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[104]
[2025] FWC 3828
General information, not legal advice.
Fair Work Commission
2025-12-19
Original judgment source is linked above.
[2025] FWC 3828 [Note: An appeal pursuant to s.604 (C2026/28) was lodged against this decision.]
s.365 - General protections
Application to deal with contraventions involving dismissal
[1] Mr Colin McKerlie has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Mr McKerlie's allegations that he has been dismissed from his employment with Private Fleet Group Pty Ltd (PFG) in contravention of Part 3-1 of the FW Act.
[2] Section 366(1) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. The application was made on 29 July 2025.
[3] The information in the application and in the employer response form lodged by PFG indicates that the application has been made out of time.
[4] Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application.[1]
[5] In summary, I have found that Mr McKerlie's employment ended on 2 May 2025. The application should have been made on 23 May 2025 to comply with s.366(1) of the FW Act. The application was therefore made 67 days outside of the 21-day limit.
[6] I have found that the circumstances in which the application was made are not exceptional, according to the factors in s. 366(2) of the FW Act, and so I have not granted an extension of time to file the application. The application is dismissed.
When must an application for the Commission to deal with a dismissal dispute be made?
[7] Section 366(1) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
[8] It is a matter of record that the application was made on 29 July 2025.
[9] There is no dispute between the parties that the dismissal took effect on 2 May 2025.
Was the application made within 21 days after the dismissal took effect?
[11] As I found above, the dismissal took effect on 2 May 2025. The final day of the 21 day period was therefore 23 May 2025 and ended at midnight on that day. The application was made on 29 July 2025. The application was made 67 days late.
[12] As the application was not made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
Should the Commission a further period for the application to be made?
[13] Under s.366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(b) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(e) fairness as between the Applicant and other persons in a similar position.
[15] I set out my consideration of each matter below.
[19] In the application, Mr McKerlie cited the following reasons for the delay:
[20] At the hearing, Mr McKerlie also relied upon s.725 of the FW Act and submitted that this provision specifically contemplated the circumstances of a person filing a general protections claim following the dismissal of an unfair dismissal application on jurisdictional grounds. Mr McKerlie submitted that having regard to s.725, the only rational interpretation of the time limit is that it should run from the date of Commissioner Sloan's decision in relation to the unfair dismissal claim.
[21] PFG submitted that Mr McKerlie was aware from the outset that PFG is a small business. This was raised and argued before Commissioner Sloan in the unfair dismissal proceedings. PFG submitted that the small business jurisdictional objection was foreseeable and entirely within Mr McKerlie's control. PFG submitted that Mr McKerlie's decision to pursue an unfair dismissal claim first, instead of general protections claim, was a strategic choice, not an exceptional circumstance.
[22] Mr McKerlie relied upon s.725 of the FW Act which provides:
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.
[23] Section 729 is relevant to Mr McKerlie's circumstances. It provides:
(a) an unfair dismissal application has been made by the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; or
(iii) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.
(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.
[24] The effect of ss.725 and 729 is that ordinarily, Mr McKerlie would be prohibited from making a general protections claim because he has made an unfair dismissal claim. However, Mr McKerlie claims that the prohibition does not apply because Mr McKerlie's unfair dismissal claim 'failed for want of jurisdiction'.
[25] Mr McKerlie referred to the Explanatory Memorandum of the Fair Work Bill 2009 which provides in relation to s.725:
2709. Each of clauses 726 to 732 deals with different potential remedies. They each set out particular circumstances in which a person may not be prevented from making an application under one of the clauses even where they have initiated an application under another clause.
[26] At the commencement of the FW Act the time limits for lodging unfair dismissal and general protections claims were 14 and 60 days respectively from the date of dismissal.
[27] These time limits were amended to 21 days from the date of dismissal by the Fair Work Amendment Act 2012.
[28] The reasons for the changes to the time limits for unfair dismissal and general protections claims can be found in the Explanatory Memorandum to the Fair Work Amendment Bill 2012 which relevantly provides:
The general protections in Part 3-1 of the FW Act prohibit adverse action against a person because:
Adverse action includes dismissal of an employee or termination of an independent contractor's contract, and includes other action such as prejudicially altering the position of an employee or independent contractor. Coercion and misrepresentations in relation to workplace rights and industrial activities are also prohibited.
Part 1 of Schedule 5 to the Bill shortens the time limit for applying to the FWC to mediate or conciliate a dispute about a dismissal in contravention of Part 3-1 from 60 days to 21 days. The FWC will retain its existing ability to accept late applications in exceptional circumstances, taking into account factors such as the reason for delay, fairness and the merits of the case.
This amendment will align the timeframe for lodging dismissal-related general protections claims with the new 21 day time limit for lodging unfair dismissal applications. This will provide greater clarity to applicants and respondents and will require applicants to determine at the outset which claim they intend to pursue. Where an employee challenges a dismissal, it is in the interest of both the employee and the employer for the matter to be resolved quickly so that, in the event of a successful challenge, the employee can return to their original position with minimal impact on relationships and management of the business. Together with the amendment made by Part 1 of Schedule 6, this amendment balances the need to provide sufficient time for employees to consider the most appropriate application, and the need to provide certainty for employers in relation to the types of claims they may be exposed to. The FWC's discretion to accept late applications protects employees in relation to how the time limit is applied.
Part 2 of Schedule 5 clarifies that workplace rights apply to 'persons' which include employees, employers and contractors.
[29] The Notes on Clauses section of the Explanatory Memorandum to the Fair Work Amendment Bill 2012 relevantly provide:
150. The general protections in Part 3-1 of the FW Act prohibit adverse action against a person because that person has a workplace right, is a member or officer of an industrial association or engages in industrial activity, or because of the person's race, colour, sex, sexual preference or other prescribed attributes. Schedule 5 amends the timeframe for making dismissal-related general protections applications to the FWC and clarifies the objects of Part 3-1.
151. Item 1 amends paragraph 366(1)(a) to shorten the current 60 day time limit for applying to the FWC to mediate or conciliate a dispute about a dismissal allegedly in contravention of Part 3-1. Where a person alleges that they have been dismissed in contravention of Part 3-1, the application to the FWC to deal with the dispute must be made within 21 days of the dismissal taking effect. The FWC will retain its existing discretion to accept late applications if it is satisfied that there are exceptional circumstances.
152. This amendment responds to Panel recommendation 49, and will align the timeframe for lodging dismissal-related general protections claims with the new 21 day time limit for lodging unfair dismissal applications.
153. Item 1 of Schedule 11 inserts a new Schedule 3 into the FW Act. Item 9 of Schedule 3 provides for this amendment to apply in relation to dismissals that take effect after the commencement of this Part.
157. Part 3-2 of the FW Act provides remedies for employees who are unfairly dismissed. Schedule 6 makes amendments in relation to certain procedural matters concerning unfair dismissal applications.
158. Item 1 amends paragraph 394(2)(a) to extend the timeframe for lodging unfair dismissal applications to the FWC from within 14 days of the dismissal taking effect to 21 days.
159. This amendment responds to Panel recommendation 40, and will align the timeframe for lodging unfair dismissal applications with the new 21 day time limit for lodging dismissal-related general protections claims.
160. Item 1 of Schedule 11 inserts a new Schedule 3 into the FW Act. Item 10 of Schedule 3 provides for this amendment to apply in relation to dismissals that take effect after the commencement of this Part.
[30] The Explanatory Memorandum for the Fair Work Bill 2008 makes it clear that the legislature initially contemplated that a person could pursue a general protections application if they were unable to make a 'competent' unfair dismissal application. This was facilitated in part by the time limit for a general protections application being 60 days from the date that the dismissal took effect, which may have been regarded as sufficient time for a jurisdictional objection in relation to an unfair dismissal application to be heard and determined. However, this position changed with the passage of the Fair Work Amendment Bill 2012 which aligned the timeframe for lodging dismissal-related general protections claims and unfair dismissal applications with the effect that applicants would be 'require[d]...to determine at the outset which claim they intend to pursue' subject to the Commission's discretion to accept late applications.
[31] Having regard to the Explanatory Memoranda for the Fair Work Bill 2008 and the Fair Work Amendment Bill 2012 and the principles of statutory construction, I do not accept Mr McKerlie's submission that the only rational interpretation of the time limit is that it should run from the date of Commissioner Sloan's decision in relation to the unfair dismissal claim. As s.366(1) makes plain, the application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows if the Commission is satisfied that there are exceptional circumstances, taking into account the matters in s.366(2).
[32] An employee who wishes to challenge their dismissal may choose to lodge either an unfair dismissal or general protections application, depending upon their eligibility to do so and the facts of the case. For some employees, that choice may be relatively straightforward, but for others, there may be a degree of complexity in determining their eligibility during the 21 day time period. For an employee who is eligible to bring both an unfair dismissal application and a general protections application, they must make a decision during the 21 day period after the dismissal about which application to lodge because of s.725. If a person makes an unfair dismissal application and the Commission finds that the dismissal is not unfair, the person is prohibited by s.725 from then making a general protections application. If a person is not eligible to make an unfair dismissal application, it does not automatically follow that they will be able to establish that the dismissal was in contravention of the general protections provisions. However, it may be relatively easy for the person to make a decision to lodge a general protections application during the 21 day period after the dismissal because it is clear that an unfair dismissal application is not available to them.
[33] The situation of a person who makes an unfair dismissal application in circumstances where they are unaware that they are not eligible to do so is more complex. The dismissal of that person may or may not have been in breach of the general protections provisions of the FW Act. They will only be disadvantaged by lodging an unfair dismissal claim which is dismissed on jurisdictional grounds if they are likely to be successful in their general protections claim. In Mr McKerlie's case, I do not accept the submissions of PFG that he should have known that PFG was a small business employer when making the application. The decision of Commissioner Sloan records that PFG had 14 employees at the time of Mr McKerlie's dismissal and that Mr Mr McKerlie had nominated a number of other persons that were working at the time of his dismissal who had the potential to increase the number of employees to 15 or more. This included PFG's General Manager, who was engaged through an independent contracting arrangement and three other workers who were engaged as independent contractors. There is no indication in Commissioner Sloan's decision or in any other material before me that at the time of making the unfair dismissal application, Mr McKerlie was aware that the four independent contractors were engaged as such, rather than employees.
[34] However, at some stage before the hearing before Commissioner Sloan, PFG objected to Mr McKerlie's application, and the matter was set down for hearing in relation to whether Mr McKerlie had completed the minimum employment period which required determination of whether PFG was a small business employer. Commissioner Sloan's decision indicates that the parties filed evidence and that documents were produced by PFG pursuant to an Order for Production issued at Mr McKerlie's request. At any time between becoming aware of PFG's objection and the hearing, Mr McKerlie could have reassessed his application, particularly with regard to the material that was filed. If, following that assessment, he decided that a general protections application was more likely to result in a successful outcome, he could have discontinued the unfair dismissal application and filed a general protections application instead. This would still have resulted in the general protections application being filed outside the 21 day time limit (as the unfair dismissal application was filed on the nineteenth day after the dismissal) but the delay would have been shorter and PFG would not have been required to attend the hearing before Commissioner Sloan.
[35] Ultimately, the reason for the delay is because Mr McKerlie made an unfair dismissal application and was prohibited from making a general protections application until the unfair dismissal application was dismissed on jurisdictional grounds. While this establishes that there was a rational explanation for the late filing of the application, it does not, by itself amount to an exceptional circumstance. This is because the Commission routinely dismisses unfair dismissal applications by persons who are not eligible to bring such applications and it is likely that at least some of those persons believe that they are also eligible to bring a general protections claim but do not bring such claims because of the time limit. Whether I am satisfied that there are exceptional circumstances in Mr McKerlie's case depends upon my consideration of the reason for the delay together with the other factors in s.366(2).
What action was taken by Mr McKerlie to dispute the dismissal?
[36] Mr McKerlie submitted that he was not given any opportunity to dispute the dismissal as he was dismissed without warning on 2 May 2025.
[37] PFG submitted that it is not correct that Mr McKerlie had no opportunity to dispute his dismissal and that he exercised his right by filing an unfair dismissal application, which was fully heard and determined. PFG submitted that Mr McKerlie was afforded the opportunity to present evidence and submissions, and Commissioner Sloan handed down a written decision. That process satisfied Mr McKerlie's right to challenge the dismissal.
[38] I find that Mr McKerlie disputed the dismissal by filing an unfair dismissal application on 21 May 2025 and that this matter is a neutral consideration.
What is the prejudice to the employer (including prejudice caused by the delay)?
[39] Mr McKerlie submitted there is no prejudice to the employer as there was no substantive delay in filing this action.
[40] PFG submitted that granting an extension would prolong proceedings and impose further legal costs, uncertainty, and operational disruption on a small business. PFG submitted that it is entitled to finality, having already defended a claim that was fully heard and decided. PFG submitted that relitigation of the dismissal under a different application type would be highly prejudicial.
[41] The intention of Parliament in enacting the Fair Work Amendment Act 2012 was that applicants are required to determine at the outset which claim they intend to pursue and to provide certainty for employers in relation to the types of claims they may be exposed to. I appreciate that Mr McKerlie was not initially aware that PFG was a small business employer, but once he became aware that PFG was contending that this was the case, he continued with the unfair dismissal application. If Mr McKerlie had discontinued the unfair dismissal application prior to the hearing, I may have found that the prejudice to PFG was negligible. However, PFG has already been put to the expense and effort of defending an unsuccessful unfair dismissal claim and will be put to further effort and expense in defending a general protections claim if the extension is granted. These matters weigh against against a finding of exceptional circumstances.
[42] In the application, Mr McKerlie claimed that during his employment with PFG he made complaints about the PFG's methods of operation and the management of PFG. The complaints included the failure of PFG to provide data analysis to allow its employees to improve their performance; the failure of PFG to implement processes which would allow its employees to avoid problems with the handling of deals after they had been agreed by customers; the failure of PFG to implement systems which would require all employees to make notes of relevant events in PFG 's systems and the failure of PFG to instruct its employees to notify sales staff of problems with deals in a timely and efficient manner.
[43] In submissions filed with the application, Mr McKerlie said that it is clear that the decision to terminate his employment was made as a result of exercising his right to make a complaint in the workplace regarding the performance of management in failing to provide adequate leads for sales consultants to meet their targets and management of the sales process generally. Mr McKerlie further submitted that his contract of employment, like all other contracts, contains an implied undertaking by PFG that its officers, agents and employees would act in good faith in performance of that contract and the clear lack of good faith on the part of those people in the events leading up to his termination supports the application.
[45] In my view, it is unlikely that the complaints which Mr McKerlie made about PFG would be regarded as 'founded on a source of entitlement' in a contract of employment or elsewhere and therefore involved the exercise of a 'workplace right' within the meaning of that term in s.341(1). It follows that I am not persuaded that Mr McKerlie would be likely to succeed in a general protections claim, however I am not able to form more than a preliminary view about this matter. As such, it is a neutral consideration.
Fairness as between Mr McKerlie and other persons in a similar position
[46] Mr McKerlie submitted that it is standard operating procedure for the Commission to allow a general protections application to be brought in circumstances in which a jurisdictional objection has led to the dismissal of an unfair dismissal application, as in this case. Further, Mr McKerlie submitted that even on the reasoning adopted by Commissioner Sloan in his decision there was no reasonable basis for Mr McKerlie to believe during his period of employment with PFG that PFG was at any time employing fewer than 15 people other than for a period of two weeks directly before his dismissal.
[47] PFG submitted that Mr McKerlie knowingly pursued an unfair dismissal claim against a small business employer, despite the small business exemption being well-established under the FW Act. He was fully aware of PFG's status yet proceeded regardless. PFG submitted that permitting an extension would set an unfair precedent, enabling applicants to pursue multiple remedies sequentially until something succeeds. PFG submitted that this undermines certainty for employers, particularly small businesses, and is inconsistent with the purpose of the legislation.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
[49] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(b) action taken by Mr McKerlie to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(e) fairness as between Mr McKerlie and other persons in a similar position
[51] I am satisfied that Mr McKerlie took action to dispute the dismissal by filing an unfair dismissal application and that the delay in filing the general protections application is explained by the dismissal of the unfair dismissal application. However, neither of these matters amount to exceptional circumstances. If I was satisfied that Mr McKerlie had strong prospects of succeeding in the general protections claim and PFG had not incurred the costs and inconvenience of attending the unfair dismissal claim, I might have been satisfied that exceptional circumstances existed when considering these matters together with the matters in s.366(2)(a) and (b). However, as my findings about the merits of the case are a neutral consideration and as my findings about prejudice to the employer weigh against a finding of exceptional circumstances, I am not satisfied that exceptional circumstances exist in this case.
[52] Having regard to all of the matters provided in s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances so there is no basis to allow an extension of time. Mr McKerlie's application for the Commission to deal with a dismissal dispute is therefore dismissed.
[1] Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited [2022] FWCFB 234, [15]
[2] Singh v Trimatic 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]
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12]
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]
[10] Ivan Whittle v Redi Milk Australia Pty Ltd [2016] FWC 3773, [38]
[11] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]
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Colin McKerlie
Private Fleet Group Pty Ltd [2025] FWC 3828