s.365 - General protections

Application to deal with a general protections dismissal dispute - late application - whether extension of time should be allowed

• [1] Ms Anita Nagiah resigned from her employment with Andrews Meat Industries Pty Ltd (AMI) with immediate effect on 28 May 2025. On 8 July 2025, Ms Nagiah applied for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (Cth) (the Act). Ms Nagiah alleges that she was dismissed by AMI when she was forced to resign for mental health reasons in contravention of the general protections provisions of the Act.

• [2] Although there is a dispute about whether Ms Nagiah resigned or was dismissed, there is no dispute that the employment terminated on 28 May 2025. In the circumstances, the dispute is not necessary to resolve. I proceed on the basis (without deciding) that Ms Nagiah has been dismissed. The application was made 20 days after the end of the 21‑day filing period. The question is whether additional time can and should be allowed for the application to be made.

• [3] On balance, I am not satisfied that there are exceptional circumstances in this case in connection with the late filing of the application. No additional time can be allowed for the application to be made. These are my reasons.

• [4] An application under s.365 of the Act must usually be filed within 21 days of dismissal. The Commission can extend the filing period if satisfied that there are exceptional circumstances (s.366(1)(b)), taking into account the matters listed in s.366(2). Section 366(2) provides:

"(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

(d) the merits of the application; and

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

• [5] Reason for delay: The reason given for delay is Ms Nagiah's mental health. Ms Nagiah submits that a diagnosed mental health condition of adjustment disorder with mixed anxiety and depressed mood hindered her capacity to file the application on time and caused the filing delay. Medical evidence in the form of a psychologist's report (prepared at the request of her lawyer on 7 August 2025) confirms the diagnosis. It describes symptoms such as reduced motivation and activities and low mood, as well as struggling with reduced attention and concentration leading to forgetfulness, difficulties in decision-making and delayed actions. I accept that these and other related symptoms can contribute to delays in the commencement of legal action.

• [6] It is relatively common for employees to experience adverse mental health effects in connection with the deterioration of a work relationship. The medical report explains some inaction on the part of Ms Nagiah, but it does not go so far as to confirm incapacity to commence legal proceedings during the period of delay. It indicates that 9 days after the expiry of the 21‑day filing period (on 27 June 2025) Ms Nagiah's depression, anxiety and stress levels were 'extremely severe'. These symptoms had improved by mid-July 2025, although she was finding the experience of dealing with her workers' compensation claim distressing.

• [7] Balanced against the medical report of 7 August 2025 is separate medical and other evidence including certificates of capacity confirming no capacity for work for one week from 4 to 11 June 2025 (within the 21 day filing period) and then capacity for work from 12 June 2025 for 4 days per week, 4 hours per day. According to the certificates of capacity, Ms Nagiah had capacity for work for 16 hours per week during the entire period of delay.

• [8] Ms Nagiah attended her lawyer on 18 June 2025 (on the 21st day after her dismissal). There is no evidence about whether she gave instructions to commence a claim immediately and if so, why this did not happen. No assertion of representative error is made.

• [9] Medical notes recorded on 19 June 2025 (the first day of the delay) indicate that Ms Nagiah had normal cognition, affect and thought. Fron the date of termination of employment and filing of the claim, Ms Nagiah saw her general practitioner at least 10 times, and a psychologist at least once. Some of the medical appointments resulted in follow up actions for Ms Nagiah to take in pursuit of her worker's compensation claim. There is no reason on the materials to consider that either did not complete those actions or that she was unable to do so. The evidence that Ms Nagiah found dealing with her worker's compensation distressing indicates that she was able to pursue her claim during the relevant period including by taking necessary administrative steps.

• [10] On balance, the reasons for delay weigh somewhat in favour of a finding of exceptional circumstances.

• [11] Action to dispute the dismissal: Preceding the termination of her employment, Ms Nagiah was involved in a disputed performance management process. Until the filing of this application, there was no action taken to dispute the termination once it occurred. The only step she took in that direction was to search for a lawyer with the assistance of her partner and then to make contact with, and meet, her lawyer on 18 June 2025. Presumably after that time there was some follow up as between Ms Nagiah and her lawyer, but no communication with AMI. This weighs against a finding of exceptional circumstances.

• [12] Prejudice to the employer: There is no relevant prejudice to AMI if additional time is allowed for the application to be made. This is a neutral consideration.

• [13] Merits: The merits of the application are also a neutral consideration as they could only properly be tested at hearing. Ms Nagiah asserts constructive dismissal following her resignation on 28 May 2025 in response to a performance management process that she did not agree with and was not willing to accept. Ms Nagiah's evidence is that she was targeted after becoming injured at work, suffering a second injury and having to deal with a new manager. She also alleges gender discrimination although no evidence to found the allegation has been produced. AMI concedes that it got one of the dates wrong when it wrote to Ms Nagiah alleging substandard performance. It remains of the view that it otherwise had reasonable grounds to manage Ms Nagiah's performance, and that its actions did not force Ms Nagiah to resign. There appears to be evidence to support its position.

• [14] Fairness as between Ms Nagiah and another person in a like position is not a relevant consideration in the circumstances.

• [15] On balance, I am not satisfied that there are exceptional circumstances in connection with the late filing of the application. Although Ms Nagiah has a diagnosed mental health condition, the medical evidence as a whole does not establish that this condition prevented Ms Nagiah from filing her application either in time or earlier than she did.

• [16] At all relevant times, Ms Nagiah was able to pursue her related workers' compensation claims. She saw her lawyer on the 21st day after termination; attended 11 separate medical appointments in the period after termination (9 in June 2025) and had certified capacity for work for 16 hours per week from 12 June to the date of filing this application on 8 July 2025.

• [17] Despite this capacity, Ms Nagiah did not take any action to dispute the dismissal until 18 June 2025 when she saw a lawyer. Had the application been made on that date, it would have been in time. The delay in filing the application until 8 July 2025 is not otherwise explained other than in brief comments from the bar table.

• [18] As I am not satisfied that there are exceptional circumstances in this case, no additional time for the application to be made can be allowed.

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