Andrew Shaw [2025] FWC 3847 (16 December 2025)

s.365 - General protections

Application to deal with contraventions involving dismissal - application filed out of time - no exceptional circumstances - application dismissed.

• [1] On 4 December 2025, Mr Andrew Shaw applied under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal. Section 366(1) requires an application under s 365 to be made within 21 days after the dismissal took effect. The material filed by Mr Shaw states his dismissal took effect on 13 October 2025 and his application was not lodged within 21 days.

• [2] The Commission must therefore determine in the first instance whether a further time for making the application should be granted. The Commission may allow a further period for the application to be made by a person under section 366 if satisfied that there are "exceptional circumstances", taking into account: the reason(s) for the delay; any action taken by the person to dispute the dismissal; prejudice to the employer (including prejudice caused by the delay); the merits of the application; and fairness as between the person and other persons in a similar position. In addition to material filed with Mr Shaw's Form F8 application, Mr Shaw subsequently filed a signed statement and other documentary evidence, which I have had regard to. I was satisfied on the material before me that the extension of time matter was capable of being dealt with 'on the papers'.

• [3] As to the reasons for delay, Mr Shaw says that a 'false' allegation was made by his former employer about him to the Australian Federal Police, which Mr Shaw says created significant shock, confusion and distress. Mr Shaw says this false report to the AFP was made one day before he was dismissed. Mr Shaw states he required time to understand the situation and seek legal clarification. In his supplementary material, Mr Shaw also refers to needing to engage with 'multiple regulatory bodies' urgently following the dismissal. Mr Shaw also says that, at the same time, there were complex financial disputes, unexplained conduct by the directors of his former employer, and attempts to resolve matters directly. Mr Shaw also explains that he was under a misapprehension about his capacity to have made an application under section 365, because his work was invoiced through the company (which I understand to be a reference to being in a legal relationship other than employment). Mr Shaw says these events delayed his ability to lodge within 21 days. Finally, in the supplementary material Mr Shaw says he was left without access to business records necessary to prepare his application.

• [4] The delay is the period commencing after the 21-day lodgement period ended (which was 3 November 2025) until the date the application was lodged on 4 December 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay. In the circumstances, Mr Shaw's application is approximately 31 days' late. I am not satisfied that the explanations provided by Mr Shaw supply a satisfactory explanation for any part of the delay, whether in isolation or combination. While I am prepared to accept the circumstances he described could have impacted on his ability to lodge an application, there is no clear timing about them and nothing to satisfactorily explain a 31-day delay. In respect of Mr Shaw's misapprehension of his legal rights, there is nothing unusual about that circumstance and I note it is a circumstance experienced by many self-represented litigants in the Commission. I consider the reasons for delay are matters pointing strongly against a finding of exceptional circumstances.

• [5] As to actions taken by Mr Shaw to dispute the dismissal, Mr Shaw refers to communications "directly with the employer", gathering evidence, seeking legal advice, and preparing material for the Commission. The Form F8 application also references Mr Shaw's disputation of the 'false AFP report', a request for 'payment of outstanding amounts' and attempting 'in good faith to resolve the dispute' without escalating to litigation. Many of these matters do not have any clear connection to challenging the dismissal (as distinct from other legal issues) but I accept that some do. Mr Shaw has also made his general protections application. I am prepared to accept that some of Mr Shaw's actions were challenges to his dismissal that the employer was aware of and these are factors that points slightly in his favour, although they are not matters that I consider supportive of a finding of exceptional circumstances, whether on its own or with any other factor.

• [6] As to prejudice to the employer (including prejudice caused by the delay), there was no material before me to suggest any material prejudice would be suffered by the employer if an extension of time were granted. I treat this factor neutrally between the parties.

• [7] As to the merits of the application, the heart of Mr Shaw's complaint is directed to alleged retaliation against him for making a protected disclosure (or at least raising a complaint about what he says are financial irregularities). Mr Shaw's complaint appears to encompass the report to the AFP. It is tolerably clear on the material before me that there will most likely be disputed facts in issue in relation to a number of key matters. It is well established that, "it will not be appropriate for the Tribunal 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)"[1]. This is such a case. In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. In these circumstances, I will treat this factor neutrally.

• [8] As to the final statutory factor, Mr Shaw did not draw any matter to my attention that would point to an overall finding of exceptional circumstances based upon fairness as between Mr Shaw and "other persons in a similar position". No such person was identified.

• [9] Taking the above matters into account, I am not satisfied that there are exceptional circumstances of the kind required by the statute, whether the matters above are taken individually or in combination. There are no additional matters that I am aware of that would otherwise point to a conclusion of "exceptional circumstances".

• [10] As the Commission can only grant an extension of time if satisfied there are exceptional circumstances, there is no basis to allow an extension of time. Mr Shaw's application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order[2] to this effect will be issued in conjunction with this decision.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[2] PR795101.

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