s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances - application dismissed.

• [1] Mr Chad Edwards has applied to the Fair Work Commission (the Commission) to deal with a general protections dismissal dispute under s.365 of the Fair Work Act 2009 (Cth) (the Act). The respondent to the application is his former employer Playside Studios Limited (Playside).

• [2] Section 366(1) of the Act provides that a general protections dismissal application must be made within 21 days after the dismissal took effect or such further period as the Commission allows under s 366(2).

• [3] Mr Edwards was employed by Playside from 22 April 2024 to 23 September 2024. Mr Edwards was dismissed by Playside effective 23 September 2024.

• [4] In Mr Edwards' matter, the 21-day period in s 366(1)(a), expired on 14 October 2024. Mr Edwards lodged his general protections application on 13 June 2025, which is about 242 days outside the 21-day period.

• [5] Therefore, it is necessary for the Commission to determine whether it allows Mr Edwards a further period under s 366(2) to make his general protections application.

• [6] Section 366(2) provides that the Commission may allow a further period if the Commission is satisfied that there are exceptional circumstances taking into account the following matters:

(a) the reason for the delay;

(b) any action taken by the person to dispute the dismissal;

(c) prejudice to the employer (including prejudice caused by the delay);

(d) the merits of the application;

(e) fairness as between the person and other persons in a like position.

• [7] A decision to extend time under s 366(2) involves the exercise of a discretion. The Commission must first be satisfied that there are "exceptional circumstances" before a discretion to extend time is enlivened.

1. The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension.[1] In Nulty v Blue Star Group Pty Ltd[2] a Full Bench of Fair Work Australia said as follows:

'[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.

• [9] In deciding whether there are exceptional circumstances the Commission must take into account the matters specified in s.366(2)(a)-(e). Albeit no one matter may be exceptional, in combination, the circumstances may be such that they can reasonably to be regarded as exceptional. Consequently, it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances.

• [10] None of the five matters specified in s 366(2)(a)-(e) including explanation for delay constitutes a condition precedent to the Commission being satisfied of exceptional circumstances. Furthermore, it is not a pre-condition to the grant of an extension of time for an applicant to provide a credible explanation for the entire period of the delay. However, the absence of an explanation for any part of the delay, will usually weigh against an assessment of exceptional circumstances. Conversely, a credible explanation for the entirely of the delay, will usually weigh in favour of an assessment of exceptional circumstances.

The reasons for the delay (s 366(2)(a))

• [11] Mr Edwards submitted that the reason for the delay was Playside's sustained conduct designed to inhibit his access to justice, and the resulting psychological impact on him. In his submission, Mr Edwards has set out the alleged elements of Playside's sustained conduct, which he observes "took place primarily before the termination" and started as early as 23 July 2024. Mr Edwards states that Playside's conduct had a significant impact on him in the nature of trauma, impaired trust and reduced capacity to trust, which sustains a conclusion of exceptional circumstances. Mr Edwards submits that the effects of Playside's conduct on him have been enduring and significant and that he experienced and continues to experience psychological and functional impairments that stemmed from this period of treatment. Mr Edwards submits that the conduct of the employer created practical barriers to his capacity to file his application within time.

• [12] In that regard, Mr Edwards relies on a report dated 8 July 2025 of Ms Courtney Gardiner, an Accredited Mental Health Social Worker. Ms Edwards describes Ms Gardiner as his therapist. Ms Gardiner's report indicates that it is outside the scope of her professional capacity to diagnose post-traumatic stress disorder or to assess whether a person has experienced a post traumatic response. However, Ms Gardiner indicates that she can speak to trauma responses and what constitutes a traumatic event which might trigger a trauma response. Ms Gardiner opines that Mr Edwards experienced a trauma response to receiving information about allegations made by Playside. Ms Gardiner refers to Mr Edwards' ADHD diagnosis and notes that ADHD comprises difficulties with executive functioning, which, when paired with a trauma response, can explain difficulty in completing every day and achievable tasks. Ms Gardiner opines that Mr Edwards' delay in making his application can be explained by his history, his treatment by Playside and his trauma response to the allegations made against him. Ms Gardner indicates that Mr Edwards was administered the Depression, Anxiety and Stress Scale (DASS-21) on 5 December 2024 and that that the outcomes indicated that the total level of distress was within the "normal range", with the subscales of anxiety and stress within the normal range and the subscale of depression in the mild range. Ms Gardner indicates that Mr Edwards was administered the DASS-21 on 6 July 2025 and the total level of distress was within the "mild" range, which she describes as clinically significant, with the subscale of stress within the "normal" range and the subscales of depression and anxiety in the "moderate" range.

• [13] In Bianca Mamo v ICELED Australia Pty Limited,3 Deputy President Easton reviewed a number of authorities relating to whether an applicant's mental health may constitute an acceptable explanation for delay when considering exceptional circumstances and summarised the principles in the following terms:

[25] In summary the following principles apply:

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

(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant's capacity to lodge the application within the statutory time limit (per Roberts and Underwood);

(iii) the evidence should positively demonstrate that the applicant'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 (per Underwood and Merhi); and

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

• [14] I am not satisfied that Mr Edward's mental health, psychological state or any trauma response provides an acceptable reason for the whole delay or significant periods of the delay. In that regard, Ms Gardiner's report does not satisfy me that Mr Edwards' mental health or psychological state was such that he was prevented from lodging the application within 21 days. Furthermore, the 5 December 2024 DASS score indicates that Mr Edwards' total level of distress was in the mild range. This is not consistent with Mr Edwards mental health or psychological state being such that he was unable to lodge an application as at 5 December 2024. Furthermore, Ms Gardiner specifically states that it is beyond her professional capacity to diagnose a post traumatic stress response or whether a person is in a post-traumatic response.

• [15] In these circumstances, I am not satisfied that Mr Edwards has established an acceptable explanation for delay based on his psychological or mental state. I am not satisfied that Ms Gardiner's view that "the delay can be explained by [Mr Edewards] history, his treatment by the company and his trauma response to the allegations presented to him.", provides an acceptable explanation for the delay.

• [16] My lack of satisfaction that Mr Edwards' psychological or mental state or indeed any trauma response provides an acceptable explanation for the delay, is fortified by consideration of various steps Mr Edwards undertook in February 2025, March 2025, April 2025 and May 2025 relating to his employment and also his dismissal.

• [17] On 14 February 2025, Mr Edwards emailed Playside making a request under the Privacy Act 1988 (Cth) (Privacy Act) for records held by Playside relating to his personal health information as he had an upcoming medical appointment. Mr Edwards' request was specifically directed to identified information contained in logs of two private Slack channels that Mr Edwards used during his employment at Playside. On 19 February 2024, Playside emailed Mr Edwards a response and informed Mr Edwards that Playside did not have access to his Slack channels as his account was deactivated. On 19 February 2024, Mr Edwards responded to Playside's email, requesting a copy of Playside's retention policy, requesting that it facilitate access to the Slack channels by administrative means, reaffirming his belief that was entitled to access under the Privacy Act and seeking preservation of the records while the matter was being resolved. On 5 March 2025, Mr Edwards emailed Playside, renewing his request for access to his personal information in private Slack channels and his request for a copy of the data retention policy. On 6 March 2025, Playside sent Mr Edwards an email to which it attached a copy of its data retention policy and in which it reaffirmed that it did not have access to the requested information. A few hours later on 6 March 2025, Mr Edwards sent Playside a further email indicating that he had reviewed the data retention policy and seeking review of his request for personal information by Playside's Data Protection Officer. Mr Edwards' email also made reference to a number of technical pathways for Playside to obtain access to his health information on the Slack Channel. On 28 & 31 March 2025, Mr Edwards sent further emails to Playside renewing his request for access to his personal health information on Slack channels and seeking direct communication with Playside's data protection officer. It is evident from these communications that in February and March 2025 Mr Edwards was able to make sophisticated representations to Playside in respect of matters relating to his employment.

• [18] Furthermore, by letter dated 23 April 2025, Mr Edwards made a detailed formal complaint to Playside alleging serious psychosocial hazards including matters which Mr Edwards alleged were connected with his dismissal. Mr Edwards sought remedial actions by Playside including a formal investigation into the handling of his dismissal and remediation of the harm including consideration of the financial and psychological harm. On about 13 May 2025, Mr Edwards submitted a report to WorkSafe Victoria reporting alleged psychosocial hazards including allegations relating to the termination meeting on 20 September 2024.

• [19] Consequently, it is apparent from the matters set out above that in significant periods from mid- February 2025, Mr Edwards demonstrated capacity to take steps involving raising in some detail, issues related to his employment or the dismissal, both directly with Playside and also with an external regulatory body.

• [20] In his submission, Mr Edwards states that his trauma response impaired his ability to obtain legal support in respect of the dismissal. In that regard, he relies on Ms Gardiner's report. Ms Gardiner's report refers to certain matters which she says affected Mr Edwards trust in the legal profession. I do not consider that any lack of trust Mr Edwards has in the legal profession, including in the circumstances identified by Ms Gardiner, provides an acceptable explanation for the delay.

• [21] In his application form (Form F8), the applicant also stated that he misunderstood the 21-day time limit as applying only to the Commission conciliation process and that he believed that he could still bring a general protections applications claim in the Federal Court. The applicant also said that he did not realise that the Commission process was a mandatory first step and that this misconception led to critical delay. It is well established that ignorance of the law does not provide an acceptable explanation for the delay.

• [22] In a supplementary written submission, the applicant submits that the respondent did not provide him payslips in response to his requests for his personnel file made after the dismissal and its failure to dos, combined with other matters, materially impaired his ability to act and contributed to paralysis and delay in filing in his application. I am not satisfied that this matter provides an acceptable explanation for delay or gives rise to exceptional circumstances.

• [23] In the supplementary submission, the applicant submits that the respondent relies on probation notes and performance letters as if they were neutral and reliable whereas the applicant alleges they are selective, misleading, incomplete and otherwise unreliable. The applicant says that documents of this nature created mistrust and trauma related impairments which affected his capacity to take timely action within the 21-day period. I am not satisfied that this matter provides an acceptable explanation for delay or gives rise to exceptional circumstances.

• [24] My lack of satisfaction that Mr Edwards has an acceptable reason for delay weighs against Mr Edwards.

Action taken by applicant to dispute the dismissal (s 366(2)(b))

• [25] Mr Edwards did take action to dispute the dismissal prior to filing the application. In that regard, Mr Edwards stated that he disputed his dismissal at the dismissal meeting and I accept that he did so.

• [26] I am also prepared to consider Mr Edwards' requests for information to Playside in February and March 2025 as being steps taken to dispute the dismissal.

• [27] Furthermore, Mr Edwards' communications in April and May 2025 to both Playside and WorkSafe constitutes action taken him to dispute the dismissal.

• [28] Consequently, the action taken by the applicant to dispute the dismissal weighs in favour of Mr Edwards.

Prejudice to the employer (including prejudice caused by the delay) (s 366(2)(c))

• [29] Mr Edwards' application is about 242 days out of time. The respondent submitted prejudice from the length of the delay as it asserts that key staff have moved roles and records have been harder to verify with time. However, no specific prejudice is elaborated. The applicant in supplementary written submission submitted that the respondent had not demonstrated any genuine prejudice as a generalised assertion of movement of staff roles or loss of records was not sufficient to identify prejudice.

• [30] As the respondent has not elaborated any specific prejudice, I regard this matter of prejudice as a neutral consideration.

• [31] Mr Edwards says that he exercised workplace rights including making complaints in relation to his employment and raising concerns relating to his employment. Mr Edwards asserts that Playside's response gives rise to an inference of an improper motive that he was dismissed for the exercise of those workplace rights.

• [32] Playside submit that Mr Edwards was dismissed during a probation period for reasons related to his team fit, collaboration and conduct. Playside deny that Mr Edwards was dismissed for a reason connected to his exercise of a workplace right.

• [33] I am prepared to accept that Mr Edwards exercised a workplace right. In a temporal sense, Mr Edwards was dismissed after exercising such a right. Mr Edwards is also entitled to a reverse onus. However, there are clearly significant factual disputes between the parties, particularly whether Mr Edwards' exercise of a workplace right was a reason for the dismissal. Such a significant factual dispute cannot be resolved at the stage of an extension of time hearing.

• [34] In the circumstances, given the significant factual dispute as to the reason for the dismissal, I consider the merits of Mr Edwards' application as a neutral matter.

Fairness as Between the Applicant other persons in a like position (s 366(2)(e))

• [35] In relation to fairness as between the person and other persons in a like position, in Morphett v Pearcedale Egg Farm,[3] Deputy President Gostencnik observed as follows:

[29] Turning to the question of fairness as between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.

• [36] In respect of this consideration, Mr Edwards submitted that the statutory time limit is important but not absolute, that denying the extension would reward obstructive conduct and unreasonably disadvantage a party acting in good faith.

• [37] Mr Edwards' submissions in respect of this matter are not relevant to this consideration.

• [38] I am not aware of any matter before me which is relevant in respect of this consideration. Consequently, I regard this consideration as neutral.

• [39] Having regard to the matters in s 366(2), I am not satisfied that there are exceptional circumstances in this case, either when the various matters are considered individually or together. I am not satisfied that the applicant has an acceptable explanation for the delay (s366(2)(a)), which weighs against an extension. The consideration in s 366(2)(b), weigh in favour of the applicant. The considerations in s 366(2)(c), (d) and (e) are neutral.

• [40] As I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time. Mr Edwards application under s 365 of the Act is dismissed.

1. [1] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
2. [2] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] [2015] FWC 8885 at [29].

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