//
[86]
[2026] FWC 120
General information, not legal advice.
Fair Work Commission
2026-01-14
Original judgment source is linked above.
s.365 - General protections
Australian Dental Association Victorian Branch Inc Trading AS Australian Dental Association Victorian Branch (ADAVB)
Application to deal with contraventions involving dismissal
[1] On 6 November 2025, Mr. Clayton Hammock was dismissed from his employment with Australian Dental Association Victorian Branch Inc (ADAVB).
[3] The Commission has power to extend the time for making the application if the Commission is satisfied that there are exceptional circumstances under s 366(1)(b).
[4] On 14 January 2026, I heard Mr. Hammock's extension of time application by determinative conference using Microsoft Teams. Mr. Hammock appeared and represented himself. ADAVB was represented by Ms. Nicole Visedo of the firm Citation Group Legal. Associate Professor Neil Hewson and Ms. Carolyn Ng of ADAVB were also present.
[5] For the following reasons, I do not grant an extension of time to Mr. Hammock and therefore his application is dismissed.
When must an application for the Commission to deal with a dispute be made?
[6] Before dealing with the dispute, I must be satisfied that the application was made in time.
[7] Section 366(1) of the Act provides:
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
Was the Application made within 21 days after the dismissal took effect?
[9] Mr. Hammock's application was filed on 28 November 2025. It was 1 day late. I therefore need to consider whether to make an order to extend the period to make the application.
(b) any action taken by Mr. Hammock to dispute the dismissal.
(c) prejudice to ADAVB (including prejudice caused by the delay).
(e) fairness as between Mr. Hammock and other persons in a similar position.
[14] Mr. Hammock gave five reasons for delay in his written and oral submissions.
[15] Mr. Hammock made these submissions on this reason:
Shortly before my employment ended, I informed my manager in writing that I was dealing with exceptional personal circumstances requiring immediate attention at home. These circumstances significantly disrupted my wellbeing, my stability, and my ability to focus on anything outside of managing my safety and immediate personal needs. Although I took only two days of short-term leave before returning to my duties, the situation did not resolve. The stress, instability and practical impacts continued after my dismissal and directly affected my capacity to prepare and submit an application within the 21-day timeframe.
[16] The application attached an e-mail dated 13 October which Mr. Hammock sent to Ms. Sian Reeder, his manager. It included the following text:
I wanted to let you know that I'm currently dealing with a very serious and distressing situation at home. It's not something I share lightly, but it's having a significant impact on my ability to focus and manage work right now.
I'm taking today to attend to important safety matters, including learning more about the process of obtaining a Family Violence Order, and I'm seeking appropriate support to stabilise things as soon as possible. I expect this should only require today, but if additional time is needed, I will let you know promptly.
[17] ADAVB argues this reason is "unsupported by particular details or corroborating evidence".
[18] In the conference I asked Mr. Hammock for more particulars of this reason. In response he said his relationship with his partner had deteriorated over a longer period and escalated to the point where he was involved in a physical altercation with his partner around 13 October. As a result, he sought advice on applying for a family violence order (which he ultimately did not seek) and started the process of leaving the home he shared with his partner and looking for alternative accommodation.
[19] I am sure the domestic violence Mr. Hammock experienced was destabilizing and extremely stressful. However, the physical altercation took place 24 days before his dismissal. The lack of proximity between the incident of domestic violence, his dismissal, and the period between the dismissal and the filing of his application may count against it being a good reason for the delay.
[20] Mr. Hammock explains this reason as follows:
Following the sudden loss of employment and income, I also needed to urgently search for new housing, prepare to relocate, and make arrangements to move to a new address. This process has been demanding and time-sensitive due to the personal circumstances I was facing. The combination of trying to secure accommodation, coordinating the move taking place on Monday, and addressing ongoing safety-related issues placed significant strain on my time, focus, and emotional capacity.
[21] He went on: "Once I had secured stable housing, organized my relocation and reached a point where I was able to manage my responsibilities more effectively, I submitted this application as soon as possible".
[22] ADAVB submits Mr. Hammock provides "no more than a bare assertion" that he was "looking to change his residence after the dismissal, and no evidence of his residence at the time of his dismissal, or his decision to relocate or any other particulars".
[23] In the conference, Mr. Hammock confirmed during the period following his dismissal he made a number of applications for accommodation and was finally successful towards the end of the period.
[24] Mr. Hammock asserts that "the combination of trying the secure accommodation, coordinating the move taking place on Monday, and addressing ongoing safety related issues placed a significant strain on my time, focus and emotional capacity". Unfortunately, his submissions do not explain why this led to a delay in filing the application. Leaving aside the emotional toll he was experiencing, moving house does not absorb every moment of a period of 22 days. On the evidence, I cannot find this a good reason for the delay.
[25] Mr. Hammock explained this reason in his written submissions:
At the same time, I was under pressure to find new employment as quickly as possible. Managing job applications and interviews while dealing with these exceptional circumstances further limited my ability to address formal processes such as preparing this application, gathering documents, and understanding the requirements for lodgement.
[26] In his oral submissions, Mr. Hammock stated that during the expiration of the 22-day period between his dismissal and the filing of his application, he made a number of job applications seeking new employment.
[27] ADAVB argues this cannot be a good reason for delay because:
[28] I agree with ADAVB. Seeking work after being dismissed is a universal experience. It therefore cannot be regarded as out of the ordinary course or uncommon.
[29] In his written submissions he gives a further reason for delay related to seeking clarification of his final pay.
Following my dismissal, I was actively attempting to clarify my final entitlements with my former employer. I made multiple written and verbal requests for an itemised breakdown of my final payment and for confirmation of what had been paid. I reasonably believed this information was necessary to understand my position before lodging any application. However, no documentation or clarification was provided, and this contributed to the delay.
[30] Ignorance of the law is not a good reason for a delay in filing an application. Mr. Hammock's belief that he required clarification of his final entitlements before he commenced a general protections application is wrong. Section 365 applications involve a consideration of the reasons for the dismissal. The termination payment is irrelevant to that consideration.
[31] Mr. Hammock raised a further reason related to a diagnosed health issue which arose late into the period between his dismissal and the filing of his application. No medical evidence was provided to support this claim. I cannot take this reason into account in an assessment of whether I should extend time.
[32] An incident of domestic violence can be a special or uncommon circumstance, however, in this case the incident occurred more than 24 days before his dismissal.
[33] During the period following his dismissal he was able to make applications for employment as well as applications for accommodation. His capacity to undertake these tasks cuts across an argument that he could not function adequately to file an application during the period of the delay.
[34] The lack of temporal proximity between the domestic violence incident and the period of the delay, and his demonstrated capacity to function during the period following his dismissal count against the incident providing a good reason for the delay.
[35] Mr. Hammock has failed to articulate the amount of time the search for new housing absorbed following his dismissal. Leaving aside the emotional toll of being forced to leave because of domestic violence, I cannot find the search for new housing was so time consuming as to prevent him from filing an application in time.
[36] Everyone who is dismissed is forced to seek new employment. It follows it cannot be regarded as a special or uncommon circumstance and cannot be a good reason for the delay.
[37] Clarification of a final payment is not a good reason for delaying the filing of a general protections application.
[38] This was a matter Mr. Hammock raised for the first time in the conference. He did not provide any evidence to support this reason. It follows it must be disregarded.
[39] The reasons for the delay articulated by Mr. Hammock, either individually or collectively, do not provide sufficient reason for the delay. This counts against an extension of time being granted.
WHAT ACTION WAS TAKEN BY MR. HAMMOCK TO DISPUTE THE DISMISSAL?
[40] Mr. Hammock made the following written submissions on this factor:
The dismissal was sudden, and without any foreshadowing. Had know more about my employers 'issues' with my performance actions would have been taken. The only other actions taken were to the ombudsman to enquire why it took my employer to send me an itemised breakdown of my final pay check**.**
[41] In the statement of Associate Professor Hewson filed by ADAVB he states Mr. Hammock did not take any action to dispute his dismissal between the date of his dismissal and the making of the application. In the conference Mr. Hammock conceded he took no action to dispute the dismissal between the dismissal date and the date he filed the application.
[42] This factor requires taking action taken to dispute the dismissal with the employer. Enquiries of the Fair Work Ombudsman are not relevant action for this factor. Also, it is well settled that an enquiry regarding a final payment is not action to dispute the dismissal.
[43] I am satisfied Mr. Hammock did not take action to dispute his dismissal before he lodged his application in this matter. This counts against the finding of exceptional circumstances.
WHAT IS THE PREJUDICE TO ADAVB (INCLUDING PREJUDICE CAUSED BY THE DELAY)?
[44] ADAVB conceded it suffered no prejudice by reason of the delay. This factor is neutral to a consideration of whether to extend time.
[45] Mr. Hammock's submissions on the merits of his application include:
I believe my dismissal contravenes section 351 because I had notified my direct manager in writing that I was experiencing circumstances at home connected to family and domestic violence, and that I may require short-term leave (up to 10 days) under the entitlement provided by the Fair Work Act. I made this disclosure in late October, explaining that I was dealing with personal safety concerns and seeking appropriate support. I took only two days of leave and then returned to my role, continuing to carry out all duties as Events Team Leader, including delivering scheduled events that week.
Less than a month after notifying my direct manager of these circumstances, my employment was terminated during probation. The termination was abrupt, provided without written reasons, warning, or an opportunity for me to respond. At no time before or after my disclosure were any concerns raised regarding my performance or conduct. I am not aware of any documented reason for the dismissal.
I am also not certain that the individual who terminated my employment, the CEO, was aware of the disclosure I made to my direct manager. This uncertainty raises further concern about whether relevant information was communicated internally, and whether proper consideration was given to my circumstances or the protections owed to me under the Fair Work Act.
[46] ADAVB's submissions on this factor include:
Associate Professor Hewson [who was the decision maker] states he was unaware of the Applicant's alleged personal circumstances (including those relating to domestic violence and safety) until 17 December 2025, and upon receipt of the Applicant's submissions on the jurisdictional objection19. The Applicant admits he is unsure whether this was known to Associate Professor Hewson prior to the Dismissal
There is no basis on which the FWC could conclude that the Applicant had any merit that would weigh in favor of allowing the Applicant a further period to make the Application.
[47] In their oral submissions, ADAVB stated Mr. Hammock had been terminated at the end of his probation period. The termination was based on Mr. Hammock's capacity to do the job. This followed a series of complaints by customers which ADAVB say were forwarded to Mr. Hammock. Mr. Hammock confirmed he had received the complaints but also received e-mails from customers praising his work.
[48] Mr. Hammock conceded Associate Professor Hewson did not know of the domestic violence that Mr. Hammock had reported to his manager. He relied on the "corporate knowledge" of ADAVB. I took this to mean that a Court could find that Ms. Reeder may have been involved in the decision to terminate him and this could have coloured the decision which was finally made.
[49] This case has low prospects of success. However, it is possible the evidence may support an argument that, in so far as Ms. Reeder was involved in the decision to terminate Mr. Hammock, that decision may have included a prohibited reason.
[50] A determination of the merits turns on the full elucidation of the facts concerning the decision making process of ADAVB. This requires a full hearing. I therefore cannot reach a concluded view on the merits. This factor is therefore neutral in a consideration of exceptional circumstances.
FAIRNESS AS BETWEEN MR. HAMMOCK AND OTHER PERSONS IN A SIMILAR POSITION
[51] No compelling arguments were made by either party about this factor. This factor is therefore neutral to an extension of time being granted.
IS THE COMMISSION SATISFIED THAT THERE ARE EXCEPTIONAL CIRCUMSTANCES, TAKING INTO ACCOUNT THE MATTERS ABOVE?
Two factors against an extension of time being granted
[52] Mr. Hammock provides no good reason for the delay under s 366(2)(a), and he took no action to dispute his dismissal under s 366(2)(b). These factors count against an extension of time being granted.
[53] There is no prejudice to ADAVB by reason of the delay under s 366(2)(c). The merits of the application rest on a full exploration of the facts concerning the decision-making process to terminate Mr. Hammock. This is not possible without a full hearing. This factor is therefore neutral under s 366(2)(d). No compelling arguments were made on the fairness as between Mr. Hammock and other persons in a like position under s 366(2)(e). It follows three of the factors are neutral to a consideration of exceptional circumstances.
[54] Two factors count against an extension of time being made and three are neutral considerations. Therefore, on balance, taking into account all the factors in s 366(2), I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.
Mr. Clayton Hammock, the Applicant, on behalf of himself.
[1] Singh v BSG Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
Printed by authority of the Commonwealth Government Printer
Clayton Hammock
Australian Dental Association Victorian Branch Inc Trading AS Australian Dental Association Victorian Branch