Fair Work Act 2009

s 365 - General protections

General protections involving dismissal - out of time - application dismissed

[1] On 29 January 2026, Andrew Thompson (the Applicant) applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth) (the Act) for it to deal with general protections contraventions involving dismissal.

• [2] The Act requires an application made under s 365 to be lodged within 21 days after an applicant's dismissal took effect or within such further period as the Commission allows under s 366(2) of the Act.[1] The First Respondent objected to the application on the basis that it was filed outside the 21-day period prescribed by s 366(1)(a) of the Act.

[3] The Applicant asserts that he was notified of his dismissal on 3 December 2025 and that he did not know the exact date that his dismissal took effect. However, it is apparent from the Applicant's evidence that the Respondent advised him on 3 December 2025, that he was being let go and would not have a job after his two weeks of leave, which concluded on 19 December 2025. For its part, the Respondent asserts that the Applicant's dismissal took effect on 19 December 2025, notwithstanding that the Respondent had sent an email message to the Applicant on 16 December 2025, confirming that the Applicant's termination of employment was effective 3 December 2025.

[4] It is well-established that a termination of employment takes effect when it has been communicated to the employee. Whilst the Applicant's partner had requested, by email, a formal letter of termination on 12 December 2025, hence the Respondent's email to the Applicant dated 16 December 2025, I find that as of 3 December 2025, the Applicant had a reasonable opportunity to find out he had been dismissed effective 19 December 2025. As the Applicant's employment ended on 19 December 2025 after his period of leave, his application was lodged some 20 days after the statutory deadline of 9 January 2026.

[5] The Applicant contends that there are essentially three reasons for the delay in lodging his application. First, whilst advised that his dismissal took effect on the same day as he was notified, he was not provided with a notice period or clear guidance about his final day of employment in accordance with the relevant modern award. Second, shortly after his dismissal he was required to travel out of the area to care for his child following surgery in a Sydney hospital (the Applicant being based in New South Wales). Third, the unexpected nature of the dismissal combined with caring responsibilities, relocating his household and actively seeking new employment caused significant stress and adversely impacted the Applicant's mental health.

[6] For the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 366(2) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the factors listed at s 366(2)(a)-(e). The issue before me is whether the circumstances are exceptional and, if they are, whether it is fair and equitable for an extension to be granted.

• [7] The matter proceeded to a hearing. Having heard from the parties and having considered the materials filed, in the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am, on balance, not satisfied that there are exceptional circumstances as contemplated by s 366(2) of the Act and therefore the application is dismissed. An Order[2] issues concurrently with this decision and my detailed reasons follow.

• [8] Under s 366(1)(b) and (2) of the Act, the Commission has the power to extend the time within which an application for a general protections dismissal dispute can be made. In Tamu v Australia for UNHCR,[3] a Full Bench of the Commission summarised the principles relevant to applications of this kind:

[16] Section 366(1) provides that a general protections application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2). The 21 day period prescribed in section 366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.

[17] Section 366(2) of the Act sets out the circumstances in which the Commission may grant an extension of time as follows:

"(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."

[18] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension. A decision whether to extend time under section 366(2) involves the exercise of a discretion.

[19] The meaning of "exceptional circumstances" in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd ('Nulty'),[4] as follows:

"[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance."

[20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.' (footnotes omitted)

• [9] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd ('Stogiannidis'),[5] a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers,[6] which had concluded that for 'exceptional circumstances' to be established, an applicant must provide reasons for the whole of the period of delay. In Stogiannidis, the Full Bench expressed:

[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any 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 the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time 'needs to provide a credible explanation for the entire period', it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.

• [10] It has been observed that the Act does not specify what reason for delay might tell in favour of granting an extension.[7] However, decisions of the Commission have referred to an acceptable[8] or reasonable[9] explanation. The absence of any explanation for any part of the delay may weigh against an applicant in the assessment of whether there are exceptional circumstances, whilst a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, however all the circumstances must be considered.[10]

• [11] The relevant period required to be considered under s 366 is the period after the 21-day timeframe for lodging the application.[11] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[12]

[12] As noted, the Applicant essentially relies on three matters as reasons for the delay in lodging his application.

[13] Addressing the first reason, the Applicant gave evidence that whilst advised that his dismissal took effect on the same day as he was notified, he was not provided with a notice period or clear guidance about his final day of employment. However, this evidence does not align with the Applicant's account that he was advised by the Respondent on 3 December 2025 that he would not have a job to return to after his period of two weeks leave. As already mentioned, I have found that the Applicant was well positioned as of 3 December 2025 to appreciate that his employment would conclude on 19 December 2025, after his annual leave. Whilst appreciative that some confusion over the dismissal date may have arisen given the Respondent's email dated 16 December 2025, in which the Applicant's dismissal was said to have taken effect on 3 December 2025, it remains that the Applicant had clear guidance that by 19 December 2025 at the latest, his employment would come to an end as of that date.

[14] Second, the Applicant gave evidence that shortly after his dismissal he was required to travel to care for his child following surgery in a Sydney hospital. The Applicant provided a medical certificate dated 5 December 2025 in support, which set out that a male child was an inpatient at a hospital in New South Wales for the period of 5 December 2025 to 19 December 2025. As of 18 December 2025, that same male child was certified fit for work/school pursuant to a medical certificate dated 18 December 2025. Based on the evidence before me and adopting a conservative approach, I am satisfied that as of 19 December 2025 (the last day of the male child's hospitalisation) to 20 December 2025, the Applicant had a plausible reason for this part of the delay period.

[15] Third, the Applicant stated that given the unexpected nature of his dismissal combined with caring responsibilities, relocating his household, and actively seeking new employment, these factors caused significant stress and adversely impacted the Applicant's mental health.

• [16] As was identified in Bates v Joblink Plus Limited, having been drawn from the reasons of the Full Bench in Shaw v Australia and New Zealand Banking Group Ltd, stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves following the loss of employment.[13] It is well-established that the loss of employment is a serious event in a person's life, and that the aforementioned responses such as adverse impacts on mental health and consequences, are not unusual.[14]

• [17] However, it is accepted that an applicant's medical condition can be so significant that it affects the applicant's mental capacity to prepare and file an application with the Commission. Much, however, may turn on the evidence adduced to support such a proposition. In Underwood v Terra Firma Pty Ltd, the Full Bench accepted the finding made at first instance that the applicant had failed to positively demonstrate that his depressive illness had impacted his mental capacity so as to prevent him from making the application within 21 days.[15] The Full Bench affirmed the findings that the medical evidence relied upon 'did not positively demonstrate that the appellant's depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21-day time frame' and that no exceptional circumstances were established.[16]

• [18] In the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish that they were prevented from lodging an application due to a medical condition where the employee demonstrates capacity to act by performing other tasks following the dismissal.[17] In this case, there is no probative medical evidence showing incapacity at a particular time or times in the delay period. Furthermore, at hearing, the Applicant gave evidence of having searched for jobs during the delay period and having attended at least one interview on or around 13 January 2026.

• [19] Whilst sympathetic to the circumstances that the Applicant faced at the time of his dismissal, specifically the stress associated with the loss of a job, and having to relocate and secure alternative employment, it is common for employees to suffer shock and trauma because of dismissal,[18] and to have to secure alternative employment and relocate. These reasons do not necessarily lead to a finding of a plausible reason or reasons for the delay. In this case, I am unpersuaded that the Applicant's mental health and other circumstances so described in this paragraph, provide a reasonable explanation for the delay in making his application. The Applicant further expressed having caring responsibilities however, this is not a plausible reason for the delay, particularly when such responsibilities did not impede the Applicant seeking out employment.

[20] At hearing, the Applicant's partner submitted that the Applicant waited to make his application pending the receipt of legal advice. However, there was no evidence to support that contention and as it is, the Fair Work Commission provides resources on its website to enable self-represented applicants to easily navigate making an application. Again, this reason for delay is simply not credible. The Applicant further noted issues with literacy, albeit he did not wish to rely on this as a reason for the delay. However, insofar as literacy issues arose, the Applicant conceded that he did not telephone the Commission for assistance.

[21] It is to be appreciated that the Applicant was aggrieved about the way the employment relationship ended - that is the abruptness of its conclusion. However, on the evidence before me, I am unpersuaded, that the Applicant had a reasonable explanation for the whole period of the delay, albeit I have found that for 20 December 2025, there was reasonable explanation.

[22] I have considered the delay as the period beyond the 21-day period. Regard has been had to the circumstances from the date the dismissal took effect. As I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the whole period of the delay in lodging his application, or a majority of part thereof, this weighs against a finding of exceptional circumstances.

• [23] Action taken by the employee to contest the dismissal, other than lodging a general protections dismissal dispute, may favour granting an extension of time.[19]

[24] The Applicant contends that following his dismissal, he took steps to clarify and dispute the decision. The Applicant stated that he contacted the Respondent by email to request a formal notice of termination and spoke with the Respondent in person and by telephone to seek clarification regarding the reasons for his dismissal and to better understand the basis for the decision.

[25] The evidence relied upon by the Applicant includes text messages from his partner to the Respondent, enquiring about the provision of written notification of the Applicant's last day and the provision of payslips, in addition to an email dated 12 December 2025, requesting the provision of a formal letter of termination, noting the stress caused by the notification of the Applicant's dismissal prior to taking leave, questioning why the Applicant's job was terminated with little notice or conversation leading up to the dismissal, and enacting the dismissal in such a manner that the Applicant was treated like a piece of rubbish.

[26] It follows that I am of the view that the Respondent had been placed on notice of the Applicant's grievance regarding his dismissal. This factor therefore weighs toward a finding of exceptional circumstances.

[27] When considering the factor of prejudice to the employer, the Commission considers whether the delay has caused the employer to suffer prejudice and whether the purported prejudice would not have been suffered had the application been made within 21 days of the dismissal taking effect.

• [28] In GHD Pty Ltd v Black, it was said that it is well accepted that a lengthy delay gives rise to a general presumption of prejudice.[20] In that case, the Full Bench held on appeal that a 168-day delay may impair the recollection or availability of witnesses and thereby give rise to a relevant prejudice.[21] The length of the delay in this matter is some 20 days. I am therefore not content to adopt the general assumption that the delay period may impair the recollection and availability of witnesses in this case.

• [29] However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time.[22] In the present case, I consider this to be a neutral factor.

[30] The Act requires me to consider the merits of the application in considering whether to grant an extension of time.

[31] In Nulty, the Full Bench of the then Fair Work Australia considered the principles applicable to the extension of time discretion under s 366 of the Act. In that case, the Full Bench said in respect to the merits of an application:

[36] It ought be regarded as well established that on an extension of time hearing 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).

• [32] In Telstra-Network Technology Group v Kornicki, the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth).[23] In that case, the Full Bench said in respect to the merits of an 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.[24]

[33] In his application, the Applicant states that he was informed by William Frost (Frost), owner of the Respondent, that the workshop side of the business had not been making any money and was a 'money pit'. According to the Applicant, Frost advised him that the business made more money from selling spare parts than from doing repair work. At that time the Respondent employed another employee, who, said the Applicant, was undertaking duties that the Applicant had accrued over his seven years working for the Respondent. Whilst the Applicant was dismissed, the Applicant stated that to the best of his knowledge, the other employee was retained. It is apparent that the Applicant takes issue with his selection for dismissal, the reasons for his dismissal, the procedure adopted by the Respondent and that his dismissal occurred in circumstances where he had applied for and had received approval for two weeks of leave to accompany his son to hospital for surgery.

[34] I am appreciative that the Respondent stated it provided the Applicant with notice of his dismissal prior to the Applicant taking leave to enable him to have additional time to secure alternative employment, and of the temporal association between the taking of leave by the Applicant and the notification of the Applicant's dismissal, but there is little else I can say on this point. It is inappropriate for me to resolve contested issues of fact going to the ultimate merits for the purposes of taking into account the merits of the matter as required by s 366(2)(d) of the Act. It is sufficient to conclude that whilst I am unable to say that the Applicant's case is absent merit, in all the circumstances, I consider the factor neutral - weighing neither toward nor against a finding of exceptional circumstances.

2.5 Fairness as between the person and other persons in a similar position

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

[C]ases 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.[25]

• [36] The Commission's consideration of the factor under s 366(2)(e) of the Act is concerned with the consistent application of principles in applications of this kind.[26] This ensures fairness as between an applicant and other persons in a similar position. However, applications for an extension of time generally turn on their own facts, and it follows that in the circumstances of this case, the consideration of fairness between the Applicant and persons in a similar position is a neutral consideration.

[37] The conclusion as to the existence of exceptional circumstances will turn on a consideration of all the relevant matters and the assignment of appropriate weight to each.

[38] As noted, in the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am, on balance, not satisfied that there are exceptional circumstances as contemplated by s 366(2) of the Act. Whilst appreciative that the Applicant takes umbrage as to the way his employment ended, the reasons for the delay are uncompelling in the context of the Act and the meaning attributed to 'exceptional circumstances' within that framework. Further, the other factors I am obliged to consider, on balance, do not lean towards a finding that the circumstances confronting the Applicant were exceptional. This is the case notwithstanding my finding in respect of s 366(2)(b). I am therefore unable to grant an extension of time, and the application must be dismissed.

[1] Fair Work Act 2009 (Cth) s 366(1).

[2] PR797267.

[3] [2019] FWCFB 2384.

[4] [2011] FWAFB 975.

[5] [2018] FWCFB 901 ('Stogiannidis').

[6] [2010] FWAFB 7251.

[7] Pottenger v Department of Caffeine [2018] FWC 3403, [31].

[8] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9].

[9] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

[11] Long v Keolis Downer [2018] FWCFB 4109, [40].

[12] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] ('Shaw').

[13] [2024] FWC 884, [19], citing Shaw (n 12), [15].

[15] [2015] FWCFB 3435.

[17] See Ballarat Truck Centre Pty Ltd v Kerr [2011[ FWAFB 5645, [15].

[18] Howard v Medical and Aged Care Group [2018] FWC 3454, [19].

[19] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300 ('Brodie-Hanns').

[20] [2023] FWCFB 38, [51] ('GHD'), citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556, and Brodie-Hanns (n 19) 299-300.

[23] (1997) 140 IR 1.

[25] [2015] FWC 8885, [29].

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