s.365 - General protections

Ramsay Health Care Australia Pty Limited & Monique Lowe

Application to deal with contraventions involving dismissal - jurisdictional objection - application filed out of time

[1] Ms Anna Kashchuk (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) to deal with contraventions involving dismissal pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) on 7 November 2025. Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).

[2] The Applicant submits that her dismissal took effect on 15 October 2025, when the Respondent sent an email at 6:18pm advising her that her employment was ceased (Dismissal Email). The Applicant submits that the Respondent did not send a text message advising that an email had been sent to her. Further, the Applicant submits that her union representative, that same evening, disputed the grounds for the dismissal and on that basis the Applicant believed that her dismissal was being reviewed and that discussions between her union and the Respondent were underway.[1]

[3] The Applicant submits that on 20 October 2025, a HR representative from the Respondent replied and it was at that point that the Applicant believed that it "became clear that Ramsay's decision would not be reconsidered".[2] The Applicant contends she then sought further advice from her union and lodged this application.[3] The Applicant provided a copy of the Dismissal Email but did not provide copies of the other correspondence to which she referred.

[4] Upon consideration of the Dismissal Email, I am satisfied that the Applicant's dismissal took effect on 15 October 2025. While noting the Applicant did not receive a text warning that email was coming, I note that the Applicant submitted that her union wrote to the Respondent that same evening. I am therefore satisfied that the Applicant was aware of the email that same day and I consider that as the day the dismissal took effect.[4]

[5] The 21-day period ended on Wednesday, 5 November 2025. The application was lodged on 7 November 2025; therefore, it was lodged two (2) days late. For the application to proceed, the Applicant requires an extension of time. The Commission may allow a further period only if it is satisfied that there are "exceptional circumstances", taking into account the matters in s.366(2)(a)-(e).

[6] As to the reason for the delay (s.366(2)(a)), Ms Kashchuk's reasons are that she believed the decision was under review as a consequence of correspondence she claims was sent to the Respondent from her union on the day of the dismissal; however, this correspondence was not put before the Commission. I reject Ms Kashchuk's suggestion that the delay in lodgement was caused by a belief that the decision to terminate her employment was under review or because discussions were under way between her union and the Respondent. There was no evidence before the Commission to support this. Further, on Ms Kashchuk's own response, it "became clear [to her] that Ramsay's decision was not going to be reconsidered"[5] on 20 October 2025 and yet she did not lodge this claim until 7 November 2025.

[7] I note Ms Kashchuk claimed that she sought further advice from her union; however, she provided no particulars about this, nor any evidence to support it. I also note that Ms Kashchuk lodged this application herself.[6] I do not accept that these matters prevented or seriously impeded the possibility of timely lodgement of the F8 application form. In my assessment, the reasons for delay weigh against a conclusion that there are exceptional circumstances in this case.

[8] Ms Kashchuk states that she was made aware of her dismissal on 15 October 2025. I find that this is a neutral consideration pursuant to s.366(2)(b).

[9] As to the other mandatory considerations, I accept that Ms Kashchuk may have taken action through her union to dispute the grounds of the dismissal, although she did not provide evidence of this (s.366(2)(b)). This weighs very slightly in favour of an extension. I do not consider there to be any prejudice to the employer associated with the relatively short delay in this case (s.366(2)(c)), nor do I consider that there are any matters that are relevant to fairness between Ms Kashchuk and other persons in a like position (s 366(2)(e)). I consider these to be neutral factors.

[10] As to the merits (s.366(2)(d)), Ms Kashchuk's substantive application contends that while the Respondent stated that the reasons for her dismissal were that her medical certificate was "inappropriate" and that the Respondent held concerns about her honesty,[7] she believes these reasons were inconsistent with the facts and that she was dismissed following the making of a formal complaint, on or around August 2025,[8] regarding patient safety and later seeking both medical and union support.[9] I consider that Ms Kashchuk has an arguable case; however, a more detailed assessment is not possible given the limited information before me. The merits of the matter would also depend on findings made by a court after hearing the evidence. I regard the merits as a neutral consideration.

[11] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s.366(2), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is dismissed.

[4] Ayub v NSW Trains [2016] FWCFB 5500.

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