s.365 - General protections

Application made under s.365 - extension of time - application dismissed.

[1] Ms Antonette Page has made an application under s.365 of the Fair Work Act 2009 (Act) in which she alleges that she was dismissed by Bunnings Group Limited (Respondent) in contravention of Part 3-1 of the Act. 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). Ms Page's dismissal took effect on 3 September 2025. The 21-day period ended at midnight on Wednesday 24 September 2025. The application was lodged at 3.12am on 25 September 2025. For the application to proceed, Ms Page 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 ss.366(2)(a) to (e).

[2] As to the reason for the delay (s.366(2)(a)), Ms Page said was she experiencing significant psychological distress and panic attacks during the 21-day period following her dismissal. Having consulted her general practitioner, Ms Page said she was prescribed medication, the side effects of which included "brain fog" and fatigue. Ms Page disclosed that she was also providing support to her mother, seeking new work by making job applications and attending interviews and undertaking study, which required filing an assignment which was due at the same time the 21-day period expired. At the hearing, Ms Page said she completed her Form F8- General protections application involving dismissal (Form F8) at 11.45pm on 24 September 2025 but could not lodge it before midnight because her email was running slowly. Having realised her application would be out of time, she said she spent the short period of time that followed completing the "reason for lateness" section in the Form F8. Ms Page also explained that her ADHD compromises her ability to recognise time deadlines.

[3] While I accept that Ms Page experienced a negative reaction as a result of her dismissal, these things are not, of themselves, unusual. Stress, anxiety, shock and a degree of trauma from a dismissal are not uncommon reactions. Even if I accept Ms Page suffered from the symptoms she described and that there were some periods during which her level of functioning may have been impaired, I also note the other activity she was able to undertake, such as submitting her assignment by its deadline. Ultimately, I am not persuaded that the matters raised by Ms Page rendered her so debilitated that she could not take the necessary steps to make an application during the 21-day period following her dismissal. The email issue raised by Ms Page was not adequately explained. Clearly it was untimely but by only completing the Form F8 so close to the expiration of the 21-day period, Ms Page left herself exposed. In my assessment, the reasons for delay weigh against a conclusion that there are exceptional circumstances in this case.

[4] As to the other mandatory considerations, Ms Page took no other action to dispute the dismissal other than lodging this application (s.366(2)(b)), 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)) and nor do I consider that there are any matters that are relevant to fairness between Ms Page and other persons in a like position (s.366(2)(e)). I consider these all to be neutral factors.

[5] In relation to the merits (s.366(2)(d)), Ms Page raised her ADHD, about which she asserts the Respondent was aware and yet failed to support, and she asserted that for a period of over 12 months she had raised concerns about workload, role clarity and her psychological safety. Against this background, Ms Page outlined a range of concerns about the performance management process the Respondent implemented in the period leading up to her dismissal. In essence, Ms Page asserts her dismissal was based on a discriminatory ground and as a result of her having raised concerns with the Respondent. The Respondent asserted that it had already commenced performance management and a performance improvement plan (PIP) before Ms Page raised her grievances, that the PIP was paused during its investigation and that it was only recommenced when the investigation process concluded. I am unable to make any firm assessment of the merits at this stage. They would depend on factual findings made by a court after hearing the evidence. Because I do not consider the merits to tell for or against an extension of time, I regard them as a neutral consideration.

[6] 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.

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