Fair Work Commission|2025-11-04

Charles Thomson v Embassy Hotel [2025] FWC 3313 (4 November 2025)

s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - out of time - Applicant filed all material except application form in initial lodgement - sufficient that he 'filed' the application in time - alternative - time extended - Applicant took steps to file the application within time.

[1] On 1 September 2025, Mr Charles Thomson (Mr Thomson / 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, however in doing so did not submit the application itself. The Respondent in the matter was named as Embassy Hotel (the Respondent). The Respondent submitted its legal name was The Trustee for Conias Hotel Trust trading as Embassy Hotel.

[2] The Respondent raised a jurisdictional objection that the application was out of time as the Form F8 application was not filed until 11 September 2025, two days outside the 21-day time limit.

[3] On 9 October 2025, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objection. The parties proposed the matter be determined on the papers.

[4] Ms Melissa Butters, Employment Relations Manager, Queensland Hotels Association assisted the Respondent in preparing its material and Ms Sienna Mcinnes-Smith, a Solicitor at Legal Aid Queensland assisted the Applicant.

[5] The Applicant provided two witness statements dated 22 October 2025 and 3 November 2025 on his own behalf. Mr Jamie Larsen, General Manager provided a witness statement dated 15 October 2025, and Melissa Butters Employment Relations Manager, Queensland Hotels Association provided a witness statement dated 30 October 2025 for the Respondent.

[6] The Applicant was employed on a casual basis by the Respondent from 30 May 2025 until 19 August 2025.

[7] On 19 August 2025, the Applicant was dismissed from his employment by the Respondent.

[8] On 1 September 2025 at 11:20:38am, the Applicant's evidence was he downloaded the Form F8 general protections-dismissal application form from the Commission's website in a Microsoft Word file format. At 3:50:54pm on the same day, the Applicant said he saved the completed Form in the Microsoft Word file format.

[9] On 1 September 2025 at 4:26pm, the Applicant sent an email to the Commission at lodge@fwc.gov.au attaching a ZIP file entitled 'F8_Application.zip'. The Applicant had zipped his supporting documents into the ZIP file but accidentally omitted the completed Form F8. The documents contained in the ZIP file included:

(d) Termination_Meeting_Recording_Transcript.pdf; and

[10] The covering email containing the ZIP file relevantly stated "[p]lease find attached my application for a general protections infringement in relation to dismissal... Could you please advise if anything is missing or has been incorrectly filed ...".

[11] On 1 September 2025 at 4:34pm, the Applicant received an email from the Commission at CSPClientServices@fwc.gov.au stating that "We cannot access your email or attachments" and "we have not received the files".

[12] On 1 September 2025 at 6:05pm, the Applicant sent an email to the Commission at CSPClientServices@fwc.gov.au attaching the files individually but accidentally again omitting his completed Form F8.

[13] On 11 September 2025 at 9:33am, the Commission emailed the Applicant relevantly stating that "[t]he Fair Work Commission received the attached email from you on 1 September. There was not a completed application form attached to your email".

[14] On 11 September 2025 at 11:08:59am the Applicant's evidence was he saved the Form in a pdf file format. On the same day at 11:10am, the Applicant replied to the Commission at CSPClientServices@fwc.gov.au attaching his completed Form F8.

[15] On 16 September 2025 at 1:47pm, the Commission sent an email to the Applicant acknowledging receipt of his application.

[16] The Applicant noted that s.585 of the Act provides that an application to the Commission must be in accordance with the procedural rules (if any) relating to applications of that kind. Section 586 provides that the Commission may allow a correction or amendment of any application on any terms it considers appropriate, or to waive an irregularity in the form or manner in which an application is made to the Commission.

[17] The Respondent submitted the use of the term 'must' in s.585 imposes a mandatory obligation upon an applicant to comply with the Fair Work Commission Rules in the making of an application. Accordingly, the Commission may only commence dealing with a matter after a duly completed application on an approved form has been received. It is generally accepted that non-compliance with s.585 does not automatically invalidate an application by virtue of the discretion afforded by s.586 of the Act. The Applicant cannot rely on this discretion where no valid application existed within the required timeframe.

[18] Rule 7 of the Fair Work Commission Rules 2024 (the Rules) provides a discretion to the Commission to dispense with compliance with the Rules and rule 9 provides that where there is an approved form, the approved form must be used, although it is sufficient compliance if a document is substantially in accordance with the approved form.

[19] It is not disputed that the Applicant's period to make a general protections - dismissal application ended at 11:59pm AEST on 9 September 2025.

[20] However, the Applicant submitted that the material provided on 1 September 2025 either at 4:26pm or 6:05pm constituted an application for the purposes of s.366 and that his application was therefore made within time.

[21] The Respondent submitted the application was not "made" until 11 September 2025 because acknowledgement under Rule 16 had not been issued prior to that date.

[22] The Respondent submitted it appeared the Applicant's primary argument is that he lodged his application (a "completed Form F8") on 1 September 2025, however, inadvertently or accidently omitted to attach the Form F8 on either of the two occasions he attempted to file material on that date. While the Applicant did file certain material with the Commission on 1 September 2025, being three documents authored by the Applicant and one document created by the Respondent, none of those documents comprised, or purported to comprise, the Form F8 application. The documents authored by the Applicant (the documents titled "Termination Process - The timeline of events", "Supporting Emails" and "Termination Meeting Transcript"), each record Mr Charles Thomson as the author. The document properties show all three were created on 1 September 2025 between 4.18pm and 4.22pm. It follows the Applicant did not have a "completed Form F8" on 1 September 2025 when he submitted his other material. Consequently, the Form F8 was created and lodged two days outside the statutory timeframe for commencing an application under s.366(1)(a) of the Act.

[23] The Applicant referred to the case of Thapaliya v The Arnhem Land Progress Aboriginal Corporation[1] the Full Bench of the Commission observed that "it is well established that an incomplete application can be an application within the meaning of the Fair Work Act"[2] when referring to the two Full Bench decisions of Arch v Insurance Australia Group Services[3] and Hedger v Trustee for Perrott Trust trading as Perrott Engineering.[4] The Full Bench in the latter case summarises of the current state of the law as follows:[5]

"[52] ... In a case requiring the Commission to determine whether an application has been "made" under s. 365 or s. 394, it is necessary to look at the substance of what the person attempting to make the application did. The question is whether the steps taken, and the material lodged by a person attempting to make an application are sufficient to be considered in substance, an application for the purposes of s. 365 or s. 394. The form in which material is provided to the Commission is relevant, but not determinative of whether in substance, an application has been made. Where material is lodged by email or the Commission's online lodgement facility, the time at which an application is made is the time when material sufficient to constitute an application in substance, is received by the Commission. Material relevant to whether an application has been "made" in substance, is not limited to information set out in a Form which the Commission's rules require an application to be made in. Documentary information including a letter advising of the termination of an applicant's employment, payslips or the contents of a covering email to which documents are attached, may be capable of being accepted as an application in substance, so that the application will be made at the time that material is lodged.

[53] A defective application - including an application with potentially fatal defects - is still capable of being "made". Defects may be cured by the Commission exercising discretion under s. 586 to amend the application or to waive an irregularity in the form or manner in which the application is made. Section 586 of the FW Act operates to direct the Commission to look at the substance of an application, not the form that is used to make it or the manner in which it is made. The question of whether an application is fatally flawed or can be cured by use of the discretion in s. 586 of the FW Act is not determinative in circumstances where an application in substance, is made within the time required by s. 366 or s. 394. In such cases the question of whether the defect can be cured by the exercise of discretion in s. 586 is decided separately and where the defect is fatal the application may be dismissed under s. 587 on application or the Commission's own initiative. This should not be taken as us stating conclusively that an objectively fatal defect - for example where on the facts pleaded by an applicant the application cannot succeed - will not be relevant to the consideration of merit as provided in s. 366(2)(d) or s. 394(3)(e) for the purposes of whether a further period should be granted."

[24] Further, the Applicant referred to the Full Bench in Hambridge v Spotless Facilities Services Pty Ltd,[6] observed that, "[t]he Commission is required by s.577(b) [of the Act] to perform its functions and exercise its powers in a manner that is 'quick, informal and avoids unnecessary technicalities'".

[25] The Applicant noted that similarly, the Commission in Brunskill v Federation of Children Nth Geelong Pty Ltd observed that the Commission is not bound by the rules of evidence and procedure.[7]

[26] The Applicant submitted that the covering email sent by the Applicant to the Commission at 4:26pm on 1 September 2025 gave the purpose of the email as being an "application for a general protections infringement in relation to dismissal" and it listed as the first attachment as "Completed F8 Form". Additionally, the 'TerminationProcess.pdf' document attached to both of the Applicant's emails to the Commission sent on 1 September 2025 contains the name of the Respondent, the details of the Applicant's employment and the substantive allegations the subject of these proceedings, including allegations of 'coercion' and 'adverse action' after the 'exercise of a workplace right'.

[27] The Applicant submitted in circumstances where:

(a) the kind of application the Applicant was intending to make was clearly evident from the material provided to the Commission on 1 September 2025;

(b) that material provided nearly all the information that the Form F8 itself is intended to elicit;

(c) the completed Form F8 provided to the Commission by the Applicant on 11 September 2025 does not contain any additional allegations to those contained in the 'TerminationProcess.pdf' document. Indeed, the completed Form F8 refers to the 'TerminationProcess.pdf' document as containing the alleged contraventions of the Act and does not repeat them. The only new information provided in the completed Form F8 are the specific remedies sought by the Applicant;

(d) the substance of the application was therefore clearly evident from the emails on 1 September 2025; and

(e) the failure to include the completed Form F8 is not automatically fatal but is indeed contemplated by ss.585 and 586 of the Act and rules 7 and 9 of the Rules.

[28] the Applicant submitted that the Commission should therefore find that his application was made on 1 September 2025, within the 21-day time period after the dismissal took effect on 19 August 2025, and no additional time needs to be allowed.

[29] The Respondent argued the case authorities relied upon by the Applicant each concern circumstances where an applicant had lodged an incomplete, blank, or incorrect application form for the basis of the dispute. Those authorities are clearly distinguishable from the present matter, because the Applicant failed to lodge any application form, whether complete, incomplete, or otherwise. Critically, the Applicant's "Termination Process" document does not contain any provision for the payment of the prescribed application fee. This omission demonstrates the document could not have been accepted or processed by the Commission as a valid application.

[30] The Respondent continued that in contrast, the Form F8 completed and filed by the Applicant on 11 September 2025 includes a section requiring the Applicant to indicate the method of payment for the application fee. The Applicant selected the option to pay by credit card. Immediately below this selection, the form states (in bold text):

"If paying by credit card, please provide the payer's details below and a Commission officer will contact the payer within 3 business days from the date of lodgment."

[31] The Respondent said the Applicant did not engage with this requirement in his material. The Respondent noted, however, if the Applicant genuinely believed he had lodged the application in time, on 1 September 2025, he would have reasonably expected to be contacted by the Commission within three business days to arrange payment of the fee. The absence of such communication should have prompted the Applicant to make enquiries with the Commission. His failure to do so further undermines the credibility of his claim that he believed a valid application had been lodged on that date.

[32] The Respondent referred to the case of Robertson v Zeugma Electrical & Communication Services Pty Ltd,[8] where Deputy President McCarthy considered the (then) statutory timeframe for lodging an unfair dismissal application and relevantly observed:

"The provisions of s. 394(4) of the FW make it mandatory to lodge matters of this type within 14 days. That obligation is not absolute and may be altered if exceptional circumstances exist. The FW Act does not provide for an application to be allowed if there has been inadvertence or accident by the Applicant. If it had been intended that inadvertence or accident to allow applications to be made beyond the 14 days provided, then the legislation would have reflected that intention. Those issues, i.e. accident and inadvertence, are matters that may influence whether exceptional circumstances exist but without more than is provided here it is unlikely it would constitute anything exceptional."

[33] The Respondent said prior to 16 September 2025, the Commission did not issue a lodgement receipt or any correspondence suggesting that an "application" has been received, was incomplete and required further information, or was under consideration. The Commission did not, correctly in the Respondent's submission, treat the Applicant's earlier emails as an "application".

[34] The Respondent concluded that this is not a case in which it would be unconscionable or unjust for the Commission to proceed on the basis the application was made two days outside the statutory timeframe. The Applicant's delay was a product of his own inadvertence, not of any act or omission by the Commission.

[35] The Applicant was dismissed effective on 19 August 2025, and the completed Form F8 was provided to the Commission on 11 September 2025 at 11:10am. On this metric, the application was approximately 33 hours outside the 21-day time period allowed by s.366 of the Act.

[36] In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under section 366(2) of the Act. This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

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

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

[37] In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when 'exceptional circumstances' are established, there remains discretion to grant or refuse an extension of time.[9] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

[38] The Act does not define 'exceptional circumstances' per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[10] 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 can be considered exceptional.[11]

[39] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:

"As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional"[12]

[40] The Applicant submitted he sought to lodge his application twice on 1 September 2025. Indeed, in his first attempt at lodgement, the Applicant asked the Commission to "advise if anything is missing or has been incorrectly filed".

[41] The Applicant contended the Commission promptly replied to the Applicant's first attempt at lodgement 8 minutes later, asking him to resend the documents. The Applicant then did so and did not receive any further communication from the Fair Work Commission until 11 September 2025, after the 21-day time period had passed. It was this correspondence from the Commission that alerted the Applicant for the first time that he had failed to include the completed Form F8 in his 1 September 2025 emails. Without any criticism of Commission's staff, the Applicant's second email was not dealt with for 10 days. Had it been dealt with more promptly - as his first email was - the Applicant could have been alerted to the issue and had an opportunity to address it within the 21-day time period. Further, once alerted to the deficiency in his application, the Applicant acted promptly within approximately 90 minutes to address the issue.

[42] The Respondent submitted the Applicant has put forward no explanation for his delay in filing his application. It is reasonable to infer from the fact that the Applicant filed a general protections involving dismissal application that the Applicant understood his options. The failure to provide a satisfactory - or any - explanation for the delay in finding weighs against the Commission exercising its discretion to allow the further period for the Applicant to make his application.

[43] The Applicant acknowledged he had not taken any steps to dispute his dismissal after it took effect, beyond lodging the application, which he attempted to do within a fortnight of his dismissal.

[44] The Respondent accepted that the Applicant took steps to dispute a dismissal by filing his application. However, noted as was found by Deputy President Clancy in Torcello v Department of Education,[13] the action taken must be action taken to contest the dismissal that is action other than lodging the relevant application.

[45] The Respondent submitted that prejudice arises by virtue of the fact that the application was made outside of statutory timeframes. The Respondent submitted that once a limitation period has been set by law, to allow the commencement of an action outside that period is prima facie prejudicial to a responding party who would otherwise have the benefit of that limitation. Had the application been made within timeframes, it would not have been necessary for the Commission to have set directions and hear the extension request, and the Respondent would have been spared the effort and resources required to advance its jurisdictional objection.

[46] The Applicant submitted the Respondent has failed to demonstrate any evidence of actual prejudice to its ability to defend the Application from the short delay period of 33 hours.

[47] In Telstra-Network Technology Group v Kornicki,[14] the Full Bench of the Australian Industrial Relations Commission said, in respect to the merits of an application:

"If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

[48] Evidence on the merits is rarely called at an extension of time hearing and was not called in this case. The Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.'[15] The merits of the application more generally would need to be scrutinised and would include consideration of the circumstances of the dismissal. If an extension of time were granted and the matter proceeded this would need to be examined.

[49] The application contended that the Respondent took adverse action (an injury or alteration to the Applicant's employment to his detriment by removing all of his shifts, and later, a dismissal) against the Applicant for exercising his workplace rights (by declining to work a shift, and making an inquiry in relation to his employment - as to whether working the shift on 19 August 2025 was a requirement for his continued employment). The application also makes allegations of coercion.

[50] The Respondent alleged the Applicant had only made the general protections application as he was not eligible to make an unfair dismissal application due to not meeting the minimum employment period.

[51] In relation to the Respondent's submissions, the Applicant submitted that he has not characterised his dismissal as unfair in any of the material filed to date - nor has he sought to import unfair dismissal considerations under the Act. The Applicant said on the evidence currently before it, and the Respondent's failure to meaningfully respond to some of the allegations, the Applicant submitted that he has an arguable case, and this factor should be weighed in his favour.

Fairness between the person and other persons in a similar position

[52] The Applicant referred to Brunskill v Federation of Children Nth Geelong Pty Ltd,[16] the Commission observed that this factor concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. The Applicant noted in that case, as well as Hames v IWM (PNH) Pty Ltd[17] and Arch v Insurance Australia Group Services,[18] the Commission has granted extensions of time following the submission of blank and incomplete forms.

[53] In relation to the Applicant's primary position that the application was filed within time, the question is whether the steps taken, and the material lodged by the Applicant were sufficient to be considered in substance, an application for the purposes of s.365.

[54] I accept the steps taken and material lodged on 1 September 2025 was sufficient to be considered in substance an application for the purposes of s.365. As was stated by the Full Bench decision in Hedger v Trustee for Perrott Trust trading as Perrott Engineering[19]:

"...Documentary information including a letter advising of the termination of an applicant's employment, payslips or the contents of a covering email to which documents are attached, may be capable of being accepted as an application in substance, so that the application will be made at the time that material is lodged."

[55] The Respondent argued this case is distinguishable because no actual application form of any kind was filed, and further that the Applicant had not addressed the issue of a filing fee. The Respondent also submitted that the Commission did not issue a lodgement receipt or any correspondence suggesting that an "application" has been received, was incomplete and required further information, or was under consideration.

[56] I have concluded none of these matters alter that fact that, in substance an application had been "made" on 1 September 2025, and none of these matters are a bar to reaching that conclusion. On that basis, the jurisdictional objection is dismissed as the application is within time. The matter will be programmed for conference.

[57] However, for completeness, even if the conclusion that the application was "made" on 1 September 2025 is wrong, in relation to the Applicant's case in the alternative, considering all of the matters I am required to take into account in s.366 of the Act, I would extend time. I am satisfied that there are exceptional circumstances justifying a further period of two days to allow the Applicant to file the application if it was not made until 11 September 2025.

[58] The Applicant sought to lodge his application twice on 1 September 2025, well within time. I am satisfied that the way events unfolded on 1 September 2025 falls within the meaning of exceptional, in that the Applicant had put considerable effort into preparing several documents to support his application, and not once, but twice inadvertently filed in the Commission all of the other documents well within time excepting the form itself, and explained in his email that he was making a general protections application.

It is apparent the Applicant had done more than simply completed the form itself. He had taken further steps in support of his application by preparing other documentation to support of his claim. He was clearly intent on contesting his dismissal. There would be is no prejudice to the Respondent in extending time by two days, and the merits are a neutral consideration.

[6] [2017] FWCFB 2811, [26], cited in Arch v Insurance Australia Group Services [2020] FWCFB 601, [31].

[15] Kyvelos v Champion Socks Pty Ltd, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

Printed by authority of the Commonwealth Government Printer

Work Commission Rules 2024

Charles Thomson v Embassy Hotel [2025] FWC 3313

At a glance

Court

Decision date

Source

Judgment (96 paragraphs)

Charles Thomson v Embassy Hotel [2025] FWC 3313 (4 November 2025)

Parties

Legislation Cited (2)

Cases Cited (3)