s.365 - General protections

General protections application involving an alleged dismissal - application filed outside 21 day time limit - no exceptional circumstances - application dismissed.

[1] On 25 January 2026, an application was lodged by Mr Alexander Dines (Applicant) under s 365 of the Fair Work Act 2009 (Cth) for the Fair Work Commission to deal with a general protections dispute involving a dismissal.

[2] Section 366(1) of the Act states that a general protections application involving a dismissal must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 366(2). The Applicant's dismissal took effect on 19 December 2025. The 21 day time period expired at midnight on 9 January 2026. The application was therefore filed 16 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 366(2).

• [3] The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are 'exceptional circumstances'. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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.[2]

[4] The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

[5] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

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

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

[6] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.

• [7] The delay required to be considered in s 366(2)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

• [8] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[5]

[9] The Applicant provided the following explanation for the delay in his general protections application:

• The dismissal occurring immediately before / during the Christmas-New Year period, when:

• Legal services were closed or operating in reduced capacity

• The Applicant was informed the dismissal was due to "redundancy" and reasonably believed this was genuine at the time.

• The Applicant only later became aware that the Respondent had retrained another worker to perform the same Line Pump Operator duties, revealing the role had not ceased.

• Financial and emotional stress following sudden loss of employment.

Once the Applicant became aware the redundancy may not have been genuine, they acted as soon as practicable."

[10] I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the 16 day delay in filing his general protections application. Completing a general protections application is a simple process. It does not require legal advice or assistance. The fact that another employee was trained to perform duties that were being performed by the Applicant prior to his redundancy does not, of itself, demonstrate that the redundancy was not genuine. A genuine redundancy may take place in circumstances where an employee's duties are assigned to remaining employees. The question is whether the position has been made redundant, not whether the duties of the position still need to be performed by somebody in the business. I have sympathy for the financial and emotional stress which the Applicant experienced following the sudden loss of his employment. Many employees experience such stress. However, the information provided by the Applicant does not suggest that he was impaired to such an extent that he could not prepare and lodge his application in the Commission within 21 days of his dismissal taking effect.

[11] The absence of an acceptable or reasonable explanation for the delay in lodging the application weighs against a conclusion that there are exceptional circumstances.

[12] The Applicant did not take any action to dispute his dismissal. This is a neutral consideration.

[13] I cannot identify any significant prejudice that would accrue to the respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

[14] The Act requires me to take into account the merits of the application in considering whether to extend time.

[15] The Applicant contends that he has strong prospects of success because he was dismissed shortly after making a complaint about unpaid entitlements and another employee is performing his role.

[16] Whether the Applicant's general protections claim would be likely to succeed would depend on a full examination of all the facts and circumstances. They are not presently before the Commission. Accordingly, I will treat the merits of the application as neutral.

Fairness as between the person and other persons in a like position

[17] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.

[18] If this application were permitted to go ahead, it would turn on its own facts and circumstances. I do not consider that the question of fairness between the Applicant and other persons in a like situation has a material bearing on whether there are exceptional circumstances to justify the granting of an extension of time.

[19] I have assessed the Applicant's request for an extension of time on the basis of the information provided in his application. The application has not been served on the respondent.

[20] Taking into consideration the matters I am required to take into account under s 366(2) of the Act and all of the matters raised in the Applicant's application, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. In my view, the circumstances of this case are not out of the ordinary course, unusual, special or uncommon.

[21] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2). The application is therefore dismissed.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Long v Keolis Downer [2018] FWCFB 4109 at [40]

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31]

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]

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