s.365 - General protections

Insight Integration Technology Pty. Limited, Brendon Stone

General protections application involving dismissal filed out of time - circumstances not exceptional - application dismissed.

• [1] On 21 October 2025 Mr Khan made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth). Mr Khan claims that he was dismissed from his employment with Insight Integration on 22 September 2023 and that the dismissal contravened the general protection provisions of the Act.

• [2] Section 366(1) of the Fair Work Act 2009 (Cth) (FW Act) requires that general protection claims be lodged within 21 days after the dismissal took effect, in Mr Khan's case being midnight on 13 October 2023. Mr Khan's application was made more than 2 years late.

• [3] Section 366(2) gives the Fair Work Commission a discretion to allow an extension of time to lodge a general protections claim, but only if there are exceptional circumstances.

• [4] Early in the proceeding I expressed my preliminary view that Mr Khan's application for an extension of time had no reasonable prospects of success. Mr Khan was invited to discontinue his application but Mr Khan chose not to do so.

• [5] Having now conducted a full hearing, where Mr Khan has had a fair opportunity to present his case for an extension of time, I am satisfied that there are no exceptional circumstances that could allow me to make an order to grant Mr Khan an extension of time.

• [6] Mr Khan's case is very poor and as such, in this decision I have only included a brief summary of the extensive, but largely irrelevant evidence Mr Khan sought to tender.

• [7] Mr Khan commenced employment with Insight Integration in early 2023 as an IT Support Engineer. He was dismissed on 22 September 2023. Mr Khan said:

"Immediately after my dismissal, my mental health deteriorated sharply. I suffered from severe anxiety, panic attacks, difficulty sleeping and overwhelming distress. My physical health also declined. I developed laryngitis and respiratory illness, which made it difficult or impossible to speak during job interviews and daily activities.

... During this period my focus was on basic survival - finding food, staying safe and trying to access medical and mental health care. I was not in any realistic position to prepare formal legal documents."

• [8] Mr Khan was homeless for approximately one month in January 2024 when he lost his student accommodation on 31 December 2023. Since February 2024 he has lived with a friend and since March 2024 he has worked as a contractor in the IT industry.

• [9] Section 394 imposes the same time limit on making an application for an unfair dismissal remedy. Sections 394(3) and 366(2) are in almost identical terms. Section 394(3) contains one additional factor that is not included in s.366(2): "whether the person first became aware of the dismissal after it had taken effect". The Commission's approach to extensions of time under s.366(2) and under s.394(3) are substantially the same.

• [10] Section 366 the FW Act is in the following terms:

(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."

• [11] Section 366 specifically requires the Commission to take into account the matters listed in s.366(3). The Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, (2018) 273 IR 156, (Stogiannidis) described how the Commission should take these considerations into account:

(a) generally the Commission must consider all of the relevant circumstances because factors considered in combination might support a finding of exceptional circumstances even though no one particular factor is exceptional (at [17] and [38]);

(b) the obligation to "take into account" the matters set out in s.366(3) means that each of the listed matters must be treated as a matter of significance in the decision-making process insofar as it is relevant (at [19]);

(c) no one factor needs to be exceptional in order to enliven the discretion to extend time (at [38]); and

(d) individual matters might not be particularly significant when viewed in isolation, but the Commission must consider the matters collectively and ask whether they disclose exceptional circumstances (at [39]).

• [12] The exceptional circumstances requirement in s.366(2) sets a 'high hurdle' for applicants to overcome. The Full Bench in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, (2011) 203 IR 1 described exceptional circumstances as "a situation which is out of the ordinary course, unusual, special or uncommon":

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

• [13] The reason(s) for the delay must be taken into account (per s.366(2)(a)). Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay (per Stogiannidis at [30]-[40] and Keith Long v Keolis Downer t/as Yarra Trams [2018] FWCFB 4109 at [36], [2018] FWCFB 4109; (2018) 279 IR 361 at 370 (Yarra Trams)).

• [14] That said, if an applicant does not have a credible explanation, the Commission is unlikely to find that exceptional circumstances exist - at least exceptional circumstances that support an extension of time.

• [15] The test invariably applied is whether an applicant has a 'credible or reasonable' explanation for the delay. The reason(s) for the delay are not measured in a vacuum. The reason(s) for the delay are assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondly in deciding whether the Commission should exercise its discretion to grant the extension.

• [16] A good, credible or even reasonable explanation for the delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good, credible explanations for delay are not granted an extension of time because they cannot firstly establish that there are exceptional circumstances.

• [17] The Commission must consider the reason for the delay over the whole of the period between the dismissal and the commencement of the proceedings, rather than just the period after time limit has expired (see Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3 [2016] FWCFB 349 at [31] (Diotti).

• [18] Mr Khan submitted that the following exceptional circumstances prevented him from lodging his application within 21 days of his dismissal:

(a) homelessness and lack of stable accommodation;

(b) severe physical illness, including laryngitis and respiratory problems;

(c) serious psychological injury and deterioration caused by prolonged bullying and dismissal;

(d) lack of access to a computer, internet and a safe environment to prepare documents; and

(e) financial crisis and day-to-day survival needs.

• [20] Mr Khan said that his student accommodation finished on 31 December 2023 and that he was not able to find other accommodation because he had lost his job. At the hearing Mr Khan indicated that he was homeless until the end of January 2024 when a friend allowed him to sleep on her lounge. Mr Khan still lives at this friend's premises. At one point in the hearing Mr Khan submitted that his living arrangements over 2024 and 2025 were the same thing as being homeless. In the context of an extension for time to commence legal proceedings, I do not accept that submission.

• [21] From March 2024 onwards Mr Khan has worked as an IT consultant. Mr Khan submitted that he did not have access to computers and internet while he was homeless which prevented him from making his claim earlier. I do not accept this submission, at least in relation to the period from March 2024 until October 2025, because for this whole period Mr Khan has worked in IT.

• [22] At best, Mr Khan was homeless for one month in the two years and was, perhaps, without internet and computer access for that month. It is unfortunate that Mr Khan was homeless, however I do not accept that his homelessness was exceptional circumstances.

• [23] Mr Khan relied on what he said was a "severe physical illness", including laryngitis and respiratory problems. Mr Khan provided a medical certificate from November 2023 indicating that he was unfit for work for one week because he was suffering from laryngitis. Mr Khan also relied upon a pathology request form dated 31 October 2025 to say that he is still suffering some kind of respiratory illness. The connection between Mr Khan's respiratory illness and his capacity to make a general protections application is not clear. The evidence provided by Mr Khan is not convincing and, even if I was to accept that Mr Khan suffers from a respiratory illness, I do not find that there are exceptional circumstances that could allow the Commission to grant an extension of time.

• [24] Mr Khan relied upon what he said is a "serious psychological injury and deterioration caused by prolonged bullying and dismissal". Sometimes an applicant's medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant's mental illness and in other cases the Commission has not found exceptional circumstances. Generally the following principles apply:

(a) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves;

(b) a depressive illness might point towards an exceptional circumstance if the illness had a material impact upon Mr Khan's capacity to lodge the application within the statutory time limit;

(c) the evidence should positively demonstrate that Mr Khan's depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame; and

(d) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient.

(see Mamo v ICLED Australia Pty Limited T/A Signs National Group [2021] FWC 3903 at [20] - [25] and the cases cited therein).

• [25] Mr Khan referred to two documents to support his argument. The first appears to be a referral from a GP to a psychologist dated 3 November 2024, being more than one year after Mr Khan was dismissed. The second document is a screenshot from Mr Khan's phone of an appointment he has on 12 December 2025 to see a psychologist. At the hearing Mr Khan said that in the two years since his dismissal he has not ever seen a psychologist about his mental health. I do not accept that these documents show that Mr Khan has a serious psychological injury. Even if Mr Khan did provide documentation that established he suffers from a mental illness, Mr Khan has not explained how he has had capacity to work as an IT consultant since March 2024 but has not had the mental capacity to make his general protections application. I do not find that there are exceptional circumstances related to Mr Khan's mental health that could allow the Commission to grant an extension of time.

• [26] Mr Khan's reliance on a "lack of access to a computer, internet and a safe environment to prepare documents" is not accepted. Mr Khan has worked as an IT consultant since at least March 2024.

• [27] Mr Khan's "financial crisis and day-to-day survival needs" are not exceptional circumstances. As referred to above, Mr Khan was homeless for one month but in the two years since his dismissal from Insight Integration he has worked in other jobs and worked continuously as an IT consultant since March 2024. Mr Khan could have applied to waive the application fee. I do not find that there are exceptional circumstances related to Mr Khan's financial crisis and day-to-day survival needs that could allow the Commission to grant an extension of time.

• [28] Mr Khan has not provided a credible and reasonable explanation for the whole period of the delay. The reasons for delay point against a finding that there were exceptional circumstances.

• [29] In taking into account all of the above, Mr Khan's explanation for the delay does not point towards the existence of exceptional circumstances. More so, even if I were to find that there were exceptional circumstances, Mr Khan's explanation for the delay does not support the granting of an extension of time.

• [30] I must consider the "prejudice to the employer including prejudice caused by the delay" (s.366(2)(c)).

• [31] Insight Integration did not lead any evidence in the proceeding, which is understandable given that the application was so weak.

• [32] At the hearing Mr Phillips made a submission about the prejudice to Insight Integration if it were now called upon to defend a general protections claim two years after Mr Khan had left.

• [33] Given the extraordinary delay in this matter I accept, without requiring proof, that Insight Integration has suffered prejudice because of the delay.

• [34] The length of the delay is exceptional - which is not a factor in Mr Khan's favour.

• [35] In this the prejudice suffered by Insight Integration speaks against any finding that there are exceptional circumstance that could allow the Commission to grant an extension of time.

• [36] The merits of the application must be taken into account (s.366(2)(d)) when considering whether there are exceptional circumstances and the extension of time more generally. The Commission is not required to, and does not, conduct a full inquiry into the merits to satisfy s.366(2)(d). There are sound reasons why the Commission does not do so - most notably because parties should not have to present their evidentiary case twice (see Yarra Trams at [72]).

• [37] In this context it is sufficient for the Commission to make a preliminary assessment about whether there is any merit to the application (see Thomas Cosgrove v Clarity Interiors [2020] FWCFB 5464 at [33], citing Kornicki v Telstra-Network Technology Group (1997) 140 IR 1 at 11, Print P3168).

• [38] The Commission is less likely to find that there are exceptional circumstances (that support an extension of time) if the application has little or no apparent merit. The Commission is even less likely to exercise its discretion to grant an extension if there is little apparent likelihood that the application will be successful after a full trial (see Yarra Trams at [71]).

• [39] I do not consider the merits of the present case point toward a finding that there are exceptional circumstances. I consider the merits to be a neutral consideration.

• [40] The following matters are in my view neutral considerations. First, Mr Khan was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full 21-day period to lodge an application. Secondly, I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Khan and other persons (s. 366(2)(e)).

• [41] As referred to above, the Full Bench in Stogiannidis reasoned that no one factor needs to be exceptional in order to enliven the jurisdiction to extend time, and individual factors might not be particularly significant when viewed in isolation, but that I must also consider the matters collectively and ask whether they disclose exceptional circumstances (Stogiannidis at [38]-[39]).

• [42] In this case none of the above matters considered individually point towards there being any exceptional circumstances. After reviewing the matters collectively I am still not satisfied that there are exceptional circumstances.

• [43] Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by Mr Khan, I am not satisfied that there are exceptional circumstances. In my view, there are no 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). Accordingly, the application for a general protection remedy must be dismissed.

• [44] The application under s.365 of the Fair Work Act 2009 (Cth) made by Mr Bapista Khan on 21 October 2025 is dismissed.

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