s.365 - General protections

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

[1] On the 22 February 2026, Mr Yasanjeewa Nanayakkara (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 22 September 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 13 October 2025. The Application was therefore filed 132 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] 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.

[4] 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.

• [5] 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]

[6] 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.

[7] 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.

[8] 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.

• [9] For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 13 October 2025. The delay is the period commencing immediately after that time until 22 February 2025, although circumstances arising prior to that day may be relevant to the reason for the delay.[3]

• [10] 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].

[11] The Applicant submits that the delay in filing his application may be explained by the following factors;

• on termination of his employment, his primary objective was securing a new position as he needed to return to Sri Lanka due to his grandmother's serious health concerns;

• he faced the financial burden of engaging legal services without an income; and

• he travelled from Melbourne to Sri Lanka in November 2025 and returned to Melbourne in January 2026.

[12] The matters advanced by the Applicant do not provide an acceptable explanation for the entire period of delay for the reasons that follow.

[13] Firstly, the Applicant has conceded he prioritised his search for alternate employment over making his general protections application. The fact that the Applicant may have needed to secure alternate employment is far from unique or unusual and in fact, it would be unusual if a person was not compelled to seek alternate employment. While prioritising his job seeking activities is perfectly understandable, the premise of the submission appears to be that the search for alternate employment prevented the preparation and filing of the general protections application at an earlier time. Based on the relatively simple F8 form required to be completed and lodged to make an application, the submission is rejected. Further, the fact that the Applicant was able to engage in job seeking efforts in the wake of his dismissal indicates he had the capacity to engage with what is a straightforward process of preparing and filing an application with the Commission.

[14] Secondly, the fact that the Applicant may have been financially constrained in seeking legal assistance is far from unusual and does not explain the filing delay. The absence of legal representation or advice is not a barrier to making a general protections application, in circumstances where there is information and other resources available to self-represented parties on the Commission's website.

[15] Finally, while the Applicant has not specified the exact dates of his travel to and from Sri Lanka, it is clear enough that he could have prepared and filed his application before he departed; noting that the 21-day period ended on 13 October 2025. Even had he departed as early as 1 November 2025, he has failed to explain the delay between 13 October 2025 and 1 November 2025. Of course, it may be that he departed on a much later date in November. Similarly, he says he returned in January 2026 though the specific date of return is not identified, and yet he still failed to file his application until 22 February 2025. Taking the Applicant's potential absence from Australia at its greatest from 1 November 2025 - 31 January 2026, he has still failed to explain the delay from 13-31 October 2025 and from 1-22 February 2026.

[16] It follows from the foregoing that I am not satisfied that the Applicant has provided an acceptable explanation for the entire period of the delay in filing the Application. This weighs strongly against a finding of exceptional circumstances.

[17] It is not apparent that the Applicant took any action to contest his dismissal after it took effect on 22 September 2025, other than lodging the Application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

[18] The Application was filed 132 days outside of the 21-day period. I find that in the circumstances; there would be significant prejudice to the Respondent if an extension of time were to be granted. This weighs against a finding of exceptional circumstances.

[19] As to the merits of the application, the Applicant submits that while he made significant professional contributions and generated new business opportunities for the Respondent, he was dismissed by way of a forced resignation following his taking a temporary absence from work that was supported by a medical certificate. 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 Applicant's 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

[20] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.

[21] The Applicant has not brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. 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].

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