s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] This decision arises from an Application to the Fair Work Commission (the Commission) by Ms Andreana Kassab (the Applicant) for an extension of time for the lodgement of an application for a general protections remedy (the Application), pursuant to s.365 of the Fair Work Act 2009 (the Act).

• [2] The Applicant was notified of her dismissal from employment with Ability Action Australia Pty Ltd (the Respondent) on 13 December 2024. The Application was lodged on 29 January 2025 and was 22 days out of time.

• [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 similar 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 now consider these matters in the context of the Application.

• [7] The Applicant, Ms. Andreana Kassab, commenced employment with the Respondent, Ability Action Australia Pty Ltd, on 8 July 2024, in the role of Entry Level Positive Behaviour Support Practitioner. Her employment was subject to a six-month probationary period.

• [8] On 13 December 2024, the Applicant was informed of her dismissal due to not meeting the required performance standards. The dismissal was based on several performance-related concerns, including inadequate documentation, frequent cancellations of sessions, and failure to meet performance expectations. Her termination letter relevantly read:

Termination of Employment within the Probationary Period

As set out in your employment agreement your employment was subject to a six-month probationary period from your start date, 8th July 2024. During this probationary period your suitability and performance in the role of Entry Level Positive Behaviour Support Practitioner was assessed.

We regret to inform you that we are unable to continue your employment. We feel our environment is not the best match for your skills and work style and this letter confirms the termination of your employment effective close of business Friday 13th December, within your probationary period.

Please be advised that we shall pay you one week pay in lieu of notice of your termination and you will also be paid out any accrued and untaken annual leave entitlements by Friday 27th December. Any matters regarding your termination pay should be directed to the Payroll Department on [Redacted].

We take this opportunity to remind you of the obligations and undertakings on your part regarding confidentiality and restraint as per your Employment Agreement and the return of company property.

Should you wish to speak with someone in relation to this, you may wish to utilise the company's EAP service with Connect Psych. You can access this service by visiting the following web address: https://connectpsychservices.com.au/medhealth-booking-portal/

Please accept our best wishes for your future endeavours.

• [9] The Applicant contacted the Fair Work Ombudsman (the FWO) regarding her dismissal on 18 and 30 December 2024, and 27 and 28 January 2025. The Applicant also contacted the Commission regarding her dismissal on 17 December 2024 and 28 January 2025. As frequently, but understandably, occurs, the Applicant did not understand the distinction between the Commission and the FWO.

• [10] On or about 18 December 2024, the Applicant spoke to a Lawyer, Mr Bhogossian, who advised her that notwithstanding that she was terminated during her probationary period, she could take an action under "general principle" law, which the Applicant confirmed she understood was the general protections jurisdiction.

• [11] The Applicant claimed she was delayed by a "shut down period" of either the Commission or the FWO.

• [12] Following her dismissal, the Applicant lodged a formal grievance (the Grievance Letter) with the Respondent on 13 January 2025, alleging unfair dismissal and discrimination based on her mental health condition. The Grievance Letter provided the following:

Subject: Formal Complaint Regarding Unfair Dismissal and Discrimination

I am writing to formally address the circumstances surrounding my dismissal, which occurred two days before the December Christmas party last year. I believe I was unfairly terminated based on false allegations, and I am seeking clarification and resolution to this matter.

Allegations of Overbilling, Impact Hours and not submitting reports on time

I was informed by Amanda Riley and Sarah Hayes (SM4 team) that I was being terminated due to allegations of "overbilling" and not fulfilling my required hours when I could not see clients. These allegations are unfounded. I have retained screenshots of messages and emails with my supervisor and managers, which confirm:

• I never overbilled any clients, including Bradley Paine.
• I consistently received feedback that I was meeting the required impact hours.
• On the day of my dismissal, my impact hours were at 90%, which is within the acceptable range.
• There was 2 reports that i could not submit on time that Kelsey confirmed was not an issue (NO rp) as it was out of my control.

Furthermore, my supervisors and managers, including Amanda Riley, Niel Young, and Kelsey, assured me that adjustments - such as completing three hours on some days instead of five - were acceptable under specific circumstances, especially given the personal stress I was experiencing.

Under the NSW Anti-Discrimination Act 1977, it is unlawful to discriminate against an employee based on a disability, including mental health conditions such as PTSD and anxiety. Prior to my dismissal, I disclosed my diagnosis to Amanda Riley and outlined the limitations it occasionally caused. Amanda acknowledged this and agreed to reasonable adjustments, including working from home on challenging days and attending the Wollongong office once per month. Despite this agreement:

• I was dismissed on claims of not attending the office, despite meeting attendance requirements.
• Other staff members who missed the December meeting due to illness were not dismissed.
• Reasonable adjustments were not properly implemented for me, contrary to what Sarah Hayes stated.

The actions of Niel Young also raised concerns. A day prior to my dismissal, he suggested I resign, citing concerns over canceled client appointments. This was despite Amanda Riley approving my work-fromhome arrangement due to significant personal stress that week. His suggestion made me feel unfairly targeted and unsupported.

The only factual statement that was correct as to why i was being fired was because i forgot to use the 'supervision template' and was using my own word document to write notes during my supervision. A lawyer has already advised me that i can still go ahead under 'general principle' law regardless of being fired before my 6 month probabtion period. With absolutely no evidence to show the allegations made against me besides not using the correct template , i have been ensured that i will be able to sue or claim a settlement if i take this further.

I am deeply disappointed by the manner in which this situation was handled and the resulting impact on my mental health. Since my dismissal, I have been hospitalized due to ongoing panic attacks triggered by this ordeal. Additionally, I was informed that I would have access to a free psychology session for up to one month after my termination. However, when attempting to access the AAA portal, I found that my account had been deactivated, further exacerbating my distress.

1. Provide an explanation regarding the allegations and evidence used to justify my dismissal.
2. Address the discrimination and lack of reasonable adjustments for my disclosed mental health conditions.
3. Confirm access to the post-employment support previously promised. Should these issues remain unresolved, I will proceed with legal action for unfair dismissal and discrimination under the NSW Anti-Discrimination Act 1977.

I trust that this matter will be taken seriously, and I look forward to your response.

• [13] The Respondent conducted an investigation into the matters raised and provided a formal response (the Response Letter) on 14 January 2025, reiterating that the dismissal was due to performance issues and not related to any protected attribute.

• [14] In the Hearing of the matter, the Applicant stated she "was going to leave" the issue of the termination but subsequently was reignited in her desire to challenge the dismissal due to the circumstances of others.

• [15] The Applicant filed a statement dated 3 March 2025, but that statement was not served on the Respondent until 10 March 2025. On 17 March 2025, the Respondent filed a Statement of Simone Winter, the ER/IR Specialist for the Respondent.

• [16] The Hearing was conducted over Microsoft Teams on 10 April 2025.

• [17] 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.[3]

• [18] In her Form F2, the Applicant noted that her Application was being made outside the 21 day timeframe. She answered as follows as to why it was being lodged late:

I was told by fair work when i called the next day after termination that because it was before the probation period they could not help and all i could do was contact NDIS as it was an NDIS based business.

After speaking to a lawyer he advised me that i could still apply under general principles , i ended up trying to speak to fair work again and they said i could apply however i was not told this information until yesterday , it has come to my attention that 2 other workers were also unfairly fired over false allegations such as over-billing which we both know we could not do while working under extensive supervision in the role , i am hoping we can get this through as this is unfair

• [19] The Respondent submitted that the Applicant's reasons for the delay do not constitute exceptional circumstances. They argued that the Applicant's assertion that she was unaware of the nature of her application is incorrect. In her grievance letter dated 10 or 13 January 2025, the Applicant explicitly mentioned that she could proceed under "general principle" law, which was confirmed to refer to general protections. This indicated that the Applicant was aware of the potential to lodge a general protections claim well before she filed her application on 29 January 2025.

• [20] It is clear that the Applicant simply chose not to comply with the 21-day limitation period. That is not an exceptional circumstance. The absence of an acceptable explanation weighs against the Applicant.

• [21] In the decision of Green v Bilco Group Pty Ltd,[4] (the circumstances of which are distinguishable from the current matter) an Applicant was granted a further period for filing their General Protections claim, after he had mistakenly filed an Unfair Dismissal application:

"[17] The differences between an unfair dismissal remedy application and an application for the Commission to deal with a dismissal related general protections dispute may, it must be acknowledged, confuse an unrepresented person seeking to dispute a dismissal. The Applicant acted promptly in challenging his dismissal by lodging an application he was not entitled to make. Thereafter he sought some advice and following consultation with staff of the Commission, he acted reasonably promptly to lodge the application subject of this decision. This is not a case where the Applicant sought to test the jurisdictional limits of his UD application. Rather, once he was advised that his UD application was beyond jurisdiction he took steps to discontinue that application and to make an appropriate application. The UD application in substance alleged a breach of the general protections provisions of the Act. The delay in bringing this application was principally because the Applicant made the wrong application in respect of that which was in substance the same complaint. Whilst the period of delay would have been shorter had the Applicant made the general protections application by email instead of post, he nonetheless acted promptly once told that the UD application was beyond jurisdiction. In the circumstances I am persuaded there is an acceptable explanation for the delay and this weighs in the Applicant's favour."

• [22] Noting the obvious differences between the two instances, notably that the Applicant in the current case did not file a different application, the principle remains the same. As noted in Green v Bilco, the Applicant in that matter acted promptly to initially dispute his termination, and then file the correct application after receiving advice. In this current matter, the Applicant failed to act promptly, or to provide sufficient explanation for, the delay in filing.

• [23] The telephone records show inaction by the Applicant between her initial agitation in the week after dismissal on 13 December 2024, and the subsequent agitation of the Application on 27, 28 and 29 January 2025. That chronology is entirely consistent with the Applicant's statement that "was going to leave" the issue of the termination. No part of the delay can be attributed to a "shut down period". The Commission does not close, other than for public holidays, and the only relevant communication with the FWO was on 30 December 2024, with no further attempts to contact either the FWO or the Commission until 27 January 2025.

• [24] It is undoubtedly established that from 18 December 2024, the Applicant was aware of the availability of a general protections application after receiving the advice of Mr Bhogosian.

• [25] It is clear that the Applicant simply chose not to comply with the 21-day limitation period. That is not an exceptional circumstance. The absence of an acceptable explanation for delay weighs against the Applicant.

• [26] The Applicant did not take sufficient action to dispute her dismissal directly with the Respondent after it occurred. While she did lodge the Grievance Letter on either 10 or 13 January 2025, this was around a month after her dismissal on 13 December 2024, and outside the 21-day period.

• [27] The Respondent conducted an investigation into the matters raised in the grievance and provided a prompt response, reiterating that the dismissal was due to performance issues. Despite the Response Letter, the Applicant did not take further immediate action to dispute the dismissal for a further 15 days.

• [28] In all the circumstances, while the Applicant filed the Grievance Letter, no further action was taken after receiving the prompt Response Letter. I consider this factor is a neutral consideration.

• [29] Neither party made any relevant submissions as to this point. In the circumstances, I consider this consideration to be neutral.

• [30] This is a general protections claim. I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

"It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues."

• [31] In the matter of Kornicki v Telstra-Network Technology Group[5] a predecessor of the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive 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."[6]

• [32] I adopt this reasoning of the Full Bench of the former Commission in relation to the consideration of merits. I consider that this is a neutral factor.

Fairness as between the Applicant and other persons in a similar position

• [33] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [34] As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any significant weight, being the absence of any acceptable reason for delay, weighs in favour of a conclusion there are not exceptional circumstances. None of the factors weigh against such a conclusion.

• [35] Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together.

• [36] 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). Accordingly, the Application must be dismissed.

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

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

[4] [2018] FWC 6818.

[5] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

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