Fair Work Act 2009

s.365 - General protections

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

[1] Mr Geoff Pennisi (Applicant) has made an application under s.365 of the Fair Work Act 2009 (Cth) (Act) in which he alleges that he was dismissed by Prime Group Australia Pty Ltd (Respondent) in contravention of Part 3-1 of the Act.

• [2] The Applicant contends that 25 April 2025 should be the accepted dismissal date for the purposes of s.366[1] or in the alternative, that the dismissal occurred on 11 April 2025.[2] I accept that the dismissal took effect on 25 April 2025.

• [3] Section 366(1)(a) requires applications made under s.365 to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2). The Applicant contends that the dismissal occurred on 25 April 2025.[3] The 21-day period ended on Friday, 16 May 2025.

[4] The application was lodged on 19 November 2025 which is 187 days late (six (6) months and three (3) days). 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).

[5] The Applicant lodged some 53 pages of forms and submissions, some of which appeared to be generated by artificial intelligence (AI). Consequently, it was difficult to draw out all the relevant considerations from this amount of material, particularly in circumstances where several contentions were repeated numerous times throughout the material, and with each repetition, the submissions changed and the reasons evolved. The reasons given for the delay (s.366(2)(a)) include the following:

1. "I only became aware in November 2025 (upon medical advice) that I had suffered a psychiatric injury caused by the respondents' conduct. This injury materially impaired my capacity to file earlier.
2. I was engaged in genuine attempts at private resolution and overlapping regulatory complaints (Legal Services Commission Ref 50046810) until late October 2025.
3. The full extent of the adverse action (including post-dismissal threats and misleading QCAT filings) only crystallised in October 2025.
4. There is no prejudice to the respondents.
5. The application has strong merits.

• f. Fairness favours an extension."[4]

[6] Further, the Applicant contends that the reasons for the delay amounted to exceptional circumstances because they included that:

1. he was "simply locked out of all systems on 10 April 2025";

• b. his employment status remained unclear for some months;[5]
• c. from February to April 2025, he was excluded from the Respondent's systems and his duties;[6]
• d. payments of undisputed invoices were withheld between March and April 2025;[7]
• e. a constructive dismissal occurred on 11 April 2025 at the same time that the lockout and cessation of work occurred;[8]
• f. confusion was created by the Respondent as to the legal name of the employer in a services agreement dated 13 January 2025;[9]
• g. there existed "a dual-layer structure: a nominal 'services' document between BCPD and Prime versus the actual day-to-day employment relationship between the Applicant and Central" (sic);[10]
• h. the Respondent did not provide the Applicant with a termination letter;[11]
• i. dismissal was effected by conduct (lockouts, cessation of duties and pay), rather than by clear communication;[12]
• j. the Applicant's capacity to understand, decide and act within the statutory period was impaired by a work-related psychological injury;[13]

1. key dates in relation to capacity because of medical issues are:
   • Telehealth consultation for psychological symptoms: October 2025;
   • GP mental health plan and psychology treatment commenced: November 2025;
   • Work Capacity Certificate dated 24 November 2025 confirming deterioration and reduced functional capacity; and

• • WorkCover Queensland Claim S24HH308068 accepted for funding of psychological treatment while liability is assessed.[14]
• l. a medical letter confirmed the psychological incapacity, such that engaging in legal paperwork during that period would have been difficult;[15]
• m. the Applicant was actively engaged during the relevant period in the WorkCover, QCAT and LSC processes relating to the same factual matrix:[16]

"ongoing calls and enquiries from former clients and subcontractors, including on 6 November 2025, seeking project updates and payment information, with no redirection by the Respondents, showing that the Applicant remained the perceived point of contact and public face of the development function. The Respondents' subsequent written statement to WorkCover that the Applicant "was not employed" compounded this confusion and supports the explanation for delay;"[17]

• n. authorities recognise that psychological incapacity and employer-created confusion, particularly in the context of contested dismissal dates and complex corporate structures, can together amount to exceptional circumstances: see for example Iwasaki v Hays [2019] FWCFB 1761 at [42]-[45] (noting that this citation does not exist).[18]

• [7] Having regard to the above factors in combination, confusion over employer identity, absence of a clear termination communication, continuing external contact directed to the Applicant, psychological injury and medical evidence of incapacity, and the Applicant's focus on related statutory processes, the Commission is asked to exercise its power under s.366(2) to treat the Form F8 as if lodged within time.[19]

• [8] 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.[20] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[21]

• [9] Nevertheless, the absence of any explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, though it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all the relevant matters (including the reason for delay) and the assignment of appropriate weight to each.[22]

• [10] The evidence provided by the Applicant in support of his explanation included a WorkCover certificate dated 11 December 2025 (Certificate).[23] The certificate was signed by Dr Jessica Cassidy, who stated that she examined the Applicant on 11 December 2025, the same day the Certificate was issued.[24] Dr Cassidy also noted on the Certificate that the first time she saw the Applicant for this condition was 20 November 2025 and further, that the Applicant told her the condition had started on 11 April 2025.[25] Dr Cassidy also noted that the Applicant told her that the injury has occurred because of "workplace bullying, coercion by their in-house lawyer, and a sudden lockout from work systems" and that as a consequence she believed the Applicant was suffering "stress and anxiety", "a_ssociated difficulty sleeping_", "low mood and loss of confidence", "difficulty focusing", and "neck and shoulder strain from stress."[26] Dr Cassidy did not tick the box that said the Applicant had no capacity to work, but did note that any incapacity would have commenced on the date of 11 April 2025.[27] The Certificate also stated the Applicant would be reviewed again on 9 January 2026.[28]

[11] The Applicant did not put any other evidence before the Commission despite my Chambers directing him a number of times to ensure he had filed all the material upon which he relied. There was no mental health care plan or any other medical information that was asserted in his statements or submissions.

• [12] In circumstances where the dismissal occurred on 25 April 2025,[29] the 21-day period ended on Friday 16 May 2025 and the application was lodged on 19 November 2025, 187 days late (six (6) months and three (3) days). I do not accept that the medical certificate provide meets the bar required to establish exceptional circumstances for any significant part or period of the delay. The medical certificate resulted from a visit the Applicant had with Dr Cassidy on 20 November 2025, the day after the present application was filed. I have no doubt that the Applicant told Dr Cassidy that he was experiencing the symptoms which Dr Cassidy set out in the Certificate; however, I find it difficult to accept that Dr Cassidy could conclude that the Applicant felt these symptoms solely because the events the Applicant alleged relating to his dismissal had occurred. Dr Cassidy could not know whether they occurred in fact, she could only know that the Applicant told her they occurred. In any event, it does not explain all or part of the relevant period in any sufficient manner as to meet the requisite level of exceptional circumstance to persuade me to exercise my discretion to grant an extension for such a significant period of time.

[13] Further, I do not accept that the Applicant lacked capacity to file the present application on time. Firstly, as I have found, the Applicant did not provide medical evidence that supported that he lacked capacity to file the application for any substantial part of the period of 6 months and 24 days following the dismissal and the filing date of this application. Secondly, on the Applicant's own evidence, he was fit to pursue a WorkCover claim, a complaint to the Legal Services Commissioner, a complaint to the workplace health and safety regulator, and an application to the Queensland Civil and Administrative Tribunal (QCAT) over a period of some months. It is not complex or difficult to complete the short, simple Form F8 which can be lodged by email or even lodged by phone.

• [14] I accept that the Applicant's mental health was strained, however, for what period and to what extent is unclear. Further, it is well established that the stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute to, or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[30]

[15] In this matter, there is no medical evidence that the Applicant was affected in such a way for any substantial part of the period of delay, and I do not accept that these matters amounted to an exceptional circumstance for a lengthy delay in filing the Form F8 application form.

[16] Insofar as the Applicant contends that the lack of clear communication around the termination, lack of a termination letter, non-payment of disputed invoices were exceptional circumstances, given that I have accepted the latter date contended by the Applicant as the date of dismissal, I do not accept that these reasons, when weighed against the significant delay in filing, weigh in favour of granting an extension of time.

[17] The Applicant submitted that authorities recognise psychological incapacity and employer created confusion around the dismissal dates and complex corporate structures can together amount to exceptional circumstances, however the authority cited upon by the Applicant does not exist and in circumstances where I have accepted the Applicant's contention that the dismissal date was 25 April 2025, the confusion around the dismissal date is a moot point. Further it is unclear what external contact directed to the Applicant impacted the Applicant's ability to file on time.

[18] The Applicant also contends that the delay in discovering that he had suffered a psychiatric injury and understanding the full extent of the adverse action (including post-dismissal threats and misleading QCAT filings) are matters that create an exceptional circumstance to file the application late. This application is an application to deal with a dismissal dispute, in that the person alleges they were dismissed in contravention of Part 3-1 of the Act. Therefore, I do not accept that adverse conduct that occurred after the dismissal is relevant to providing an exceptional reason for not filing a dismissal dispute. I could accept that discovering that a psychiatric injury had resulted from the adverse action might amount to an exceptional circumstance in some circumstances, I note there is a lack of medical evidence to support this contention and, combined with the significant period of delay, I do not accept these weigh in favour of an extension of time.

[19] The Applicant also contended that confusion around the legal name of the employer in a services agreement contributed to his delay in filing. However, the Applicant acknowledges that a services agreement was in place, from which the entity's name could have been identified, and which he would have required by law to issue tax invoices to that entity. It was always open to the Applicant to put those names on his application to file it on time. I do not accept these reasons are sufficient to warrant the delay in this matter.

[20] The Applicant raises the issue of a dual layer structure with respect to his services agreement with the employer, however, it is not clear how the Applicant contends this played a role in the Applicant filing this application almost 7 months late. I do not accept that there is evidence before me that supports the Applicant's contention that this amounted to an exceptional circumstance.

[21] The Applicant states that he was confused about when his dismissal occurred for all the reasons set out in paragraphs [5]-[13]. The Applicant's own evidence was that his work had ceased, and he had stopped being paid. It is reasonable to accept the Applicant's contention that his engagement came to an end on 25 April 2025. I am satisfied the Applicant was aware the engagement came to an end at that time and that is why he made other external complaints and instigated proceedings with QCAT. I find that this is a neutral consideration pursuant to s.366(2)(b).

[22] In my assessment, when considering all the reasons for delay, individually and together, I find that they weigh against a conclusion that there are exceptional circumstances in this case.

[23] As to what action the Applicant took to dispute the dismissal, the Applicant submits that:

"From 11 April 2025 I repeatedly attempted resolution: emailed/called Knell and Richards, made formal demands in July 2025, received low-ball $4,000 offer (admitting termination), pursued LSC complaint (Ref 50046810 - multiple expansions), and QCAT claim (Q1010125). I only became medically aware of the injury in November 2025."[31]

• [24] The Applicant contends that he lodged claims with WorkCover Queensland, QCAT, the Legal Services Commission and a WHSQ psychosocial hazard complaint.[32]

"Even though the Fair Work application was late, I consistently disputed my treatment and the effective ending of my role:

• In February and March 2025, I complained in writing about bullying, coercion, misuse of legal authority and the retrospective IP/confidentiality deed. I refused to sign the deed and copied in an external lawyer.
• In April 2025, my Development Manager role was publicly contradicted in front of external consultants, followed by system lockout and cessation of work and income.
• On 31 July 2025, I wrote to Prime regarding outstanding payments and GST/sham contracting concerns.
• I commenced a QCAT proceeding in relation to unpaid amounts.
• I lodged a detailed professional conduct complaint with the Legal Services Commission about Mr Richards' conduct, which has been accepted for investigation.
• I sought medical treatment and lodged a WorkCover claim for psychological injury, which is now being funded for treatment.

These steps show that I did not acquiesce in the dismissal or ignore my position. I was actively disputing it in multiple forums."[33]

[26] I accept that the Applicant had a range of other disputes with the Respondent leading up to and after the termination of his engagement. The WorkCover claim and WHSQ complaint is a claim/complaint that can be made by an Independent Contractor and do not, in and of themselves, demonstrate that they were actions taken to dispute the dismissal. Further, the QCAT proceedings were in relation to unpaid invoices which, again, in and of itself, does not demonstrate a dispute about the dismissal and the complaint to the Respondent about GST/Sham contracting also does not demonstrate an intention to dispute the dismissal (s.366(2)(b)). When these are balanced with the significant delay, I consider this to be a neutral factor.

Prejudice to the employer (including prejudice caused by the delay

• [27] As to whether there would be prejudice to the Respondent if the extension was grated, the Applicant contends that there is no prejudice to the Respondent as the Respondents have been on notice since July 2025 that the Applicant was in dispute about the dismissal.[34] As I have found at paragraph [19], I am not satisfied that those actions put the Respondent on notice that the dismissal itself would be disputed. The Applicant also submits that all evidence has been preserved and the Respondent has actively defended related proceedings from the Applicant.[35] This must be considered in light of a delay of some 7 months. On the basis of everything before me, I do consider there to be a slight prejudice to the employer associated with the lengthy delay in this case (s.366(2)(c)). I consider this to weigh against an extension of time, albeit only slightly.

• [28] As to the merits (s.366(2)(d)), the Applicant submitted that his dismissal had strong merit and a strong public interest. The Applicant contends that the timing of repeated adverse action followed immediately after the exercise of a workplace right, that the Respondent would be unable to discharge the reverse onus, that a named Respondent was personally involved in the alleged offending actions, that the Respondent's conduct breached the "Managing the Risk of Psychosocial Hazards at Work Code of Practice" and relied on allegedly comparable successful cases in Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd[36] and Khayam v Navitas English Pty Ltd.[37] Further, the Applicant also submits that his engagement had the hallmarks of employment, sets out the workplace rights he exercised and sets out the adverse action he alleges was taken as a consequence.[38]

• [29] The Commission cannot make any findings on contested matters without hearing evidence.[39] Evidence on the merits is rarely called at an extension of time hearing.[40] As a result of this the Commission "should not embark on a detailed consideration of the substantive case".[41]

[30] I consider that the Applicant 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.

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

[31] With respect to the fairness as between the person and other persons in a like position (s 366(2)(e)), the Applicant asserts that:

"Fairness to other persons in a similar position strongly favours an extension:

• Employees who suffer psychological injury from workplace bullying, coercion, and

threats are often delayed in filing because the full impact (psychiatric diagnosis) only emerges months later. Denying an extension would punish victims for the very harm caused by the contravention.

• Self-represented applicants facing overlapping regulatory processes (LSC, QCAT) and genuine attempts at private resolution should not be penalised.
• Granting the extension upholds the protective purpose of Part 3-1 of the Fair Work Act and deters senior managers from using coercion and threats to silence workplace rights complaints.

• • Victims of psychological injury and self-represented applicants with overlapping complaints[42] should not be penalised; extension upholds protective purpose of Part 3-1."

• The circumstances here include:
  • no termination letter;
  • dismissal by conduct only, in the middle of a 12-month contract;
  • a recognised psychological injury and a lacunar infarction affecting my functioning, with WorkCover funding psychological treatment; and

• o overlapping QCAT, WorkCover and Legal Services Commission matters arising from the same events.[43]
• • Most applicants do not have this combination of unclear dismissal date, mental and neurological injury, and multiple concurrent legal processes. Allowing an extension would not prejudice other applicants in similar situations, but refusing an extension would permanently prevent this serious claim from being considered on its merits."[44]

• [32] As a Full Bench has noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[45] In particular, the history of this provision indicates that it refers to "other employees of the employer agitating the same or similar substantive issues".[46] In Whittle v Redi Milk Australia Pty Ltd,[47] Commissioner Ryan found that the key issue is that the applicant seeking an extension of time is considered in relation to other applicants employed by the same employer, and affected by the same issue, who filed applications in time.

[33] In the present matter the Applicant does not bring to our attention any specific employees of the Respondent who have the same or similar substantive issues nor any relevant authorities, nor do I consider that there are any matters that are relevant to fairness between the Applicant and other persons in a like position (s.366(2)(e)). I regard this as a neutral consideration.

[34] 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. I order accordingly.

[1] Ibid at [1.4.2]. See also Applicant's Response to lateness notice dated 1 December 2025 at [1].

[3] Applicant's Submissions and Statement dated 18 November 2025 at [1.4.2].

[5] Applicant's Submissions and Statement dated 18 November 2025 at [1.1].

[8] Ibid. See also Applicant's Response to lateness notice dated 1 December 2025 at [1].

[10] Ibid at [1.4.1 (b)]. See also at [2.1].

[11] Ibid at [1.4.1 (c)]. See also Applicant's Response to lateness notice dated 1 December 2025 at [1].

[12] Ibid at [1.4.1 (d)]. See also Applicant's Response to lateness notice dated 1 December 2025 at [1].

[13] Ibid at [1.4.1 (e)]. See also Applicant's Response to lateness notice dated 1 December 2025 at [1].

[14] Applicant's Response to lateness notice dated 1 December 2025 at [1].

[15] Applicant's Submissions and Statement dated 18 November 2025 at [1.4.1 (f)].

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

[23] Digital Court Book p.97. See also p.118. See also p.168.

[28] Digital Court Book p.97. See also p.118. See also p.168.

[29] Applicant's Submissions and Statement dated 18 November 2025 at [1.4.2].

[30] Becke v Edenvale Manor Aged Care [2014] FWCFB 6809 at [9].

[32] Applicant's Submissions and Statement dated 18 November 2025 at [1.3].

[33] Applicant's Response to lateness notice dated 1 December 2025 at [2].

[36] Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd [2015] FWCFB 599.

[37] Khayam v Navitas English Pty Ltd [2017] FWCFB 5162; Ibid at [4.4].

[38] Applicant's Response to lateness notice dated 1 December 2025 at [4].

[39] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].

[43] Applicant's Response to lateness notice dated 1 December 2025 at [5].

[45] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

[46] See Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090, [19].

[47] Whittle v Redi Milk Australia Pty Ltd [2016] FWC 3773 at [38].

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