Fair Work Act 2009

s.365 - General protections

Application to deal with a general protections dismissal dispute - application filed out of time - application for extension of time - extension granted

• [1] On 1 March 2025, Berenice Martin commenced employment as Chief Operation Officer of AAA Mi Casa Renovations, a business conducted by Naim Dianati.[1] Under the terms of her employment, she was to be paid a monthly salary.
• [2] The time for payment of Ms Martin's salary for the first month of her employment came and went. Ms Martin made repeated requests of Mr Naim that her salary be paid. This continued over a number of days, up to and including 11 April 2025.
• [3] On 11 April 2025, Mr Dianati terminated Ms Martin's employment with immediate effect. He did so by way of a text message. Ms Martin believed her dismissal was in retaliation for her having requested Mr Dianati to pay her unpaid wages.
• [4] Ms Martin provided the following description of subsequent events:
  • (1) At 1.25pm on 2 May 2025, Ms Martin filed an unfair dismissal application under section 394 of the Fair Work Act 2009[2] ("UD Application").

• (2) Following a call with the Fair Work Ombudsman later that day, Ms Martin realised she did not meet the minimum employment period for an unfair dismissal claim.[3] However, she did not withdraw the UD Application.

(3) At 5.41pm on 2 May 2025, Ms Martin filed an application for the Commission to deal with a general protections dispute under section 365 ("First GP Application"). She did so based on the information she had received from the Fair Work Ombudsman helpline.

(4) Ms Martin made several calls to the Commission seeking to follow up on the status of her applications. She did not receive a response until 20 May 2025. On that day she was informed that she was ineligible to bring an unfair dismissal application, as she had not completed the minimum employment period. She was advised to withdraw the UD Application. She did so immediately.

(5) She was not told during that conversation that there was any irregularity in relation to the First GP Application.

• (6) Ms Martin called the Commission at 1.25pm on 23 May 2025 to follow up on the First GP Application. During this call, she was informed that the First GP Application was invalid as it was made when the UD Application was still on foot.[4] She was further advised that this had not been remedied by the withdrawal of the UD Application.

(7) At 2.59pm on 23 May 2025, Ms Martin filed a new application under section 365 ("Current GP Application"). It is that application which is currently before the Commission.

• [5] An application under section 365 must be made within 21 days after the dismissal took effect, unless the Commission allows a further period.[5] The 21-day period ended on 2 May 2025. These proceedings were commenced on 23 May 2025 with the filing of the current GP Application. Ms Martin requires the Commission to allow her an extension of time to file the application. She applies for such an extension.

• [6] Mr Dianati filed no evidence or submissions in respect of the extension application.[6]

• [7] To grant Ms Martin an extension of time, I must be satisfied that there are "exceptional circumstances", taking into account:[7]
  • (1) the reason for the delay. The "delay" is the period between the end of the 21-day period and the filing of the application.[8] In this case, the delay is 21 days;

(2) any action taken by Ms Martin to dispute the dismissal;

(3) prejudice to Mr Dianati (including prejudice caused by the delay);

(4) the merits of the Current GP Application; and

(5) fairness as between Ms Martin and other persons in a like position.

• [8] The requirement to take these matters into account means that each of them must be considered and given appropriate weight.[9] They are not conditions to be satisfied.[10]
• [9] Circumstances will be "exceptional" if they are out of the ordinary course, or unusual, or special, or uncommon. They do not need to be unique, or unprecedented, or very rare.[11] Exceptional circumstances may include:

• (3) a combination of ordinary factors which, when taken together, are seen as exceptional.[12]

• [10] The test of "exceptional circumstances" establishes a high hurdle for an applicant for an extension.[13] It is for Ms Martin to demonstrate that exceptional circumstances exist.[14]
• [11] But a finding that exceptional circumstances exist is not the end of the matter. The Commission still has a discretion whether or not to allow an extension of time.[15]
• [12] So, I need to answer these questions:

(1) Do exceptional circumstances exist in this matter, taking into account the criteria at referred to above?

(2) If so, should I exercise my discretion to allow Ms Martin an extension of time?

• [13] For the following reasons, the answer to both questions is yes.

Why I have decided that there are exceptional circumstances

• [14] Ms Martin does not necessarily have to provide a reason for the entire period of the delay.[16] She also does not have to show that the reason for the delay is itself exceptional. It is just one of the factors to be taken into account. However, a credible explanation for the entirety of the delay will generally assist an applicant. On the other hand, the absence of an explanation for the delay (or part of it) will generally count against them.[17]
• [15] Ms Martin submitted that the delay was the result of a "procedural misunderstanding". Her arguments may be summarised in this way:

(1) She had originally sought to commence proceedings within the 21-day time limit.

(2) She did not know that she could not commence the First GP Application while the UD Application was on foot.

(3) She had actively followed up with the Commission on her applications. By the time she got speak to a member of the Commission's staff, the time limit had elapsed. While she was advised on 20 May 2025 to withdraw the UD Application, she was not made aware until 23 May 2025 that she could not proceed with the First GP Application.

(4) She moved promptly to rectify the situation, once it had been brought to her attention. She filed the Current GP Application about an hour and a half after being told that the First GP Application could not proceed.

(5) At the time, she was suffering from "significant emotional and financial hardship, including loss of housing, employment, and financial independence".

• [16] I accept that Ms Martin was unaware that she was precluded from making the First GP Application after she had filed the UD Application. Even so, mere ignorance of the law would not be a sufficient basis for the grant of additional time.[18] However, I reiterate that it is not necessary that the reason for the delay be exceptional of itself. It is also relevant in this regard that Ms Martin is a reasonably recent entrant to Australia, having arrived approximately 18 months ago.
• [17] There are several other matters that I think are pertinent. First, Ms Martin originally sought to commence proceedings on 2 May 2025. This was before the end of the statutory time limit, albeit on the final day of that period.

• [18] Second, she had actively sought to check on the status of her applications with the Commission. She was not made aware until 21 days after she had filed the First GP Application that it was invalid. I make that observation without in any way suggesting criticism of the Commission's staff.

• [19] Third, Ms Martin filed the Current GP Application within 90 minutes or so of being told that the First GP Application could not proceed. She did not sit on her hands.

• [20] Having regard to all of the circumstances, I am satisfied that Ms Martin has provided an acceptable explanation for the delay in this case. This argues in favour of a finding of exceptional circumstances.

• [21] It will be relevant if an employee has taken action taken to dispute their dismissal, other than by applying under the Act. It will show, and put the employer on notice, that the employee actively challenges their dismissal. This may support an extension of time.[19]
• [22] Ms Martin did not bring to my attention any relevant matter concerning this consideration. There is nothing to suggest that she disputed her dismissal prior to filing the UD Application and First GP Application on 2 May 2025. Consequently, I consider that this factor argues neither for nor against a finding of exceptional circumstances.

Would Mr Dianati suffer prejudice (including prejudice caused by the delay)?

• [23] As Mr Dianati has not filed any material opposing the extension application, there is nothing to suggest that he would suffer any relevant prejudice were I to grant an extension of time. However, the absence of prejudice does not of itself support a finding that exceptional circumstances exist.[20] This consideration argues neither for or against an extension of time.

• [24] For present purposes, it is sufficient for Ms Martin to show that her claim has some merit. The greater the merit, the more weight will be given to this factor.[21] However, the Commission should not embark on a detailed consideration of the substantive case in an extension of time application.[22]
• [25] In her Current GP Application, Ms Martin contended that her dismissal was a retaliatory act in response to her raising concerns that her salary had not been paid. She stated that she had spoken to Mr Dianati several times after it was due, asking for it to be paid. She did so again on 11 April 2025. She said that in response, Mr Dianati sent her home and later that day terminated her employment by text message. She further stated that Mr Dianati later agreed to her working out her notice period. However, he peremptorily sent her home after she had arrived for work.
• [26] Ms Martin also stated that Mr Dianati had never raised any performance issues with her. To the contrary, he had commenced the process of sponsoring her for a visa.
• [27] The only information that I have as to Mr Dianati's position is that contained in his Form F8A response to the Current GP Application. Mr Dianati contended that he decided to dismiss Ms Martin early in her probation period as she was "not the right fit for the business".

• [28] Mr Dianati admitted that Ms Martin "should be paid for the 5 weeks she worked". He blamed a lack of incoming revenue as the reason the payment was "delayed".
• [29] On the information available to me, I have formed the tentative conclusion that Ms Martin's case has more than a little merit. This argues in favour of a finding of exceptional circumstances.

Fairness as between Ms Martin and other persons in a like position

• [30] This consideration is concerned with the importance of the Commission applying consistent principles in cases of this kind, so as to ensure fairness as between Ms Martin and other persons in a similar position. The consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[23]
• [31] Neither party brought to my attention any relevant matter concerning this consideration. I am aware of a recent matter with a similar factual background: Gonzalo Valenzuela v Governor Group Pty Ltd.[24] In that case, I granted the applicant an extension of time to file his general protections application. It would be consistent with my decision in that case, and fair, for me to adopt a similar approach in Ms Martin's case. Consequently, this factor argues in favour of a finding of exceptional circumstances.

• [32] I have determined that the matters that I am required to take into account either weigh in favour of an extension of time or do not swing the balance either way. On that basis I am satisfied that exceptional circumstances exist warranting an extension of time.
• [33] Those considerations also lead me to conclude that it is appropriate that I exercise my discretion to allow the extension.

• [34] I order that the time for Ms Martin to make her application under section 365 for the Commission to deal with a dismissal dispute be extended to 23 May 2025.

[1] Ms Martin identified Mr Dianati as her employer. Mr Dianati filed a Form F8A on 10 June 2025. He did not dispute that he was the proper respondent in the matter.

[2] In this decision, all references to legislative provisions are to provisions of the Fair Work Act

[3] Section 383

[4] Sections 725, 727 and 729

[5] Section 366(1)

[6] I made directions on 30 June 2025 that included a direction that Mr Dianati "file with the Commission, and serve on Ms Martin, an outline of submissions, witness statements and other documentary material on which he intends to rely in respect of the Extension Application by 4.00pm on 14 July 2025"

[7] Section 366(2)

[8] Long v Keolis Downer t/a Yarra Trams [2018] FWCFB 5109 at [40]

[9] See for example Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [19]

[10] Kuncho Kurtev v KCB Australia Pty Ltd, Toni Telfer [2025] FWCFB 13 at [24]

[11] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]. In that case, the Full Bench considered the meaning of "exceptional circumstances" in the context of section 394(3), which is in relevantly analogous to section 366(2).

[12] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]

[13] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]

[14] Romic v Blacktown City Council [2020] FWC 2533 at [8], citing Wemyss v Mission Australia Employment Services [2010] FWA 1798.

[15] Halls v McCardle and Ors [2017] FCCA 316, cited in Nikhil Challa v Australia and New Zealand Banking Group Limited t/as ANZ Bank [2017] FWCFB 436 at [16]

[16] Coles Supply Chain Pty Ltd v Milford (2020) 300 IR 146; [2020] FCAFC 152 at [40]

[17] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [39]

[18] See for example, Abdul Aboud v Nickal Pty Ltd T/A Plan & Grow [2024] FWCFB 198 at [63]- [64]

[19] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300

[20] Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [38], quoted with approval in Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [21]

[21] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [71]

[22] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [72]

[23] James Morphett v Pearcedale Egg Farm [2015] FWC 8885 at [29]

[24] [2025] FWC 1522

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