s.365 - General protections

Application to deal with contraventions involving dismissal - application made outside of statutory timeframe - representative error - exceptional circumstances - extension granted

• [1] On 4 November 2025, Mr Alkhair Mohamed made an application to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal.

• [2] Mr Mohamed was dismissed from his employment with Haynes Mechanical Pty Ltd (the Respondent) on 3 October 2025. To be within the 21-day time limit to bring a s.365 application, the application needed to have been made by 24 October 2025.

(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."

• [4] The application has been made 11 days out of time. Mr Mohamed seeks an extension of time within which to make his application.

• [5] The parties consented to the matter being determined on the papers. The Respondent does not object to the Commission granting an extension of time to Mr Mohamed.

• [6] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd,[1] where the Full Bench said:

"[10] It is convenient to deal first with the meaning of the expression 'exceptional circumstances' in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression 'exceptional circumstances' in s.394(3) and held:

'[5] The word 'exceptional' is relevantly defined in The Macquarie Dictionary as "formatting an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.'

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression 'exceptional circumstances' was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

'23. I am of opinion that the expression "exceptional circumstances" requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:

"Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances."

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CL at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25 And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:

"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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 singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.'

[13] In summary, the expression 'exceptional circumstances' has its ordinary meaning and requires consideration of all the circumstances. 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 singular occurrence, even though it can be a one 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." [footnotes omitted].

• [7] For exceptional circumstances to arise, as contemplated by s.366(2) of the Act, it is not necessary that the applicant for the extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances exist.

• [8] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[2]

• [9] The test of 'exceptional circumstances' establishes a 'high hurdle' for an application seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[3] A decision whether to extend time under s.366(2) involves the exercise of a discretion.[4]

• [10] The reason for the delay in lodging an application is a factor that must be considered. The Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[5] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, though it is ultimately a question of degree and insight.[6]

• [11] A reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[7] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[8]

• [12] Mr Mohamed commenced employment with the Respondent on 8 September 2025 and was dismissed on 3 October 2025. On 14 October 2025, Mr Mohamed made an unfair dismissal claim pursuant to s.394 of the Act. Clearly, he did not meet the minimum employment period in which to bring a claim for unfair dismissal.[9]

• [13] On 20 October 2025, the Commission emailed Mr Mohamed to inform him that he had not met the minimum employment period and invited him to provide further information as to how he had met the minimum employment period. He was informed that if the Commission did not hear from him by 3 November 2025, it was likely his case would be dismissed without further notice.

• [14] On 21 October 2025, the Commission attempted to call Mr Mohamed to discuss with him the minimum employment issue. A voicemail was left by the staff member of the Commission.

• [15] Mr Mohamed sought legal advice from Queensland Employment Lawyers. On 24 October 2025, on the last day of the 21-day period from when he was dismissed, Mr Cameron Young, Legal Director, filed a Form F8 general protections application involving dismissal.

• [16] On 4 November 2025, a Commission staff member contacted Mr Mohamed by telephone to explain that because he had lodged an unfair dismissal claim and had not withdrawn it by the time the general protections claim was made, the general protections claim was not validly made.[10] It was explained to Mr Mohamed that he would need to discontinue both applications and he would need to bring a fresh general protections claim, if he wished. The file notes detail that Mr Mohamed stated that he was confused and unsure of the process.

• [17] The Commission staff member informed Mr Mohamed that his legal representative would be contacted. Contact was then made with Mr Young. He was informed that the general protections application filed on 24 October 2025 was invalid as the unfair dismissal claim had not been discontinued. Mr Young committed to obtaining instructions from Mr Mohamed.

• [18] On 4 November 2025, both the unfair dismissal claim and the first general protections application were withdrawn, and this application was made.

• [19] Upon the matter being allocated to me, I caused my chambers to write to the parties, asking if there was any objection by the parties to the Commission finding that the reason for delay was largely due to representative error. Essentially, if Mr Young had withdrawn the unfair dismissal application on Mr Mohamed's behalf on 24 October 2025 and made the general protections application that day, the first general protections application would be within time.

• [20] Both parties advised in writing that they did not oppose a finding of representational error.

• [21] In Mulready v Joblink Plus Limited,[11] Mr Mulready lodged an application in respect of an unlawful termination dispute. Within an hour, he then lodged a general protections application involving dismissal. The Commission contacted him five days later to inform him of the issue and he discontinued the unlawful termination dispute over the phone. That day he then lodged a fresh general protections application involving dismissal. That application was made one day late. Commissioner Matheson granted an extension and found in respect of the reason for the delay the following:

"[20] I accept that mistakes in the filing of applications are a regular occurrence. However, in this matter the Applicant knew he had made a mistake when he lodged the Form F9 headed "Application for the FWC to deal with an unlawful termination dispute" and upon realising his mistake, took immediate steps to deal with this by filing the correct application form type 44 minutes afterward and within 21 days of his dismissal. The First Form F8 sets out the same allegations concerning the dismissal as the Second Form F8. However, the Applicant was caught out by a legal technicality in that he needed to discontinue the Form F9 application filed 44 minutes earlier before he could make his general protections application due to the operation of s.725 of the Act. The circumstances of this matter are somewhat unusual and are not analogous to those in Singh v Dai Staff and Young v Braziliant. I find the reason for the delay weighs in favour of an extension of time."

• [22] I accept that Mr Mohamed was legally represented on 24 October 2025 when the first general protections application was made on his behalf. He was not aware that he needed to have withdrawn the unfair dismissal claim prior to the general protections claim being made on his behalf. His legal representative ought to have known. I find that the reason for the delay is representational error and Mr Mohamed is blameless; he did not contribute to the delay.

• [23] Immediately upon being alerted to the issue, this application was made.

• [24] The reasons for the delay provided are, in my view, reasons that are supportive of an extension of time being granted.

Any action taken by the person to dispute the dismissal - s.366(2)(b)

• [25] Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant's employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[12]

• [26] Mr Mohamed made an unfair dismissal application on 14 October 2025 which would have been dismissed on account of Mr Mohamed not meeting the minimum employment period. The unfair dismissal application was brought well within the statutory time limit in which to bring his claim. The first general protections claim was made on the last day of the 21-day time limit.

• [27] I am satisfied that Mr Mohamed took concerted action to dispute the dismissal. This is supportive of an extension of time being granted.

Prejudice to the employer (including prejudice caused by the delay) - s.366(2)(c)

• [28] I do not consider there would be any prejudice to the Respondent caused by the delay. This is a neutral factor in the overall assessment of whether there are exceptional circumstances to warrant an extension of time being granted.

• [29] It is well established that "it will not be appropriate for the Commission to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)."[13]

• [30] The Respondent denies that Mr Mohamed was dismissed in breach of the general protections within the Act. On account of other employees being let go at around the same time, it is possible the Respondent is correct.

• [31] It is not possible, however, to make any firm or detailed assessment of the merits. I am satisfied that the merits of the application are a neutral consideration in relation to whether I should extend time for the application to be made.

Fairness as between the person and other persons in a like position - s.366(2)(e)

• [32] The criterion of "fairness as between the person and other persons in a similar position" was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm,[14] where it was said:

"...cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission."

• [33] I have had regard to the decision in Mulready and find the circumstances to be rather similar. I adopt the Commissioner's reasoning in Mulready and consider that results in this criterion being supportive of an extension of time being granted.

• [34] Taking into consideration the matters I am required to take into account under s.366(2) of the Act, I am satisfied that there are exceptional circumstances in this case. I consider that the circumstances of this case are out of the ordinary course, unusual and uncommon. In the manner adopted by Commissioner Matheson in Mulready, and in light of representative error I will exercise my discretion to allow an extension of time for the making of the application until 4 November 2025.

Having allowed the extension of time, I will conduct a conference to see if I can assist the parties in resolving the matter by way of conciliation.

[1] [2011] FWAFB 975.

[2] Smith v Canning Division of General Practice [2009] AIRC 959.

[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[4] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

[5] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36].

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 at [35]- [45].

[7] Ibid; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288.

[8] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]- [33]; and Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

[9] Fair Work Act 2009 s.383.

[10] Ibid s.725.

[11] [2025] FWC 2203 ('Mulready').

[12] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[13] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [36].

[14] [2015] FWC 8885 at [29].

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