s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] On 8 October 2025, Mr Craig McDonald made an application to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal.

• [2] Mr McDonald works at Youturn Limited (the Respondent), an organisation that works in the child safety, homelessness, mental health and suicide prevention spaces. Mr McDonald is a Case Manager.

• [3] Mr McDonald works in the Intensive Family Support Program (IFSP) for the Respondent and commenced employment with the Respondent in March 2018.

• [4] Up until 30 June 2025, Mr McDonald had been classified and paid by the Respondent as a Level 5 under the Social, Community, Home Care and Disability Services Award (the Award). From 1 July 2025, the Respondent has determined to classify and pay Mr McDonald as a Level 4. Mr McDonald continues to work for the Respondent but contends that the unilateral decision to reduce his classification and pay from a Level 5 to a Level 4 constitutes a dismissal pursuant to s.386 of the Act.

• [5] This decision deals with whether Mr McDonald's application has been made out of time, and if it has, whether an extension of time should be granted.

(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."

• [7] Directions were issued, providing the parties with an opportunity to file witness statements and submissions. A hearing was convened by video using Microsoft Teams on 4 December 2025. Mr McDonald represented himself. Ms Isabella Spurdle, Employee Relations Partner and Mr Darce Foley, General Manager - Community Services appeared for the Respondent.

• [8] Mr McDonald commenced a period of unpaid leave on 21 March 2025. He is nearly 65 years of age and dealing with complex family cases at work. He stated that after working for more than 40 years, and eight years with the Respondent, he needed a period of time to rehabilitate. He travelled to remote parts of Western Australia where at times, he needed to travel 'up the road' to set up a Starlink satellite connection.

• [9] During his leave, he did not have access to his work phone, emails, laptop or iPad.

• [10] On 10 June 2025, Ms Spurdle and Mr Foley contacted Mr McDonald by telephone to inform him that following a 12-month review of classifications, it had been determined that Mr McDonald's classification of Level 5 was incorrect. He was informed that he would be readjusted to a Level 4.4, resulting in a pay differential of $3.54 per hour. The duties and responsibilities would remain unchanged.

• [11] Mr McDonald asked about redundancy entitlements. Ms Spurdle stated that the role was not being made redundant and the only impact was the wage adjustment. Ms Spurdle's evidence is that Mr McDonald stated during the telephone call that he would contact "Fair Work" to discuss.

• [12] Following the telephone discussion, on 11 June 2025 Ms Spurdle sent the following letter by email to Mr McDonald's personal email address under the hand of Mr Foley:

Re: Notification of Incorrect Classification in IFS Case Officer roles

The purpose of this letter is to summarise the key points discussed during your meeting today with myself and Isa Spurdle, Employee Relations Partner. As part of Youturn's ongoing commitment to equity, fairness, and transparency, an external review was undertaken of IFS Case Officer classifications for the period between 1 July 2024 and 29 June 2025.

Following this review, we have identified that your position of Case Officer was incorrectly classified at Level 5 under the Social, Community, Home Care and Disability Services Award (SCHADS). As a result, your salary rate of $101,787.51 PA

was not aligned with the correct classification for your role.

We have now rectified this issue to ensure consistency and fairness across the team. From 1 July 2025, your role will be correctly classified at Level 4, and your pay will be adjusted accordingly.

• Your position of Case Officer is classified at Level 4.4.
• From 1 July 2025, your new pay rate will be $91,598.47 PA.
• The new payrate will be reflective in the first pay run of the financial year, scheduled for Tuesday, 15 July 2025.

To protect the privacy and interests of all parties involved, this matter is to remain strictly confidential. Please do not discuss this process with anyone other than myself or Isa Spurdle.

We understand that such matters may raise questions or concerns, and we are committed to supporting you throughout this transition. As always, Youturn's confidential Employee Assistance Program (EAP) is available to all staff. If you wish to access this service, please call [number].

If you have any further questions or require additional information, please do not hesitate to contact me directly.

Thank you for your continued contribution to Youturn."

• [13] The same day, Mr McDonald emailed Ms Spurdle and stated that he considered the decision to be unreasonable, unjustified and potentially in breach of workplace laws. Mr McDonald reminded Ms Spurdle that he was aware that there was a review being undertaken, and he was supportive of the female Level 4 Case Officers being paid as Level 5. He declared it was shocking to learn that he and the other Level 5 Case Managers will instead receive a reduction in pay.

• [14] Mr McDonald repeated that he and the other Case Managers had been informed that their classification had been grandfathered, and all new recruits were hired as Level 4 employees.

• [15] Ms Spurdle replied the next day to Mr McDonald's personal email address and stated that continuing with an incorrect classification would be inconsistent and detrimental to the broader organisation as well as other employees.

• [16] Ms Spurdle stated that the decision had not been taken lightly, nor was it unreasonable or unjustified. She stated that pay disparities have contributed to dissatisfaction and addressing the inequity was necessary to ensure fairness across the team. She concluded by stating that the decision had been made in the best interests of the majority of employees in the organisation as a whole.

• [17] Mr McDonald's evidence is that he did not hear anything further while he was on leave. Whenever there was a contract variation, he would receive it in writing and be required to sign it. The Respondent knew that he was on unpaid leave and did not have access to his work emails. Mr McDonald had hoped that what was put to him on 10 and 11 June 2025 would not be implemented.

• [18] In evidence given during the hearing, Ms Spurdle stated that the Respondent did not provide a place for a signature for Mr McDonald to agree to the reclassification and reduction in remuneration because she knew that he would not sign it.

• [19] Mr McDonald stated during the hearing that he did not have his colleagues' phone numbers with him and he had no way of contacting any other Case Managers while he was on leave. He agreed that he could have probably worked out their work email addresses and tried to send them an email from his personal phone, but he did not do so.

• [20] He agreed in cross-examination that on 14 August 2025 he received a text message from Mr Jordan Lovini, his colleague, to the effect of, "We've had a demotion, mate. All the best."

• [21] Mr McDonald did receive pay slips to his personal email address while on unpaid leave. He did not receive any remuneration during this time, although there is a pay rate on the pay slip which does equate to the lower rate of pay. Mr McDonald stated that when he tried to multiply the rate out, he could not understand it.

• [22] Mr McDonald returned from leave on 7 October 2025 and accessed his work email. He discovered emails sent to his work email address on 9 and 10 July 2025 with contract variation letters attached purporting to be effective 1 July 2025. The contract variations did not require a signature, informed him of the reduced classification and stated that his annual remuneration would be $91,598 while another stated it would be $94,793.

• [23] In evidence given during the hearing, Ms Spurdle stated that an administrative officer sent the emails to Mr McDonald's work email address instead of to his personal email address. Ms Spurdle agreed that she knew that he was on extended leave and did not have access to his work emails. Ms Spurdle asked Mr McDonald why he did not request his work laptop to be sent to him while he was on unpaid leave. Mr McDonald explained that he was on unpaid leave and would not appreciate efforts to have his work laptop sent to him in remote areas of Western Australia.

• [24] Upon learning that the Respondent did go through with the classification and remuneration reduction when he returned to work on 7 October 2025, Mr McDonald made this application the next day. He stated that he wanted to be able to attach documents that he could only access once at work.

• [25] Mr McDonald agreed that a male employee at Level 4 filled in for him while he was on leave. He understood he is the only male employee who had been employed as a Case Manager at Level 4.

• [26] Mr McDonald noted that in his February 2024 Supervision, Support and Development review, he stated that he felt uncomfortable with the pay levels in the team and he was advocating for the Respondent to find a way for the female Level 4 Case Officers to be progressed to a higher pay level. He stated that this would contribute to staff retention. He did not imagine, however, that following the review that he and his two male colleagues, Mr Lovini and Mr George Jacob would be reduced to Level 4 and suffer a significant pay reduction in the name of equality and fairness.

When was Mr McDonald notified of the change to classification and remuneration?

• [27] In a Full Bench decision in Ayub v NSW Trains,[1] the issue as to when an employee learns of their dismissal was discussed. The Full Bench stated the following [citations omitted]:

"[42] We likewise consider that the mere delivery of a document to an employee's usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document. That is, we do not consider that s.394(2)(a) requires the strict application of a "postal delivery rule" where the employee has a legitimate explanation for not being able to read the document immediately upon delivery. The circumstances in which this may be the case are undoubtedly manifold, but for example if an employee is on an approved period of annual leave and is holidaying away from home when a dismissal letter is delivered, there is no reason to conclude that the date of dismissal is the date of delivery and not when the employee returns home and first has a reasonable opportunity to read the letter."

• [28] Mr McDonald was informed of the impending reduction to his classification and remuneration by telephone on 10 June 2025. He then received a further email to his personal email address while in remote Western Australia on 11 June 2025.

• [29] Mr McDonald had hoped that the Respondent would not go through with the reclassification. He did not hear anything further from the Respondent, even though Ms Spurdle knew that he did not have access to his work email account and had contacted him via his personal email account.

• [30] Mr McDonald did not receive the formal notification of the change until his return on 7 October 2025 when he accessed his work email.

• [31] It is entirely possible that the Respondent could have had a change in direction following the announcement on 10 June 2025. It may not have gone through with the reclassification, noting the objection by Mr Lovini and Mr Jacob. In Lovini & Jacob v Youturn Limited & Foley [2025] FWC 3757, the Commission learned of Mr Lovini's legal representative's letters to the Respondent, imploring the Respondent not to make the changes as it would constitute a dismissal of Mr Lovini's employment. The Respondent chose to dismiss Mr Lovini's legal representative's concerns.

• [32] It is noted that Mr Lovini and Mr Jacob were informed via their work email of the change in early July 2025 by way of a contract variation.

• [33] No effort was made by the Respondent to send to Mr McDonald the contract variation in early July 2025 to his personal email address. It was within the Respondent's knowledge that he could not access his work emails, and Ms Spurdle had concluded that even if Mr McDonald did receive the contract variation, he would not sign to say that he agreed with it so therefore no place was made for his signature.

• [34] If the Respondent contends that Mr McDonald was informed formally of the reclassification on 10 June 2025, there would be no reason to send the contract variation in early July 2025.

• [35] Mr McDonald promptly made this application one day after he formally received notification of his reclassification and reduction in remuneration.

• [36] I am satisfied that Mr McDonald's application has been made within the 21-day time limit.

• [37] In the event that I am wrong about the application having been made within time, and Mr McDonald was informed of the dismissal on 10 June 2025, I will determine the application having regard to s.366(2) of the Act.

• [38] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd,[2] where the Full Bench said:

"[10] It is convenient to deal first with the meaning of the expression 'exceptional circumstances' in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression 'exceptional circumstances' in s.394(3) and held:

'[5] The word 'exceptional' is relevantly defined in The Macquarie Dictionary as "formatting an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.'

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression 'exceptional circumstances' was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

'23. I am of opinion that the expression "exceptional circumstances" requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:

"Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances."

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CL at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25 And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:

"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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" in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.'

[13] 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." [footnotes omitted].

• [39] For exceptional circumstances to arise, as contemplated by s.366(2) of the Act, it is not necessary that the applicant for the extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances exist.

• [40] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[3]

• [41] The test of 'exceptional circumstances' establishes a 'high hurdle' for an application seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[4] A decision whether to extend time under s.366(2) involves the exercise of a discretion.[5]

• [42] The reason for the delay in lodging an application is a factor that must be considered. The Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[6] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, though it is ultimately a question of degree and insight.[7]

• [43] A reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[8] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[9]

• [44] Mr McDonald was in remote parts of Western Australia and on his evidence, unsure if the Respondent had actually gone through with what it stated it would do: reclassify him and reduce his remuneration.

• [45] Mr McDonald was not in contact with Mr Lovini or Mr Jacob. He received one text message from Mr Lovini in August 2025 about a demotion. Mr McDonald did not have his work phone with contact numbers for peers, nor did he have his work laptop with him. He did not have access to any of the relevant documents he considered he needed to make an application.

• [46] Upon returning to work and opening up his work emails and discovering that the Respondent did write to his work email address in July 2025, informing him of the reclassification and reduced remuneration, Mr McDonald promptly made his application.

• [47] The reasons for the delay provided are, in my view, reasons that are supportive of an extension of time being granted.

Any action taken by the person to dispute the dismissal - s.366(2)(b)

• [48] Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant's employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[10]

• [49] Mr McDonald did not know for certain that the planned reclassification and reduction in remuneration took place until his return to work on 7 October 2025. While he did respond in writing on 10 June 2025 in response to the meeting that had been held by telephone with him, and he received a return email from Ms Spurdle, he took no further action.

• [50] He was, however, on unpaid leave and enjoying a sabbatical in remote areas.

• [51] I consider this to be a neutral factor in the overall assessment of whether there are exceptional circumstances to warrant an extension of time being granted.

Prejudice to the employer (including prejudice caused by the delay) - s.366(2)(c)

• [52] There is no prejudice to the Respondent on account of my findings in Lovini & Jacob v Youturn Limited & Foley [2025] FWC 3757. In that decision, I have determined that Mr Lovini and Mr Jacob were dismissed in the same circumstances as Mr McDonald. A telephone conference will be convened with Mr Lovini and Mr Jacob to try and resolve the matters between them and the Respondent. If Mr McDonald is joined in that telephone conference, there cannot be any prejudice to the Respondent.

• [53] There being no prejudice to the Respondent caused by the delay. I consider this to be a neutral factor in the overall assessment of whether there are exceptional circumstances to warrant an extension of time being granted.

• [54] It is well established that "it will not be appropriate for the Commission to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)."[11]

• [55] Mr McDonald asserts that he has workplace rights to continue to be paid as a Level 5 employee. The Respondent has steadfastly refused to recognise the common law contractual right Mr McDonald enjoys to be paid as a Level 5 employee.

• [56] While Mr McDonald has not included a s.351 protection on his Form F8 application form, and his application to the Commission was put together within one day, I consider that Mr McDonald and his two male colleagues would have a basis for pursuing their application in a Court of competent jurisdiction on the basis of discrimination on the grounds of their sex, being male. Mr McDonald would be free to add this ground to any application to a Court. The Respondent's correspondence to Mr McDonald talks a great deal about being required to reduce his remuneration and that of his two, long-serving male employees to provide fairness and equality to the other staff who are (all but one), female.

• [57] The merits of the application are, in my view, reasons that are supportive of an extension of time being granted.

Fairness as between the person and other persons in a like position - s.366(2)(e)

• [58] The criterion of "fairness as between the person and other persons in a similar position" was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm,[12] where it was said:

"...cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission."

• [59] Mr Lovini and Mr Jacob are persons in a like position. In those applications I have determined that they have been dismissed, and a telephone conference will be convened. I consider it would be unfair to Mr McDonald, on account of his six-month absence from work on unpaid leave to essentially be deprived of being able to contest his dismissal in the same manner that Mr Lovini and Mr Jacob can.

• [60] The above circumstances are supportive of an extension of time being granted.

• [61] Taking into consideration the matters I am required to take into account under s.366(2) of the Act, I am satisfied that there are exceptional circumstances in this case. I consider that the circumstances of this case are out of the ordinary course, unusual and uncommon. In the event that it is necessary to consider whether to grant an extension of time to Mr McDonald, I will exercise my discretion to allow an extension of time for the making of the application until 8 October 2025.

The Commission has jurisdiction to convene a conference pursuant to s.368 of the Act to see if the Commission can assist the parties in resolving the matter by way of conciliation.

[1] [2016] FWCFB 5500.

[2] [2011] FWAFB 975.

[3] Smith v Canning Division of General Practice [2009] AIRC 959.

[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[5] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

[6] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36].

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 at [35]- [45].

[8] Ibid; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288.

[9] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]- [33]; and Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[11] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [36].

[12] [2015] FWC 8885 at [29].

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