Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] On 10 April 2025, Mr. Cody Harwood was dismissed from his employment with Scotch Oakburn College Inc. (Scotch).

• [2] On 9 May 2025, he made an application alleging he was dismissed from his employment in contravention of Part 3-1 of the Act. General protections applications are required to be made within 21 days of the dismissal taking effect. His application was 8 days late.

• [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 4 July 2025, I heard Mr. Harwood's extension of time application by way of a determinative conference. Mr. Harwood appeared and represented himself. Scotch was represented by Ms. Kelly Ralph of law firm Russell Kennedy.

• [5] For the following reasons, I do not grant an extension of time to Mr. Harwood 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?

• [8] The 21-day period does not include the day on which the dismissal took effect.[1]

• [9] Mr. Harwood's dismissal took effect on 10 April 2025. It follows the final day for filing the application was 1 May 2025 and ended at midnight on that day.

• [10] Mr. Harwood's application was filed at 6:14 PM (AEST) on 9 May 2025. It was made 8 days late. I therefore need to consider whether to make an order to extend the period to make the application.

• [11] I may allow a further period for a general protections application if I am satisfied there are exceptional circumstances, taking into account:[2]

(b) any action taken by Mr. Harwood to dispute the dismissal.

(c) prejudice to Scotch (including prejudice caused by the delay).

(e) fairness as between Mr. Harwood and other persons in a similar position.

• [12] Each of these matters must be considered in assessing whether there are exceptional circumstances.[3] I set out my consideration of each matter below.

• [13] In s 366, "exceptional circumstances" means "out of the ordinary course, unusual, special or uncommon". The circumstances are not required to be unique, unprecedented or rare. The procedure I am required to follow is to weigh each of the factors in s 366 (a) to (e) to assess whether there are overall, exceptional circumstances

• [14] The reason for the delay is not itself required to be an exceptional circumstance. The reason is one of the factors that must be weighed in assessing whether there are exceptional circumstances.[4]

• [15] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr. Harwood has not provided any reason for any part of the delay.[5]

• [16] The primary reason Mr. Harwood gives for the delay is "a state of depression and anxiety". In his application, he explains:

"This termination has impacted on my mental health, to the extent where I have experienced acute stress since 10th April 2025. Also, I am now in a position of financial hardship. My mental health has been impacted, and due to the nature of how I was treated, I have not been able to look at the requirements for making a claim until recently, it has been too emotionally distressing for me, I have been in a state of depression and anxiety since 10th April 2025. Also, I have not been able to bring myself to look at the termination letter until this past week, although it was read to me at the termination meeting, I have found that by reading this letter it is very emotionally distressing and triggering for me. Furthermore, my GP has provided a supporting letter for the extension request of lodging a claim past the 21-day submission timeframe. See attached. I have also needed some time to seek legal advice, which has only happened this week as my mental health and well-being was not in the right state to start this process until now."

• [17] The "supporting letter" he refers to is a letter dated 9 May 2025 from Dr. Deanna Devers which relevantly states:

"Since [the termination of his employment], Cody has been emotionally distressed to the point where he has not looked over the relevant documentation until the past few days. He has realised he has missed the date to appeal the decision, 21 days post April 10th.

He has requested an extension to this timeframe for responding to acute stress."

• [18] Mr. Harwood also filed a letter of support from Father Ben Brooks, the parish priest of Meander Valley Catholic Parish, dated 14 May 2025 which refers to his observations of the "stress" and "depression" Mr. Harwood was experiencing (with emphasis added):

"...As Cody's resident landlord, parish priest, and friend, I have observed very closely the impact that this dismissal has had on him; emotionally, mentally, physiologically, financially.

Prior to Cody's dismissal on 10th April 2025, he was generally happy and focused on getting on with life, he went to work daily and was able to function well in his personal life. Unfortunately, his dismissal came abruptly and this deeply impacted his wellbeing.

I noticed a change in Cody straight away; he wasn't his happy self and there seemed to be a decline in his general state of mind. I believe he experienced some kind of depression and was not sleeping some nights and stayed in bed all day. Cody would often speak to me about the sadness and stress that this situation has caused him. Since he was dismissed by his employer he has unfortunately found himself in a state of severe financial hardship, and with no income, he has not been able to pay his usual bills, such as car loan repayments, board and other basic necessities of life. The impact that this dismissal has had on Cody has been sad to see, and I've been concerned for his well-being.

With Cody's state of mind and emotional state, he has not been able to focus on anything to do with his dismissal until recently, it was only in the past week that he was able to bring himself to read the termination letter for himself, and work on the process of lodging an application, a process which takes a lot of energy, time, and focus. This process has been triggering for Cody; it has taken him a lot of effort and mental focus to be able to gather the required information and submit his application, which he has found to be a very stressful process.

I appreciate that the application lodgment time is 21 days, but factoring in Cody's situation, the stress that his dismissal has caused and its impact on his well-being, I kindly request that you accept this application on compassionate grounds as an exceptional circumstance. I am happy to be contacted at anytime to discuss this further."

• [19] In his oral submissions, Mr. Harwood confirmed his dismissal had caused him such mental anguish he could not open his termination letter for a number of days. His mental state was such he was only able to think about and act on his desire to commence this proceeding around the time of, or after, the twenty one day time limit had expired.

Financial hardship and delay in getting legal advice

• [20] Father Brooks makes some observations about the financial impact the dismissal has had on Mr. Harwood. In his application, Mr. Harwood himself claims financial hardship as a reason for the delay. Mr. Harwood also late filed copies of documents from Angle Auto Finance which includes a default notice on a Fixed Rate Loan Agreement dated 26 May 2025 and subsequent correspondence with that finance company

• [21] In his application, Mr. Harwood also claims delay in seeking legal advice as a reason. The only material relevant to seeking legal advice as a reason is an e-mail dated 8 May 2025 to Mr. Harwood from Ashley Fuller, who is an associate of the firm A Whole New Approach Pty Ltd, which can be described as a short advice on prospects.

Financial hardship and delay in seeking legal advice

• [22] Financial hardship is an almost universal experience for people who have been sacked. Delay in obtaining legal advice is also common. It follows that neither of these reasons are sufficient to support a finding of exceptional circumstances.

• [23] It is clear Mr. Harwood has suffered mental anguish and stress as a result of the dismissal. Can that be a sufficient reason to support an argument for exceptional circumstances?

• [24] The principals for dealing with mental health as a reason for delay has been helpfully summarised by Deputy President Easton in Bianco Mamo v. ICLED Australia Pty Ltd[6] which deals with an extension of time to make an unfair dismissal application.[7] In that case, the Deputy President, after a considering the decisions in this area, summarised the approach as follows:

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

(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

(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; and

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

• [25] I rely on and adopt the principles enunciated in Mamo. Applying the Mamo principles to the material filed by Mr. Harwood on his mental health, I find:
  • In so far as Mr. Harwood relies on his own self-assessment of his psychological incapacity, that is "unlikely to be sufficient".
  • His medical report from Dr. Devers does not contain a diagnosis of a medical condition such as a depressive illness or anxiety disorder. It merely states he is "emotionally distressed" which could not be regarded as a special or uncommon reaction to a dismissal.
  • With all due respect to the pastoral observations of Fr. Brooks, they cannot be regarded as a medical opinion. They cannot be a diagnosis of a medical condition related to mental health, nor can they amount to an explanation of how such a medical condition impaired Mr. Harwood's ability to file the application in time.

• [26] The material on the mental health of Mr. Harwood does not extend to a medical diagnosis of a mental health condition nor an explanation of why such a condition rendered him incapable of filing his application on time. The material filed falls into the category of distress and anguish. These effects, which are hard to cope with and distressing, cannot be described as uncommon or special. It follows it cannot be a sufficient reason to support a finding of exceptional circumstances.

• [27] I therefore find that the reasons given by Mr. Harwood for the delay, namely: mental health, financial hardship and delay in seeking legal advice are insufficient reasons for the delay. This factor counts against a finding of exceptional circumstances.

WHAT ACTION WAS TAKEN BY MR. HARWOOD TO DISPUTE THE DISMISSAL?

• [28] It is not contested that Mr. Harwood took no action to dispute his dismissal between the date of his termination and the filing of the application. This factor counts against the finding of exceptional circumstances.

WHAT IS THE PREJUDICE TO SCOTCH (INCLUDING PREJUDICE CAUSED BY THE DELAY)?

• [29] Scotch claims no forensic or other prejudice arising from the delay. The absence of prejudice is not in itself a matter that supports a conclusion of exceptional circumstances. This factor is neutral to a finding of exceptional circumstances.

• [30] Mr. Harwood filed a series of documents focusing on the alleged unfair process of his termination. The primary focus of a general protections claim is not the manner of the dismissal but rather the reasons why the employer made the decision to dismiss. Process evidence is only relevant if it can be used to infer the reason for the dismissal included a prohibited reason.

• [31] In his application he claims he was dismissed for exercising his workplace rights. He writes: "As an employee, I believe my rights were not met in the following ways" and then goes on to explain why he considers his dismissal was "unfair".

• [32] One of the matters he cites in his application that could be an exercise of workplace rights is his request for further support prior to his dismissal. Mr. Harwood elaborates on this in a very late document he filed on 4 July 2025, where he states:

"The failure to provide further support to me resulted in adverse action against me. I exercised my workplace right to request further support regarding the initial concerns raised on 18/02/2025 but I was ignored. Subsequently I was dismissed from my employment on 10 April 2025 due to the Principal apparently receiving further complaints as which he deemed to be similar to the ones raised at the meeting on 18/02/2025."

• [33] In the 4 July 2025 document, Mr. Harwood refers back to a paragraph in an e-mail he sent to the Principal dated 18 February 2025 which states

"Moving forward, I will have some questions for you about future practice, regarding staff who may seek my assistance or counsel for personal life matters or work related matters. As a chaplain and keeping in mind the recent complaints, where do I draw the line in terms of pastoral support? As staff have made a compliant about me asking or engaging in personal conversation, how should I support staff who may come in to discuss items of a personal nature."

• [34] This appears more of a request than a complaint. However, taking a generous interpretation, it could be seen as a grievance about the manner in which he is being asked to undertake his pastoral duties. Scotch denies the dismissal was for any reason other than related to Mr. Harwood's performance.

• [35] With some justification, Scotch argue Mr. Harwood "is seeking to claim for unfair dismissal in circumstances where he was dismissed within the minimum employment period and accordingly has no standing to bring that claim" and therefore submits "the application has no prospects of success".

• [36] I agree with this assessment with respect to most of the matters put by Mr. Harwood except for his request for support and guidance in the letter of 18 February 2025. That request could be argued to be a complaint and therefore an exercise of a workplace right. I emphasise the merits of this element are no more than arguable.

• [37] The merits of that single claim can only be decided at a full hearing. Whether or not it was an active reason for the termination is a contested fact. It is not appropriate for the Commission to resolve contested facts in an extension of time application. In the absence of a full hearing, it is not possible to make any firm assessment of the merits, nor can I assess whether or not his request could be a complaint under the Act without hearing legal argument.

• [38] There is one merits issue that can only be settled by a hearing to determine contested facts. It is not appropriate for this factor to count either for or against an extension of time. This factor is neutral to a finding of exceptional circumstances.

FAIRNESS AS BETWEEN MR. HARWOOD AND OTHER PERSONS IN A SIMILAR POSITION

• [39] Neither party made submissions on this issue. This factor is also neutral to consideration of whether to extend time.

IS THE COMMISSION SATISFIED THAT THERE ARE EXCEPTIONAL CIRCUMSTANCES, TAKING INTO ACCOUNT THE MATTERS ABOVE?

• [40] Reasons for Delay: The three reasons for delay, namely his mental health, financial hardship and delay in seeking legal advice are not adequate explanations for the delay. Therefore, this factor counts against an extension of time under s 366(2)(a).

• [41] Action to dispute the dismissal: Mr. Harwood took no action to dispute his dismissal prior to filing the application. This factor counts against an extension of time being granted under s 366(2)(b).
• [42] The considerations in s 366(2)(c), (d) and (e) are neutral factors in an assessment of exceptional circumstances for the purposes of s 366(2):

• Prejudice to the employer: Scotch made no submissions that it would suffer prejudice by reason of the delay.
• Merits: It is merely arguable that prior to his dismissal, Mr. Harwood request for support could be regarded as a complaint. It is a contested fact that this request was an active reason in the dismissal. I am not able to assess the merits of that narrow point as a factor in determining whether I should grant an extension of time.
• Fairness between persons: No submissions were made on fairness arising between Mr. Harwood and other persons in a similar position.

• [43] I conclude the reasons for the delay under s 366(2)(a) and the failure of Mr. Harwood to dispute his dismissal under 366(2)(b) both count against an extension of time granted. All the other factors in ss 366(2)(c), (d) and (e) are neutral.

• [44] Two factors count against an extension of time being granted. The other 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.[8]

[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.

[2] Section 366(2)(b).

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[6] [2021] FWC 3903

[7] [2021] FWC 3903

[8] PR788969.

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