s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - out of time - time extended - applicant intended to file a s.365 application but instead mistakenly filed a s.394 application.

• [1] On 27 October 2025, Ms Ashley Tomlinson (Ms Tomlinson / the Applicant) applied to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for an application to deal with a general protections dispute involving dismissal. The Respondent in the matter was named as ATP Science Pty Ltd (the Respondent).

• [2] The Respondent raised the jurisdictional objections that the application was filed out of time, and out of an abundance of caution, that the Applicant did not meet the minimum employment period to file an unfair dismissal application.

• [3] On 22 October 2025, the Applicant filed a Form F2, application for an unfair dismissal remedy. The application was withdrawn on 27 October 2025. Later that afternoon, the Applicant filed the Form F8.

• [4] On 27 November 2025, my chambers wrote to the parties regarding the multiple applications issue. On the same day, the Applicant responded providing submissions and documentary evidence to support that s.725 of the Act was not engaged. Based on the submissions provided by the Applicant confirming that she withdrew her s.394 unfair dismissal application prior to lodging the present s.365 application, I consider that issue settled.

• [5] I now proceed to deal with the out of time issue on the papers without further submissions from the parties.

• [6] It is apparent from reviewing the Form F2 filed inside the 21-day statutory time limit, that the Applicant was asserting in the Form F2 that that the Respondent had taken unlawful adverse action against because of a protected attribute in s.351 of the Act. It is reasonably clear this is not a case where the Applicant had initially filed an unfair dismissal application and after subsequently learning she could not do so because she did not satisfy the minimum employment period in s.383 of the Act, withdrew the unfair dismissal application and then filed a general protections application.

• [7] Whilst it is true the Applicant did not satisfy the minimum employment period to file an unfair dismissal application, in this case it is plain based on what the Applicant, who is self-represented, said in the initial Form F2 application, that the Applicant always intended to pursue an application based on a claim of unlawful adverse action, and simply lodged the incorrect form.

• [8] I am satisfied that as the Applicant advanced what is properly characterised as general protections claim within time but on the incorrect form, that is an exceptional circumstance favouring an extension of time of three days. The Applicant promptly filed the Form 2 within time and filed a Form 8 on learning of her error. The substance of the application did not change and was always in the nature of a general protections claim. The reason for the delay favours extending time.

• [9] The Applicant articulated her claim and filed it within time. Whilst the Respondent was never served with the Form F2 as it was withdrawn before it was served, the fact that the Applicant had articulated her general protections claim within time favours extending time.

• [10] The Respondent will not suffer any significant level of prejudice by extending the time limit by 4 days. This is a neutral matter.

• [11] I intend the treat the merits as a neutral matter.

Fairness between the person and other persons in a similar position

• [12] There is no specific information before me which makes s.366(e) a relevant consideration.

Having weighed each of the matters I am required to take into account, I have concluded that there are exceptional circumstances in this case warranting an extension of 4 days. The jurisdictional objection is dismissed, and the matter will be listed for conference.

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