Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal

[1] Mr Grant Aston (Mr Aston) has made an application under section 365 of the Fair Work Act 2009 (Cth) (the Act) in which he alleges that he was dismissed in contravention of Part 3-1 of the Act. It is not disputed by Mr Aston that the application was lodged outside of the 21-day limit imposed by the Act. Where an application is lodged outside of the 21-day time limit it can only proceed if the Applicant is granted a further period of time for lodgement under section 366(2) of the Act.

[2] Section 366 of the Act provides as follows:

(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."

[3] It is a requirement of the Form F8 Application that an applicant who is lodging an application outside of the 21-day time limit must address these issues when completing the form. Mr Aston completed the relevant section of Form F8 and, as such, I have made an assessment of each of those matters which are set out below.

[4] Mr Aston provided three reasons for the delay in filing this application.

[5] The first reason for delay was that Mr Aston had previously filed an unfair dismissal application (U2025/19046) with the Commission on 2 December 2025. That application was subject to a conciliation before Deputy President Binet on 11 February 2026, which did not resolve the matter, and subsequently Mr Aston discontinued his unfair dismissal application.

[6] The second reason provided by Mr Aston was he filed an earlier section 365 application (C2026/603) on 20 January 2026. Mr Aston discontinued this application on 31 January 2026, after being advised by Commissioner Hunt that, consistent with section 725 of the Act which prohibits multiple applications, a person must not make a dismissal-related application if the person has already made another dismissal-related application which has not been withdrawn or failed for want of jurisdiction.

[7] In combination, as Mr Aston concludes, the first two reasons essentially establish an argument that the delay was due to issues arising from jurisdictional sequencing, rendering him unable to pursue the causes of action he desired within the timeframe.

[8] The third reason provided by Mr Aston relates to his personal circumstances and mental state following the dismissal:

"during and immediately following the disciplinary process and termination, I was experiencing significant psychological distress arising from the circumstances of my dismissal, which further impacted my ability to immediately pursue this jurisdiction".

[9] In relation to the first reason provided by Mr Aston, Mr Aston had an opportunity to present his unfair dismissal case before Deputy President Binet. However, Mr Aston, of his own free will, discontinued that application. Mr Aston's decision to discontinue his unfair dismissal application does not mean he should have an automatic second opportunity to dispute his dismissal through the general protections jurisdiction.

[10] It is not the case (or at least the Commission's records do not reflect, and Mr Aston himself does not assert) that Mr Aston was notified of some jurisdictional deficiency in his unfair dismissal application which would have prevented him from pursuing that application and then promptly discontinued and lodged a more appropriate application for his circumstances. This reason provided by Mr Aston is not supportive of a finding of exceptional circumstances as required by the Act.

[11] In relation to the second reason, Mr Aston's decision to lodge a general protections application prior to the resolution of his unfair dismissal application against the requirements of section 725, is not in my assessment supportive of a finding that there are exceptional circumstances contributing to the delay in lodgement. Rather, it would appear that Mr Aston misunderstood or was unaware of the limitation imposed by section 725 of the Act in preventing multiple dispute applications in relation to an employee's dismissal being made concurrently. It is well established by the Commission that ignorance or misunderstanding of the provisions of the Act is not generally grounds for a conclusion that there are exceptional circumstances at play.

[12] In relation to the third reason provided by Mr Aston, Mr Aston has provided no evidence that supports his submission that he was experiencing significant psychological distress following the termination of his employment. It is generally accepted that the termination of employment is a stressful event, and such stress does not automatically give rise to a finding that there are exceptional circumstances preventing lodgement within the timeframe. It is also not consistent with the factual matrix that has occurred in this matter, Mr Aston was able to file his unfair dismissal application, within time, and attend an in-person conciliation before Deputy President Binet. Mr Aston was evidently capable and had the capacity to undertake the actions necessary to lodge a dismissal application within the same time period that applies here. Mr Aston has not provided any evidence that suggests he was incapacitated or unable to participate in the unfair dismissal process. I do not find this reason for delay supportive of a finding that there are exceptional circumstances.

[13] Mr Aston, in the documentation provided, also claims that, after discontinuing his unfair dismissal application, he acted diligently and in good faith to pursue my legal remedies, however the factual timeline of this application is not consistent with this claim. Mr Aston attended an unfair dismissal conciliation on 11 February 2026 and discontinued his unfair dismissal application on the same day; he was advised that the file was closed that same day. However, Mr Aston did not file this application until 20 February 2026, some nine (9) days later. I do not consider the period of nine days to be acting in a diligent manner but rather suggests the opposite, this subsequent application was not made promptly following the discontinuance of the unfair dismissal.

[14] Aston took action to dispute his dismissal through the lodging of his prior applications, since discontinued. In the circumstances of this matter and the Applicant's prior lodgements, I am not persuaded that this weighs in favour of granting an extension of time.

[15] Mr Aston submits the Respondent will not suffer any prejudice as they have been aware of his intention to dispute his termination since it took effect. Mr Aston confirmed that there are no new factual assertions or evidence that he is seeking to rely upon to challenge his termination. Given the size of the Respondent, it is unlikely that they would suffer a material prejudice if an extension of time was granted to Mr Aston. However, the absence of prejudice does not automatically mean an extension of time should be granted. I consider this to be a neutral consideration.

[16] Mr Aston submits that his case has merit. However, as is usually the case, the Commission does not have the benefit of having tested the evidence in a hearing. I therefore make no finding on merit and regard this matter as neutral in my consideration.

[17] In regard to fairness between those in like situations, Mr Aston's submissions in respect of this misapprehend the focus of the criteria in question. The consideration of this criterion is to draw the Commission's attention to people within an applicant's knowledge who are in a similar position to themselves and have had a finding issued by the Commission. To illustrate, if Mr Aston had identified another person in very similar circumstances to his own who had been given an extension, this would have assisted his case. In this case, with no people identified I regard the matter as neutral in my considerations of a finding of exceptional circumstances.

[18] Having considered the required matters of section 366(2) of the Act, I have determined that the matters under section 366(2) (c), (d) and (e) of the Act are neutral considerations. Further, I have determined that circumstances relevant to section 366(2) (a) and (b) are not supportive of a finding that there are exceptional circumstances in this instance and weigh against an extension of time being granted.

• [19] Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant's application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order to that effect has been issued.[1]

[1] [PR797718].

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