Bo Rong Wang [2026] FWC 348 (4 March 2026)

s.365 - General protections

Application to deal with contraventions involving dismissal - extension of time - application dismissed.

[1] Ms Bo Rong Wang (Applicant) has made an application under s.365 of the Fair Work Act 2009 (Act) in which she alleges that she was dismissed in contravention of Part 3-1 of the Act. S.366(1)(a) of the Act requires such applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s.366(1)(b). The Applicant said that the dismissal occurred on 20 August 2025. The 21-day period therefore ended on 10 September 2025. The application was lodged on 12 January 2026, 124 days out of time. In order for the application to proceed, the Applicant requires an extension of time. The Commission may only extend time of it is satisfied that there are 'exceptional circumstances', taking into account the matters in s.366(2)(a)-(f).

[2] As to the reason for delay (s 366(2)(a)), the Applicant said that she commenced proceedings under an unfair dismissal application, believing this was the correct application. After a conciliation, she submits that she became aware that the dismissal more properly fell under the general protections provisions of the Act. She inquired with the Commission about transferring the application and during this period was dealing with her mother who was diagnosed with cancer. The Applicant has not provided a reasonable explanation for the delay in filing her claim of contraventions involving the General Protections provisions of the Act. The Applicant could have lodged her application within time. The reason for the delay weighs against an extension of time.

[3] As to the matters in ss.366(2)(b), (c) and (e), I note the following, the Applicant took action to dispute her dismissal by filing her application for an unfair dismissal remedy. This weighs somewhat in favour of an extension. There is no prejudice to the employer (s.366(2)(c)). I consider this to be a neutral factor. In my view, there are no matters that are relevant to the question of fairness between the Applicant and other people in a similar position (s.366(2)(e)).

[4] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested, but the merits are nonetheless a factor that I am required to take into account in assessing whether there are exceptional circumstances.

[5] The Applicant submitted that she was dismissed shortly after exercising her workplace rights, which included requesting leave related to her mother's recent diagnosis of cancer. The Applicant submits that those reasons were relied upon to justify her dismissal, thus providing a temporal connection.

[6] The Respondent submits that the Applicant was dismissed for misconduct and that in any case her application contravenes s.725 of the Act. The Respondent relies on the Applicant's disclosure in her Form F2 that she lodged a complaint with the Australia Human Rights Commission (AHRC). Without reviewing the complaint filed in the AHRC, I cannot make a finding as to whether s.725 has been contravened.

[7] The merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.

[8] I do not consider the merits of the present case to tell for or against an extension of time. I consider this to be a neutral consideration.

[9] The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking into account the matters in s.366(2) of the Act, I am not satisfied that there are exceptional circumstances in this case. Consequently, there is no basis for the Commission to extend time.

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