s.365 - General protections

Application to deal with a general protections dismissal dispute - late application - whether extension of time should be allowed

• [1] Mr Curtis McCarron was employed as an Account Executive by Insuranceweb Pty Ltd (Insuranceweb) from 8 July 2024 until 12 March 2025. On 8 April 2025, Mr McCarron applied for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act). Mr McCarron alleges that he was dismissed by Insuranceweb in contravention of the general protections because he exercised a workplace right to take leave and because of his flexible work arrangements. Insuranceweb objects to the application because it is filed out of time. It is not in dispute that the application is 6 days late.

• [2] This decision is about whether additional time can and should be allowed for the application to be made. For the reasons that follow, I am satisfied that there are exceptional circumstances of relevance to the late filing of the application but have decided not to exercise my discretion to allow additional time. The application will be dismissed.

• [3] An application under s.365 of the Act must usually be filed within 21 days of dismissal. The Commission can extend the filing period if there are exceptional circumstances (s.366(1)(b)) after taking into account the following matters set out in s.366(2):

"(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(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."

• [4] These are considered in turn as they relate to Mr McCarron's application.

• [5] Reason for delay: Mr McCarron's evidence is that he has experienced mental health issues since the age of 12. At some point in time, he was prescribed medication, but none of it worked. He saw a psychologist a few years ago and ultimately decided to self-manage his condition. He no longer takes medication and has not seen a psychologist in years.

• [6] No medical evidence has been provided about Mr McCarron's mental health condition. Insuranceweb accepts, based on its experience from an earlier employment relationship between the parties, that Mr McCarron had previously experienced mental health issues. In discussions in July 2024 about a potential return to work for the business, Mr McCarron assured Insuranceweb that he was doing better but could only work 3 days per week. He was asked to obtain medical clearance before commencing employment. He obtained a medical certificate from his general practitioner dated 4 July 2024 certifying Mr McCarron as fit to continue his usual occupation at that time.

• [7] The only other medical certificate provided in support of the extension of time application is also from Mr McCarron's general practitioner. It is dated 17 April 2025, well after the application was filed. As is common with medical certificates, it is light on detail, although it mentions referral to a psychologist. It was sought in the context of this application, and on the basis that it might be helpful. Mr McCarron must have asked the doctor to backdate the medical certificate, because the doctor declined to do so. A mental health plan was proposed for Mr McCarron, but nothing came of it because of the costs involved. On the evidence, Mr McCarron did not seek treatment from any medical practitioner in the weeks after his dismissal, despite the seriousness of his stated incapacity at that time, until 17 April 2025. This seems in tension with Mr McCarron's evidence as to the severity of his symptoms in the 4 weeks after dismissal.

• [8] At the time of dismissal on 12 March 2025, Mr McCarron's father was facing multiple charges of child sexual abuse. The first charges had been laid on 31 January 2025, prompting Mr McCarron to take 2 weeks' leave and return to work on 17 February 2025. On 1 March 2025, he became aware of new child abuse allegations against his father, and on 3 March 2025, further charges were laid. Mr McCarron says this was the reason he was late for work on 3 March 2025, although the reason given to Insuranceweb was the lingering effects of a bucks' party the prior Saturday night.

• [9] Mr McCarron submits that the charges against his father and how this affected his family, together with his unexpected dismissal on 12 March 2025, caused a deterioration in his mental health to the point where he was often unable to get out of bed or undertake normal daily activities, and experienced suicidal thoughts. In short, the primary reason given for the delay is Mr McCarron's poor mental health and related incapacity in the weeks following his dismissal. This weighs in favour of additional time.

• [10] A second reason given for the delay is that Mr McCarron assumed he could not apply to the Commission, or contact lawyers, outside of business hours, and that he was operating on the basis that he needed to engage legal representation. I do not accept these matters as acceptable reasons for delay. Applications for the Commission to deal with a general protections dispute involving dismissal can be made online at any time of day, and legal representation is not required. Many participants in the Commission represent themselves. Forms used to apply to the Commission are expressed in plain English and supported by information on the Commission's website, including detailed information about unfair dismissal and general protections disputes.

• [11] Mr McCarron has not explained why he made such an assumption. It was not soundly based. Further, the website of the lawyer contacted initially (identifiable from messages submitted in evidence) had a mechanism for making contact online but there is no evidence of any enquiry or contact with lawyers before Tuesday, 8 April 2025. In my view, this is because Mr McCarron only decided to proceed with a claim in the Commission on 8 April 2025, when he contacted the lawyer above and was referred to his current representative, Recover Legal.

• [12] Action to dispute the dismissal: On the evening of 3 April 2025, Mr McCarron's mother-in-law sent him a text message saying that he may have an unfair dismissal claim. Mr McCarron replied, saying he would "dive into this" and let her know if he needed any help. He did not do so. At 8.09am on 4 April 2024, his mother-in-law sent him another text message to say that such claims were "time-sensitive". Mr McCarron did some preliminary internet research on Google and then replied at 6.40pm that night to say that he could see there was a 21-day window and would "get started on this now". But again, he did not do so. Having discovered (by searching on Google) that there was a 21-day time limit for unfair dismissal claims, he took no action.

• [13] The first time Mr McCarron took action of a kind that would put Insuranceweb on notice that there was a dispute about the dismissal was 8 April 2025. This was 6 days after the end of the 21-day filing period. Importantly, he took no relevant action from 3 to 7 April 2025 once the 21-day filing period had passed aside from some cursory internet research. He did not even do any preparatory work in anticipation of an application to the Commission, such as compiling documents or summarising his concerns.

• [14] When he finally made contact with a legal representative on 8 April 2025 with the support of his mother-in-law, instructions were given to proceed with a claim. Recover Legal did what it could to obtain sufficient instructions over successive phone calls and emails and filed the application at 34 minutes to midnight on 8 April 2025.

• [15] The lack of action to dispute the dismissal until the day of the application weighs against the grant of additional time.

• [16] Prejudice to the employer: On the materials, I find no relevant prejudice to Insuranceweb if additional time is allowed for the application to be made 6 days late. It is a neutral consideration.

• [17] Merits: The prospects of success in this case depend on the evidence, much of which has not yet been filed. This includes evidence about the reason(s) for dismissal, Mr McCarron's attendance record, conversations relating to his attendance, leave, agreed hours and pattern of work, and compliance with notice and evidence rules for the taking of leave. The reverse onus is relevant but there is insufficient evidence on which to reach any meaningful preliminary view as to the merits. It is a matter that could only be properly assessed at a hearing of the application and weighs neutrally in my consideration.

• [18] Fairness as between Mr McCarron and another person in a like position is not a relevant consideration. Although there may be cases where short filing delays have resulted in a finding of exceptional circumstances and a grant of additional time, each case turns on its own facts and circumstances and must be approached on that basis. This is a neutral consideration in the circumstances.

• [19] I find that there are exceptional circumstances in this case involving the serious charges laid against Mr McCarron's father in January and March 2025, which are likely to have been distressing for him. The more difficult question is how these circumstances contributed to the delay in filing the application. The general nature of the charges had been known to Mr McCarron for almost 6 weeks by the time of dismissal. They were not charges against him personally but against his father. He had taken leave in connection with those issues in February 2025 and returned to work. He had not sought further leave when news of the second charges broke although he was late to work on 3 March 2025. It was almost 4 weeks later that he decided to dispute the dismissal.

• [20] As noted above, there is a lack of medical evidence to support the claim that Mr McCarron was seriously incapacitated during this period, although I am satisfied on the evidence generally that he was experiencing mental health symptoms and this contributed to the delay in filing. This must be weighed against Mr McCarron's lack of any action to dispute the dismissal until after the 21-day period had passed. Perhaps this can be partly explained by concerns about whether he was eligible to apply for unfair dismissal due to his relatively short period of employment, although this was not raised in the hearing. But regardless, the lack of any action to dispute the dismissal and in particular, the 4 days it took to decide to dispute the dismissal after he became aware that such applications were time sensitive, combined with the absence of any medical evidence to demonstrate relevant incapacity are compelling factors weighing against the grant of additional time. The other mandatory considerations weigh neutrally for the reasons above.

• [21] On balance, I have decided not to allow additional time for Mr McCarron to make the application. The result is that the application was not filed within 21 days after the dismissal took effect and was not made in accordance with the Act.

• [22] The application is dismissed under s.587(1)(a) of the Act.

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