s.365 - Application to deal with contraventions involving dismissal

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

[1] Daniel Warren-Smith has made an application under s 365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by his employer 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). Mr Warren-Smith's dismissal occurred on 11 December 2025. Accounting for the 21st day falling on a public holiday, the 21-day period ended on Friday, 2 January 2026 (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 18 February 2026 (47 days late). For the application to proceed, Mr Warren-Smith 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) to (e).

[2] As to the reason for the delay (s 366(2)(a)), Mr Warren-Smith submitted:

"I was dismissed on 11 December 2025. Within a days of dismissal, I lodged an unfair dismissal application as I believed that was the appropriate course of action. I was actively pursuing that claim and responding to correspondence from the Commission in relation to the minimum employment period.

It was only after the Commission raised jurisdictional concerns regarding the minimum employment period that I became aware that an unfair dismissal claim could not proceed. I then sought to understand the correct legal avenue available to me. The delay has arisen because I was pursuing my rights through the unfair dismissal process in good faith and did not understand that a General Protections application was the appropriate mechanism.

Once it became clear that unfair dismissal would not proceed, I acted promptly to prepare this application."

• [3] It is well accepted that ignorance of the existence of a legal right or the timeframe for lodgement associated with that right is not an exceptional circumstance.[1] I reject Mr Warren-Smith's contention his lack of knowledge of the appropriate legal avenue, and his decision to pursue an unfair dismissal application at the first instance, amounts to an exceptional circumstance. I also note that there are publicly available resources, including the Fair Work Commission website, which provide information to assist individuals in understanding their rights and the relevant application processes. Further, I reject Mr Warren-Smith's submissions that the delay was modest. In my view, a delay of 47 days is substantial.

[4] I further note that an applicant cannot simply elect to lodge an application under s 365 of the Act on the basis that they are not eligible to make an application under s 394 due to not meeting the minimum employment period. Applications under s 394 and s 365 are distinct in nature, involve different statutory criteria, and are not alternatives to one another.

[5] Nevertheless, I do not accept that these matters prevented or seriously impeded the possibility of 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.

[6] As to the other mandatory considerations, I have been provided no evidence to suggest that Mr Warren-Smith made any attempts to dispute his dismissal (s 366(2)(b)). This weighs against the granting of an extension. I do not consider there to be any prejudice to the employer associated with the relatively short delay in this case (s 366(2)(c)), nor do I consider that there are any matters that are relevant to fairness between Mr Warren-Smith and other persons in a like position (s 366(2)(e)). I consider these to be neutral factors.

[7] As to the merits (s 366(2)(d)), I do not consider the merits of the present case to tell for or against an extension of time. I regard the merits as a neutral consideration.

[8] 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] Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472 at [23]; Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [14].

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