Fair Work Act 2009

s.365 - General protections

Application to deal with a general protections dismissal dispute - late application - significant delay - no exceptional circumstances - extension of time not allowed

[1] On 10 February 2026, Ms Alejandra Rosero applied for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (Cth) (the Act). Ms Rosero alleges that she was dismissed orally without notice on 14 July 2025. Although there is separate reference in the application to dismissal on 14 October 2025, this is an obvious typographical error when regard is had to the supporting materials filed.

[2] The application is 189 days late. The question is whether to allow additional time for the application to be made.

[3] I have decided that no extension of time can be allowed for the application to be made. The application will be dismissed. These are my reasons.

[4] Application under s.365 of the Act must usually be made within 21 days of dismissal. The Commission can extend the filing period if satisfied that there are exceptional circumstances (s.366(1)(b)), taking into account the matters listed in s.366(2). Section 366(2) provides:

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

(a) the reason for the delay; and

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

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

(d) the merits of the application; and

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

[5] Reason for delay and action to dispute the dismissal: Ms Rosero explains that at the time of dismissal she was on maternity leave and breastfeeding a newborn baby. The dismissal occurred orally and without notice, and after she sought clarification, she waited for a formal response. Ms Rosero also states that shortly after she sought this clarification, her daughter experienced medical complications requiring hospital care. Ms Rosero submits that these circumstances significantly affected her ability to seek immediate legal advice or understand the strict 21-day timeframe for applying for an unfair dismissal remedy. She also states that the combined impact of the dismissal of both her and her husband on the same day, including financial instability and caring responsibilities, contributed to the delay and that she acted as soon as reasonably possible once she understood her legal rights.

[6] There is no medical evidence of the duration and extent of Ms Rosero's child's medical complications. This, together with the contemporaneous dismissal of both Ms Rosero and her husband, is capable of being described as exceptional circumstances. The reasons for delay are otherwise unexceptional. Although I accept that the circumstances of maternity leave and caring for a newborn may have contributed in part to the delay, they do not explain why it was not available to Ms Rosero to apply to the Commissioner earlier than 189 days after the expiry of the filing period (and 210 days after the dismissal). Ignorance of the statutory timeframe is not an exceptional circumstance and nor is waiting on another party for a response to communication about one's dismissal.

[7] Action taken to dispute the dismissal: Ms Rosero explains that she wrote to the Respondent on 28 July 2025, 14 days after the dismissal asking for a formal explanation of the dismissal. Although again the application refers to this occurring on 28 October, the supporting materials confirm that the email was dated 28 July 2025. Ms Rosero also sent follow up communications on 6, 8 and 15 August 2025 but received no response. Ms Rosero said she was attempting to resolve the matter directly before seeking external assistance. This is not an exceptional circumstance and there is no indication of any further action being taken after 15 August 2025 to dispute the dismissal until the application was lodged in February 2026.

[8] Prejudice to the employer: The length of the delay is significant. It can be inferred that at least some prejudice will arise for the Respondent if the application proceeds given the passage of time and the lack of action to dispute the dismissal between 15 August 2025 and February 2026.

[9] Merits: Ms Rosero submits that she was dismissed while on maternity leave and breastfeeding, without notice, warnings or investigation. No written explanation was provided despite her requests. On this basis, Ms Rosero suspects that she was dismissed in connection with the exercise of her protected workplace rights, and that the consequences for her family were serious. There is some infelicity of language in the application: Ms Rosero asserts that she was dismissed while exercising workplace rights, rather than because the exercise of those rights. As Ms Rosero is self-represented, I will read the allegation as asserting that the dismissal was for one or more prohibited reasons. However, there is insufficient evidentiary material before the Commission to assess the merits of the case in any meaningful way. The merits are a neutral consideration.

[10] Fairness as between Ms Rosero and another person in a like position: Ms Rosero submits that her husband was dismissed on the same day without explanation. Far from indicating differential treatment, it appears that Ms Rosero and her husband were both treated in the same way. In the circumstances, this is not a relevant consideration.

[11] On balance, I am not satisfied that there are relevant exceptional circumstances in connection with the late filing of the application. There is an inadequate explanation for a significant filing delay, and a lack of detail about circumstances capable of being considered exceptional. Ignorance of the law is a common rather than an exceptional circumstance. Some action was taken in the weeks after the dismissal to put the Respondent on notice of a dispute, and then no action at all for a further 5 months. There is the potential for prejudice to the Respondent if the application proceeds. The merits are a neutral consideration for the reasons above, and fairness of position as between Ms Rosero and others is not a relevant consideration in the circumstances.

[12] It follows that no additional time for the application to be made can be allowed.

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