s.365 - General protections

General protections application involving dismissal filed out of time - wrong application filed within time limit - new application filed late - circumstances not exceptional - application dismissed.

[1] On 2 December 2025 Mr Bradley made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth). Mr Bradley claims that he was dismissed from his employment with Gallantree Operations Pty Ltd, and that the dismissal contravened the general protection provisions.

[2] Section 366(1) of the Fair Work Act 2009 (Cth) (the FW Act) requires that general protection claims be lodged within 21 days after a dismissal takes effect. Mr Bradley's dismissal took effect on 25 October 2025 and therefore his application should have been made by no later than 11:59pm on 15 November 2025. Mr Bradley's application was therefore made 17 days late.

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

[4] For the reasons set out below I find that there are no exceptional circumstances that could allow me to make an order to grant Mr Bradley an extension of time.

[5] 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.

[6] 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(2) 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]).

[7] 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 at [13], [2011] FWAFB 975; (2011) 203 IR 1 at 5-6 described exceptional circumstances as "a situation which is out of the ordinary course, unusual, special or uncommon":

"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."

[8] Mr Bradley said he is a qualified lawyer admitted to the bar of the High Court of New Zealand who has spent the last 30 years in International Investment Banking specifically in Structured Asset Backed Finance - which he said is the most complex area of investment banking. Mr Bradley was paid more than the High Income Threshold and is unlikely to be eligible to lodge an unfair dismissal claim.

[9] Mr Bradley said that the delay was solely due to an error made while still within the 21-day time limit.

[10] On 15 November 2025, Mr Bradley filed an application under s.372 of the FW Act. 15 November 2025 was the last day that Mr Bradley could have filed his s.365 application within time.

[11] Section 372 of the FW Act is in the following terms:

Application for the FWC to deal with a non‑dismissal dispute

(a) a person alleges a contravention of this Part; and

(b) the person is not entitled to apply to the FWC under section 365 for the FWC to deal with the dispute

the person may apply to the FWC under this section for the FWC to deal with the dispute.

[12] Mr Bradley's application was comprehensive and outlined in considerable detail his gripes with Gallantree Operations. The application challenged Gallantree Operations' decision to dismiss Mr Bradley, including by reference to s.340 of the FW Act. Mr Bradley also alleged that Gallantree Operations contravened other statutes. It is not necessary or appropriate to describe in this decision the untested allegations raised by Mr Bradley about other statutory obligations.

[13] Mr Bradley said that using the Form F8C rather than the Form F8A was "a simple error with serious consequences" and that he had acted "promptly and in good faith, believing [he] had complied with the statutory timeframe."

[14] I don't readily accept this submission. It is obvious and inescapable that the Form F8C, and an application under s.372 of the FW Act, are not the correct vehicle to challenge a dismissal.

(a) The form can be downloaded from a page on the Commission's website. On that page it says "Only use Form F8C if you are a current or potential employee or worker who has not been dismissed ...";

(b) the cover page of the form is clearly titled "General protections application not involving dismissal" (emphasis added);

(c) the header on each page of the form includes the words "General protections application not involving dismissal" (emphasis added);

(d) the form includes, in the instructional notes on the first page under the heading "Who can use this form", the following instructions:

"This form is used to lodge an application with the Commission to deal with a general protections dispute not involving dismissal, under section 372 of the Fair Work Act 2009.

...

If you were an employee and your general protections dispute relates to your dismissal from employment, you should instead lodge an application using Form F8 - General protections application involving dismissal. A general protections application involving dismissal must be lodged within 21 days after the dismissal took effect." (emphasis in original)".

[16] Moreover, on 21 November 2025 Mr Bradley was sent an email acknowledgment that his application was received. The acknowledgement email said "About general protections disputes: In the meantime, you can find information on our website about the process for general protections disputes including how long the process takes."

[17] These words contained a hyperlink to the "General protections applications not involving dismissal" page on the Commission's website, which includes the following information:

"If you're thinking about making a general protections application that does not involve dismissal, here are the things you should know.

IMPORTANT

Our role in general protections cases that don't involve dismissal is limited to dispute resolution.

...

To apply you must:

be an employee, prospective employee or independent contractor

have experienced adverse action (other than dismissal), and

believe the adverse action was taken for a prohibited reason.

In a dispute not about dismissal, you can apply up to 6 years after the adverse action happened.

...

How to apply

General protections application not involving dismissal (Form F8C) - use this form if you have:

experienced adverse action (that was not dismissal) within the last 6 years, and

believe the adverse action was taken for a prohibited reason."

[Emphasis added]

[18] Gallantree Operations declined to participate in a conference (see s.374) and Mr Bradley was advised on 1 December 2025 that his application would be closed. Mr Bradley filed his application under s.365 the next day.

[19] Mr Bradley said "as soon as I became aware [that the matter was lodged in the wrong jurisdiction], I have taken immediate steps to lodge the correct Form F8 application." Mr Bradley did not say when he first became aware that he had lodged the wrong type of application.

[20] In deciding whether there are exceptional circumstances, the Commission must take into account each of the factors listed in s.366(2).

[21] The reason(s) for the delay must be taken into account (per s.366(2)(a)).

[22] If an applicant does not have a credible explanation the Commission is unlikely to find that there are exceptional circumstances - at least exceptional circumstances that support an extension of time. The reason for delay is only one of several factors to be considered and 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).

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

[24] 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 their delay are not granted an extension of time because they cannot firstly establish that there are exceptional circumstances.

[25] This application is a prime example of the importance of the 'high hurdle' set by the statute, being that there must be exceptional circumstances. But for the exceptional circumstance requirement I would be inclined to allow the extension of time sought: the s.372 application was comprehensive and clearly referred to an alleged contravention of s.340 of the FW Act, there is no prejudice to Gallantree Operations, the application is not so hopeless that the extension should be withheld.

[26] However, an applicant making such a fundamental mistake in the lodgement process is not exceptional circumstances - at least not exceptional circumstances that would positively support an extension of time.

[27] By comparison, it is well established that an applicant missing the 21-day deadline because of an administrative or computer problem, even an applicant missing the deadline by mere minutes or seconds, are not exceptional circumstances. Similarly, ignorance of the timeframe for lodgement is not an exceptional circumstance.

[28] Gallantree Operations relied on decisions of the Commission that applied the same reasoning in similar but slightly difference circumstances (see Dowonya-Sylwestrowicz v Orchard Marketing Pty Ltd [2025] FWC 2163, Karagiannis v Muvehire Pty Ltd [2024] FWC 2615 and George v Jungheinrich Australia Pty Ltd [2022] FWC 2119).

[29] In taking into account all of the above, Mr Bradley's explanation for the delay does not point towards the existence of exceptional circumstances.

[30] In my view the remaining matters are neutral considerations. Firstly, Mr Bradley did take action to challenge the dismissal prior to making his application but not action in exceptional circumstances (s.366(2)(a)). Secondly, there is no evidence of prejudice to the employer (s.366(2)(c)). Thirdly, the general protections application is not strong, but it is not without merit (s.366(2)(d) and finally, I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Bradley and other persons (s 366(2)(e)).

[31] 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.

[32] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time to make Mr Bradley's application. I make the following order:

1. The general protections application made by Mr Bradley on 2 December 2025 is dismissed.

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