Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - extension of time - application dismissed.

• [1] This decision concerns an application made by Ms Aoife Herrick (Applicant) on 7 July 2025 under s.365 of the Fair Work Act 2009 for the Commission to deal with a general protections dispute involving her alleged dismissal by Directions Health Services Ltd (Respondent)

• [2] Section 366(1) of the Act requires 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 s.366(2).

• [3] The Applicant signed an employment contract with the Respondent on 21 May 2025 which provided a commencement date for the employment as a Senior Youth Worker of 2 June 2025. On 29 May 2025, for reasons which will be described later, the Respondent rescinded the offer of employment. It made a payment to her equivalent to two weeks salary in recognition of the impact the contract recission might have on her.

• [4] The Applicant's general protections application was made 18 days outside the 21-day period prescribed by the Act and may only proceed if the Commission allows an extension of time.

• [5] The Respondent also objects to the application on the basis that the Applicant was not dismissed within the meaning of s.386 of the Act because no employment relationship existed between the parties as she had not commenced work. However, this decision deals only with whether time should be extended for the application to proceed.

• [6] The application was listed for hearing on 22 August 2025 to consider whether further time should be allowed for the application to be made. The Applicant appeared on her own behalf and Ms Twyford appeared with permission for the Respondent.

• [7] The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]

• [8] Section 366 of the Act provides:

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(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.

• [9] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:

"[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."

• [10] The onus of establishing exceptional circumstances lies with the Applicant.

• [11] I will now deal with each of the provisions of s.366(2) of the Act.

• [12] The period of delay requiring explanation is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason supports a finding that there are exceptional circumstances.[3]

• [13] The Act does not specify what reason for the delay might weigh in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in assessing whether exceptional circumstances exist, while a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[4]

• [14] The Applicant explains that the delay was because of:

1. Medical and health reasons involving an intentional drug overdose and a sexual assault that occurred on 29 May 2025; and
2. Being unaware of how to make this application and the difficulties in navigating a complex legal process.

• [15] The Applicant's evidence was that making an application to the Commission was a difficult process for victim-survivors to engage in particularly because of the short timeframe for people who are experiencing ongoing trauma.

• [16] She provided a copy of her discharge summary from the hospital after her drug overdose on 29 May and submitted that recovery from a drug overdose could not be achieved in 21 days. She said her recovery was compounded because the hospital discharged her while she was still drug affected, and she was assaulted later that night. She did not make a police report because she said she had tried to report sexual violence to the police before and never felt heard or safe.

• [17] I accept that the Applicant experienced trauma because of her drug overdose and assault. However, the limited medical evidence provided by the Applicant does not demonstrate that she was continuously incapacitated throughout the entire 18-day delay.

• [18] In addition, the Applicant was able to make an application to the Fair Work Ombudsman within the 21-day time period, and when that application was rejected, she was able to make an unfair dismissal application with the Commission. She says she was advised by the Commission that she was ineligible to make an unfair dismissal application and she should make this general protections application instead, which she subsequently did.

• [19] I do not accept that making an application to the Commission is a difficult process. A simple internet search quickly finds the Commission's website, and there is information which is easy to navigate including explaining the difference between an unfair dismissal application and a general protections application. Further, being unaware of how to make an application to the Commission is not exceptional.

• [20] For these reasons, I am not satisfied that an acceptable explanation has been provided which fully explains the whole period of the delay in filing this application within the statutory timeframe.

• [21] This weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

• [22] The Applicant asserts that she made an application to the Fair Work Ombudsman within the 21-day time period but the Respondent was not aware of any such application until this application was lodged. There is no evidence to support a finding that the Applicant took any other steps to dispute her alleged dismissal.

• [23] This weighs slightly against a finding that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

• [24] Despite the relatively lengthy delay, I do not consider the Respondent would suffer any prejudice if an extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.

• [25] In Nulty v Blue Star Group Pty Ltd[5], the Full Bench said:

"It would appear that this factor, described in the Act as 'the merits of the application' is directed towards some elementary assessment of the potential prospects of the matter if the extension was granted and the matter proceeded to hearing and ultimately determination."

• [26] For the purpose of determining whether to grant an extension of time for the Applicant to file this application, the Commission 'should not embark on a detailed consideration of the substantive case.'[6]

• [27] It is not in dispute that the Applicant did not commence work with the Respondent, with her employment contract being rescinded a few days before the employment was due to commence.

• [28] The Respondent explained that it had another employee who it needed to redeploy at short notice, and who took the position that had been offered to the Applicant. It submitted that no employment relationship existed between the Applicant and the Respondent in these circumstances and hence there was no dismissal within the meaning of the Act.

• [29] The Applicant said her contract was rescinded because she had told the Respondent about recent trauma she had experienced and that she was considering talking to the media about it.

• [30] In circumstances where the Applicant did not commence work for the Respondent, the Applicant has no prospect of establishing that she was dismissed within the meaning of the Act.

• [31] As a result, I am of the view that there is no merit in the Applicant's case. This weighs against a finding of exceptional circumstances.

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

• [32] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[7] considered this criterion and said 'cases 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.'[8]

• [33] Neither party raised any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.

• [34] Having considered all of the matters the Commission must take into account, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. On this basis, no further time is allowed for the application to proceed and the application is dismissed.

G Twyford of Griffin Legal for Directions Health Services Ltd.

[1] [2016] FWCFB 6963.

[2] [2011] FWAFB 975.

[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[5] [2011] FWAFB 975.

[6] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

[7] [2015] FWC 8885.

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