s.365 - General protections

Mooloolaba Surf Life Saving Supporters Club Inc

Application made under s.365 - extension of time - application dismissed

• [1] Mr Dan Brunskill (Applicant) has made an application under s.365 of the Fair Work Act 2009 (Cth) (Act) in which he alleges that he was dismissed by Mooloolaba Surf Life Saving Supporters Club Inc (Surf Club/Respondent) in contravention of Part 3-1 of the Act. Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).

• [2] Mr Brunskill's dismissal occurred on 6 April 2024. The 21-day period ended on Saturday, 27 April 2024. Mr Brunskill ought to have filed his application by no later than Monday, 29 April 2024 (see s.40A of the Act, and s.36 of the Acts Interpretation Act 1901 as in force on 25 June 2009). The application was lodged on 19 August 2025, 477 days late. For the application to proceed, Mr Brunskill requires an extension of time. The Commission may allow a further period only if it is satisfied that there are "exceptional circumstances", taking into account the matters in s.366(2)(a)-(e).

• [3] As to the reason for the delay (s.366(2)(a)), Mr Brunskill said that, during the delay period, he was attempting to clarify the reasons for his dismissal; however, the correspondence he provided in support of this assertion post-dates the 21-day deadline and only explains a delay of a short duration.[1]

• [4] Further, in reply to the Respondent's material, Mr Brunskill alleged he was experiencing homelessness, PTSD and health issues which took priority. There was no evidence before the Commission to support the assertions that these issues were germane to any significant period of the 477-day delay. In addition, Mr Brunskill provided a mental health treatment plan dated 4 September 2023 that was to operate for a period of three to four months. However, the plan operated for a period that predates the actual dismissal.

• [5] Mr Brunskill also provided what appears to be a scan of a printout that shows the Applicant visited a doctor for the condition of gout on 14 September 2023.[2] Like the mental health plan, this visit predates the dismissal.

• [6] Other evidence was provided from after the dismissal, such as a copy of a medical prescription dated 9 December 2024[3] and what appears to be a printout of patient history from a pharmacy dated 2 September 2025 showing that some medication was dispensed to the Applicant on 14 September 2023.[4] There is nothing before me as to how these incidents, or a condition of gout for which there is no medical opinion or specific information before me, created an impairment that prevented the lodgement of this application, nor is there anything before me which explains the lengthy delay.

• [7] Overall, I do not accept that Mr Brunskill's evidence explains any significant period of the long delay nor demonstrates any impairment that would have prevented Mr Brunskill from lodging his application. I reject Mr Brunskill's suggestion that the 477-day delay was a consequence of the issues claimed.

• [8] Further, on his own evidence, during the period of the delay, Mr Brunskill demonstrated he was capable of dealing with a range of somewhat complex administrative duties during the period of delay. For example, Mr Brunskill:

• on 22 May 2024, emailed a letter of concern to the President of the Surf Club;
• on 11 July 2025, emailed a formal letter seeking clarification regarding his dismissal;
• on 21 July 2025, emailed a second formal request for clarification regarding his dismissal;
• on 29 July 2025, served an "official final notice" letter at the reception of the Surf Club;
• on 29 July 2025, emailed this final notice; and

• • on 7 August 2025, following the Surf Club's reply to this final notice, emailed a formal response.[5]

• [9] On this basis, I do not accept that the reasons given prevented or seriously impeded the timely lodgement of the F8 application form. In my assessment, the reasons for delay weigh against a conclusion that there are exceptional circumstances in this case.

• [10] Mr Brunskill stated that he was made aware of his dismissal on 6 April 2024. I find that this is a neutral consideration pursuant to s.366(2)(b).

• [11] As to the other mandatory considerations, I accept that Mr Brunskill took other action to dispute the dismissal in that he made a number of attempts to contact his employer to clarify the reasons for his termination and did not receive any response (albeit the first of these attempts occurred after the 21-day timeframe within which this claim should have been made) (s.366(2)(b)). For example, Mr Brunskill provided copies of correspondence that was sent to the Respondent raising concerns and seeking clarification regarding his dismissal. This correspondence is dated 22 May 2024, 11 July 2025 and 21 July 2025.[6] This correspondence was itself also sent after the 21-day deadline for filing this application. I consider in all the circumstances, noting the dates and lengthy delay, that these actions weigh only slightly in favour of an extension being granted.

• [12] Mr Brunskill contended there is minimal prejudice to the employer. I consider there is a slight prejudice to the employer associated with the lengthy delay in this case, which weighs slightly against the granting of an extension (s.366(2)(c)).

• [13] I do not consider that there are any matters that are relevant to fairness between Mr Brunskill and other persons in a like position (s.366(2)(e)). I consider this to be a neutral factor.

• [14] As to the merits (s.366(2)(d)), Mr Brunskill contended that he was dismissed as a consequence of raising a workplace complaint. I consider that Mr Brunskill may have an arguable case; however, a more detailed assessment would be required. The merits of the matter would also depend on findings made by a court after hearing the evidence. I regard the merits as a neutral consideration.

• [15] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s.366(2), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is dismissed.

[1] Digital Court Book (DCB) pp.84-89.

[4] Ibid p.29. See also ibid pp. 104-110.

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