed our file on this matter and have no 'document recording any advice or communication to Adam Houten of the 21-day time limit in which to lodge a general protections application involving dismissal (or an application for a remedy from an unfair dismissal)."

• [19] It is reasonable that he was not provided with any advice on the 21 day timeframe given that on the Applicant's evidence and submissions, set out that, as stated above, he sought advice in relation to if he was a contractor or employee, and in relation to having the commissions he considered he was entitled to paid to him.

• [20] The Respondent submitted that from 7 February 2025, that McDonald Legal had been corresponding with them in relation to claims that are different to the Applicant's general protections application (they submit this was mainly in relation to an alleged breach of contract in respect of unpaid commissions). Therefore, the Respondent submitted that the Applicant had elected to pursue other claims.

• [21] The Applicant stated that on 9 May 2025, he called the Fair Work Ombudsman again and this was the first time that he was informed of the 21 day timeframe for lodgement (this is over four months since the alleged dismissal date). The Applicant submitted that "[u]pon being made aware of the strict 21-day timeline, [he] immediately lodged a formal complaint". This is not the case. The Applicant did not lodge his application until 12 May 2025, this is 12 days after he stated that he was informed of the 21 day timeframe. That is over half the time of the 21 day timeframe for lodgement, which he was aware that he was already well over. The Applicant stated that this extra delay was because he was self-represented, had to understand the Commission process and forms and then assemble this. The Applicant could have lodged his application and provided further information at a later stage. The Respondent submitted that the Applicant did not explain this further delay.

• [22] The Applicant further submitted that he was under significant pressure during this period, including seeking medical and psychological support, and he stated that this hindered his ability to lodge his application. The medical evidence has been taken into account. However, in matters where the Commission is commonly considering circumstances where employees have lost their employment, it is not irregular for applicants to file medical evidence of this nature. Consideration of the medical evidence in this matter has to be balanced with the fact that the Applicant was pursuing other legal matters in different jurisdictions at the same time.

• [23] The Applicant had not provided adequate reasons for the period of the significant delay. The Applicant was not advised of the 21 day timeframe for lodgement because his inquires with his legal representatives and the Fair Work Ombudsman were not in relation to an alleged dismissal. When the Applicant became aware of the 21 day timeframe, there was a further significant delay that is not explained adequately. The Applicant could have submitted and then provided further information, but he did not do so. This matter weighs against the Applicant being granted an extension of time.

(2)(b) any action taken by the person to dispute the dismissal

• [24] The Applicant was informed on 6 January 2025 that the agreement between the parties was being cancelled as the Respondent had signed a new agreement. The next day on 7 January 2025, he wrote back to the Respondent stating that:

I appreciate the new direction that Checkmate has decided to go with its outbound strategy; however, I thought as I have built strong relationships as well as friendships with the team over the past 2.5 years that I receive this news over a phone call at least, especially at this time of year.

I thought that now that I am finally at the threshold of the agreed contract for earning commissions (which is tied to Checkmate's sales team activity) and now that I can see the fruits of my efforts we could have continued with the agreement but without the discretionary retainer as a minimum as I knew this was only temporary to be incentivised to keep providing services until it can be moved to a purely 'commission only role'.

Anyway, let me know when you are free to catch up in the next few days to discuss what is going to happen with my net commissions moving forward and how we can reconcile these along with the still open opportunities that are still in play.

• [25] This email displays that the Applicant did not dispute the cancellation of the agreement and was concerned about his alleged outstanding commissions instead. The Applicant after this email made further attempts with the Respondent to enquire about the commissions. The Respondent disputed this entitlement.

• [26] The Applicant submitted that he did take action to dispute the dismissal as his legal representatives had sent letters to the Respondent; he argued that despite these referring to a breach of contract, that this does not refute the idea that this correspondence was about the alleged dismissal. The Respondent submitted that the Applicant and his lawyers in correspondence to the Employer in raising the payment of commissions only does not relate to an alleged dismissal. On those facts, the Respondent therefore concluded that his alleged dismissal was only pursued from 21 May 2025 being the date when it was raised with the lodgement of this application.

• [27] From the evidence, the Applicant from the moment he found out about the agreement cancellation until the lodgement of this application, only took action against the Respondent in relation to the commissions he considered he was owed. There was no action taken during this period in relation to his alleged dismissal for adverse action. The Applicant on 7 January 2025 had explicitly told the Respondent that there was "no worries" about the cancellation of the agreement and that he "appreciate[d] the new direction" they were going with. The only criticism the Applicant had at that stage was that he would have liked the news to be conveyed to him via telephone rather than by email and that he considered he was owed commissions. Given the Applicant's assessment at that stage of the agreement coming to an end, and that the only objection to this conveyed to the Employer at this time was outstanding commissions, this matter weighs against the Applicant later arguing that this period of time should be considered in support of the grant of an extension of time. The circumstances present that it was only after 21 May 2025 that the Applicant focused on making an application of this nature, previously he had sought advice and had discussions on pursuing unpaid commissions and on whether he had been a contractor or employee.

(2)(c) prejudice to the employer (including prejudice caused by the delay)

• [28] The Applicant submitted that there would not be a prejudice to the Employer. The Respondent submitted that they would incur prejudice in relation to the time and cost of defending the application after a relatively significant period of time had elapsed.

• [29] There is no evidence that the extension would cause prejudice to the Respondent other than the usual prejudice of defending a claim. This is considered to be a neutral factor.

• [30] The parties had completely different views of whether the Applicant was an employee or independent contractor and in relation to the alleged adverse action. In the decision of Telstra-Network Technology Group v Kornicki,[10] the Full Bench of the Australian Industrial Relations Commission said, in respect to the merits of an application:

"If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the Applicant to establish that the substantive application was not without merit."

• [31] However, a full examination of the roles and significant evidence on the merits of an application is rarely called at an extension of time hearing.

• [32] Only limited detail was submitted in relation to the allegations given the approach of the Commission to be cautious in relation to considering the merits of the application, premature to form a determination at this stage. This is a neutral consideration.

(2)(e) fairness as between the person and other persons in a like position

• [33] At the Determinative Conference, the Applicant submitted that the case of Ellis v Melton Shire Council[11] should be considered against the facts of his case_._ It is relevant to note that this Decision concerned previous legislation where the timeframe for lodgement was 60 days, rather than 21 days. In that Decision, an extension of time was granted where the application was made 48 days out of time. The evidence in that matter was that the applicant "suffered from a severe impairment to her cognitive capacity in the form of psychological and associated physical consequences arising from the termination of her employment by the respondent which can properly be considered well beyond the usual level with might be associated with the termination of an employee's employment."[12] The Applicant submitted that he was diagnosed with severe depression and anxiety in April. However, during the delay in filing his application with the Commission, he was clearly pursuing other claims and had capacity to do this; the case raised during the Determinative Conference is not analogous to the facts of this matter.

• [34] The Respondent stated that this criterion supports their position that no extension of time should be granted. The Respondent submitted that in a recent Decision, an extension of time was not granted where the applicant in that matter had legal representation but the representatives engaged in direct correspondence with the employer rather than lodging an application with the Commission.[13] In that Decision, the application was only lodged 17 days out of time, which is significantly less than the Applicant's.

• [35] Given the significant length of delay of the Applicant in lodging his application as compared to the statutory timeframe, and also other Decisions of the Commission where an extension was not granted with the delay being significantly less, this factor weighs against the granting of an extension of time.

• [36] I have weighed each of the matters I am required to consider and have determined that there are no 'exceptional circumstances' in this case that justify an extension of time beyond the 21-day statutory timeframe to accommodate the significant length of delay.

• [37] In considering all of the criteria pursuant to s.366(2), the period of delay was significant and the circumstances of the delay were not considered to be exceptional and there were unexplained periods within the overall period of the delay. The Applicant was definitely aware of the timeframe on 9 May 2025 and there was still a further period between this time and the lodgement on 21 May 2025 of 12 days (which is more than half the statutory timeframe). For all of the reasons set out, the discretion to extend the statutory time limit is therefore not exercised to grant a further period of time to accept the application. The application made pursuant to s.365 is dismissed.

M Whitbread of Counsel and E Burell-McDonald of Inside Eagles, for the Respondent

[1] Ho v Professional Services Review Committee No 295 [2007] FCA 388, 10 at [25].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [38] ('Stogiannidis').

[4] [2011] FWAFB 975; (2011) 203 IR 1, 6 at [15].

[9] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, 14.

[10] (1997) 140 IR 1.

[11] [2012] FWA 1033.

[13] Scholtz v All Skills Resourcing Pty Ltd [2025] FWC 1326.

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