s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - application made outside of 21-day time limit - no exceptional circumstances - application dismissed.

[1] On the 4 January 2026, Mr Kanishka Saighani (the Applicant) lodged an application (the Application) pursuant to s. 365 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment on 9 December 2025 contravened his workplace rights.

[2] Section 366(1) of the Act states that a general protections dismissal dispute application must be made 'within 21 days after the dismissal took effect', or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 366(2) of the Act. The period of 21 days ended at midnight on 30 December 2025. The Application was therefore filed 4 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s 366(2) of the Act.

[3] The background to the application may be shortly stated. The Applicant and a significant number of his colleagues complained to the First Respondent's Management, of conduct engaged in by the First Respondent's Site Manager. The conduct complained of, included alleged bullying, intimidation, threats and other unsafe conduct. The Applicant says an assurance was provided by the First Respondent on or about 30 September 2025 that the Site Manager would be removed from the Second Respondent's site. The Applicant along other employees of the First Respondent withdrew their labour on 8 December 2025 in response to the return to site of the Site Manager who had been the subject of the complaints. The Applicant along with 12 of his colleagues who left the site on 8 December 2025 were then dismissed by the First Respondent on 9 December 2025.

[4] Following allocation of the matter to my Chambers on 19 January 2026, I reviewed the Form F8 filed by the Applicant and decided it was appropriate to determine the matter on the papers.

[5] Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute if an application is made under s 365. For an application to be validly made under section 365, it (the application) must be made within 21 days after the dismissal took effect or such further period as the Commission allows pursuant to section 366 of the Act.

• [6] The Act allows the Commission to extend the period within which a general protections dismissal dispute application can be made only if it is satisfied that there are 'exceptional circumstances.' Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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 can be considered exceptional.[2]

[7] The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

[8] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

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

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

[9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.

• [10] For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 30 December 2025. The delay is the period commencing immediately after that time until 4 January 2026, although circumstances arising prior to that day may be relevant to the reason for the delay.[3]

• [11] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4] An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and 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. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[5].

[12] The Applicant advances the following reasons for the delay in filing of his application. Firstly, he was not aware of the 21-day filing period. Secondly, after his shifts were cancelled on 9 December 2025, he attempted to resolve the matter directly with the employer and allowed a reasonable time for it to respond. Thirdly, English is not the Applicant's first language. Finally, he was waiting for a friend to help him with the process and his friend was unavailable to assist him during the New Year holiday period. All of these matters delayed completion of the application until 4 January 2026 according to the Applicant.

• [13] The Applicant's reliance on his ignorance of the 21-day filing period in explaining the delay is misplaced and rejected. In doing so I rely on the reasoning of the Full Bench in Nulty v Blue Star Group Pty Ltd[6] (Nulty) which said as follows when considering a general protections dismissal matter on appeal before it;

"[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances." In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance."

[14] In relation to the second ground advanced by the Applicant, he sent an email to the Respondent on 10 December 2025 explaining the reasons why he left the site on 8 December 2025 and that he felt unsafe. He went on to request a proper investigation into the Site Manager's behaviour and payment for time lost. He also requested a response to his message to management. I accept that the Applicant did attempt to resolve the matter directly with the First Respondent's management. He fails however to explain the 'reasonable period of time' he allowed for a response. The Applicant still had 20 days from the date he sent his message to management within which to file his application. I am not satisfied that awaiting a response for a 'reasonable period' explains the filing delay, as it would have been quite apparent to the Applicant well before the 30 December 2025 that a positive response from management would not be forthcoming.

[15] Turning to the Applicant's claim that English is not his first language, I reject that explanation as well. With ABS data revealing that in June 2024 over 30% (8.6 million) of Australia's population was born overseas, it is safe to assume that a significant proportion of Australia's population can claim English as their second language. The fact that English may not be the Applicant's first language is far from 'unusual, special, or uncommon'. In fact, in modern Australia it is quite routine. In any case, the material filed by the Applicant in support of his application demonstrates a reasonable level of proficiency in English, including the above-referred message sent to management by the Applicant on 10 December 2025. Even were I to accept that the Applicant's English language proficiency was weak, there are community resources and support services available for persons where English is not there first language. I also note that twelve of the Applicant's colleagues who were dismissed on 9 December 2025 and who also claim English as their second language were able to complete and file their general protections dismissal dispute applications on 16 December 2025, which was well within the required 21-day filing period.

[16] Finally, I turn to the Applicant's explanation that he was waiting on a friend to assist in the preparation of the application. I firstly observe that the Application is in largely identical terms to applications filed in the twelve other similar matters involving former employees of the First Respondent. It is patently obvious from reading the Application that much of its content is either copied or based on the applications filed by the Applicant's colleagues, all of which applications were filed on 16 December 2025. In these circumstances, the claim that the Applicant was prevented from filing the Application at an earlier by the unavailability of a friend is rejected.

[17] It follows from the foregoing that the Applicant has not provided an acceptable explanation for the filing delay. This weighs against a finding of exceptional circumstances.

[18] The Applicant raised the issue of his dismissal with the First Respondent on 10 December 2025 and then waited he says for a reasonable period of time for a response. I have already considered this action in the context of the Applicant's explanation for the delay in filing the Application. Even though I accept that the Applicant took action to dispute his dismissal, it did not prevent the Application being filed within the 21-day period. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

[19] The Application was filed 4 days outside of the 21-day period. I find in the circumstances; there would be no prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.

[20] As to the merits of the application, the Applicant contends that he was dismissed for having raised a workplace compliant about a supervisor and then left site because of safety concerns. In applications of this kind, being interlocutory in nature, it is inappropriate to express a concluded view about the merits of an application. Nor is it possible to thoroughly test the disputed claims. In any event, in applications under s.365, the Commission's function at this stage of an application is to convene a conference, not determine the merits. It is sufficient for present purposes to note that on the material available to me, the Applicant has an arguable case as to a contravention of the general protections provisions of the Act. I consider the merits to be a neutral consideration.

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

[21] The Applicant raised that allowing his application to proceed would be fair to other persons in a like position where they have been dismissed or had shifts cancelled. I disagree as cases of this kind will generally turn on their own facts. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

[22] Having regard to the matters I am required to take into account under s 366(2) of the Act, and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2) of the Act. Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

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

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

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