s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - application made outside of 21-day time limit - no exceptional circumstances - application dismissed.

• [1] On the 14 February 2025, Mr Darcy Dunstan (the Applicant) lodged an application (the Application) pursuant to s 365 of the Fair Work Act 2009 (Cth) (the Act) in which he asserts the termination of his employment on 23 January 2025 by the City of Stonnington (the Respondent) contravened his workplace rights. The Respondent filed its Form F8A response on 3 March 2025. While the Respondent did not raise a jurisdictional objection, a review of the application revealed the Application was made outside the statutory 21-day filing period.

• [2] Following allocation of the matter to my Chambers on 5 March 2025, Directions were issued to the parties for the filing of material in relation to the jurisdictional issue of the Application being out of time. Both parties filed material in advance of the hearing listed for 26 March 2025. I agreed to determine the matters on the papers following a request from the Respondent and consent of the Applicant.

• [3] The Applicant commenced employment with the Respondent on 8 August 2024 on a full-time basis in the role of Compliance Officer. His employment was terminated by the Respondent within his probationary period on 23 January 2025 on the basis he failed to meet inherent requirements of the role. Attached to the Respondent's Form F8A were a number of documents recording communication between the Applicant and Respondent regarding its concerns over his performance during the probationary period and the Applicant's concerns over his treatment in the workplace. The documents included the following;

• 28 November 2024 email from the Applicant's supervisor Pamela Djurdic to her Manager Brad Petryczkowycz detailing a concerning interaction with the Applicant that morning;

• 29 November 2024 email from the Mr Petryczkowycz to the Applicant concerning a meeting held between them on 28 November 2024 on the Applicant's concerns over Ms Djurdic's behaviour towards him;

• 29 November 2025 email response from Applicant to Mr Petryczkowycz regarding his concerns over the conduct of the meeting held on 28 November 2024;

• 9 December 2024 email response from Mr Petryczkowycz to the Applicant's 29 November email in which the Applicant's version of the meeting was disputed;

• 10 December 2024 email from Ms Djurdic to Mr Petryczkowycz detailing further concerns she held over the Applicant's behaviour during discussions on compliance;

• 17 December 2024 email to Applicant from Mr Petryczkowycz detailing concerns over the Applicant's performance. The concerns included illness notification failures, late work attendance and disrespectful conduct. Mr Petryczkowycz expressed serious concerns in the email as to whether the Applicant would be able to successfully complete his probationary period;

• 13 January 2025 email from Ms Djurdic to the Applicant in which she provided a summary of concerns raised in their catch-up meeting on 9 January 2025. Concerns raised included an increase in incomplete CRMS requests, an inappropriate out of office message left by the Applicant on 8 January 2025, the Applicant's failure to issue any Notices to Comply and his not following the right process in seeking to alter his pattern of work; and

• 21 January 2025 email from People and Culture Business Partner Shine Jones to the Applicant recording a meeting held between them that day. The email records a summary of the meeting including an explanation provided by Ms Jones regarding the probationary period process and records concerns raised by the Applicant regarding that process and the lack of an effective induction process as well as the absence of coaching and development.

• [4] In filing material in relation to the jurisdictional objection, the Applicant relied on the following documents;

• Document 1 is an undated screenshot of a Fair Work Commission (Commission) webpage, requesting account verification to log in with multifactorial authentication. The Applicant says he was unable to move past this identity verification stage to lodge the Application within the statutory 21-day filing period;

• Documents 2 and 3 are screenshots of records of the Applicant calling the Commission on 11 February 2025 at 5:48pm for 1 minute (the First Call) and on 13 February 2025 at 10:10am for 9 minutes (the Second Call);

• Document 4 is a screenshot of an email from "Lodgment FWC" dated 14 February 2025, thanking the Applicant for his email;

• Document 5 is a statutory declaration of Kyle Fiddes dated 17 March 2025 to the effect that Mr Fiddes was in the company of the Applicant at 7pm on 13 February 2025 and the Applicant expressed he was experiencing difficulties submitting his application; and

• Document 6 is a screenshot of an email from lodge@fwc.gov.au dated 20 February 2025 confirming receipt of the Applicant's application.

• [5] The Applicant made two telephone calls to the Commission. After my Chambers requested and received consent from the Applicant, recordings of the two phone calls were obtained from the Commission's records and provided to the parties. The First Call was made outside business hours and did not connect to a Commission staff member. The call recording captures the automated message that plays, during which callers are advised that some forms may be lodged on-line.

• [6] The Second Call was connected to a Commission staff member. The Applicant explained his inability to log into his on-line Commission account that he had established approximately two weeks before. The Commission staff member asked for the Applicant's email address to enable her to log an IT ticket. The Commission staff member then asked if the Applicant had an urgent application that he needed to lodge. The Applicant replied "Yeah, I was trying to finish it today, today is the 21st day from the 23rd of last month. I'm going to revert to a pdf copy and send it to the email address that you guys have". The Commission says, "You may need to lodge the form... just to our lodge email".

• [7] Mr Fiddes in his statement gave evidence that he was in the company of the Applicant at 7.00pm on 13 February 2025. He states that the Applicant spoke to him of his difficulties in accessing his on-line Commission account, of not having had a response from the Commission's IT services and his feeling stressed having to download and complete the form at the last minute. Mr Fiddes states he observed the Applicant become very unsettled as he worked through the application form, and became upset, began to cry and was unable to continue with the application. Mr Fiddes further states he helped the Applicant as best he could but that it was clear to him that the Applicant was experiencing a significant amount of anxiety.

• [8] Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute if an application is made under s 365. For an application to be validly made under s 365, it must be made within 21 days after the dismissal took effect or such further period as the Commission allows pursuant to s 366 of the Act.

• [9] The Applicant's dismissal took effect on 23 January 2025. Therefore, the period of 21 days ended at midnight on 13 February 2024 and as the Application was made on 14 February 2024, it was filed one day outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s 366(2) of the Act.

• [10] The Act allows the Commission to extend the period within which a general protections dismissal dispute application can be made only if it is satisfied that there are 'exceptional circumstances.' Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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 can be considered exceptional.[2]

• [11] The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [12] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(b) any action taken by the person to dispute the dismissal;

(c) prejudice to the employer (including prejudice caused by the delay);

(e) fairness as between the person and other persons in a like position.

• [13] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.

• [14] For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 13 February 2025. The delay is the period commencing immediately after that time until 14 February 2025, although circumstances arising prior to that day may be relevant to the reason for the delay.[3]

• [15] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4] An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay.[5]

• [16] I discern from the material filed by the Applicant that he advances three reasons for the Application filing delay. Firstly, that he was unable to access his on-line Commission account to lodge the Application. Secondly, that he did not receive a timely response from the Commission's IT team in relation to his issue of accessing his account. Finally, he was stressed and upset at the process of downloading a paper version of the unfair dismissal application and completing it prior to the expiry of the 21-day deadline.

• [17] Dealing with the first reason, I accept that the Applicant had difficulty accessing his on-line account. That is apparent from the Commission's records of phone calls made to it by the Applicant on 11 and 13 February 2025. The Second Call made reveals the Applicant spoke to a Commission staff member about his inability to access his on-line account and that an IT ticket was logged by the Commission staff member.

• [18] If lodging an application via the Commission's on-line portal was the only means of making a general protections application, the Applicant's inability to access his account might provide an explanation for some of the delay. The on-line portal is not however the only means of lodging an application. That is made clear by the Form F8 page on the Commission's website where it states in part as follows;

"Submit your form by no later than 11:59 pm on the 21st day after your dismissal took effect.

Lodge your form online. To get started click on Apply online , follow the prompts to log in or set up an account. Alternatively email your completed form to lodge@fwc.gov.au.

You can also post or deliver your form to the Commission office near you. In some circumstances you can make an application over the phone."

• [19] While the Applicant may have been unable to access his on-line account on or about 13 February 2025, he had an alternative means of lodging his application of which he was clearly aware. That awareness is evidenced by his conversation with the Commission staff member on 13 February 2025 when he stated he would need to revert to filing a pdf version of the Application by email. The Commission staff member agreed that would be an appropriate path. It is noted that this telephone conversation took place at 10.10am on the 13 February 2025 which left the Applicant sufficient time to file the Application by 11.59pm that evening.

• [20] I also note that during the conversation with the Commission staff member on 13 February 2025, the Applicant confirmed that he had established his on-line Commission account some two weeks prior. No explanation was provided by the Applicant why, having established his on-line account approximately one week after his dismissal, he then delayed completion of the Application until the end of the 21-day period. Leaving completion of the Application until the end of the 21-day period exposed the Applicant to greater risk of the far from exceptional circumstance of IT issues impacting the timely filing of the Application.

• [21] Turning to the second reason advanced by the Applicant, I accept that resolution of the IT ticket dealing with his inability to access his on-line account was not resolved by the Commission prior to the expiry of the 21-day period. That said, the Applicant was clearly aware of the alternative lodgement process on 13 February 2025 and resolved to use that alternative lodgement process as evidence by his emailing the Application to lodge@fwc.gov.au on 14 February 2025. The delayed resolution of the Applicant's inability to access his on-line Commission account did not prevent him filing the Application at an earlier time than he did. It does not provide an acceptable reason for the delay.

• [22] Dealing finally with the Applicant's alleged state of mind on 13 February 2025 which is described by Mr Fiddes as being that of stressed, upset and anxious such that it impacted the Applicant's ability to file the Application on time. This explanation for the delay is rejected for the following reasons. Firstly, the Applicant did not file a witness statement and gave no direct evidence himself on his state of mind at the relevant time. Secondly, Mr Fiddes' evidence was not tested and comprises what is largely hearsay evidence which leads me to accord it little weight. Thirdly, there was no probative evidence adduced, such as medical evidence, that the Applicant's state of mind was such that he was incapable of lodging the Application at an earlier time than he did.

• [23] It follows from the foregoing that the reasons advanced by the Applicant do not provide an acceptable explanation for the filing delay. This weighs against a conclusion that there are exceptional circumstances.

• [24] It is not apparent that the Applicant took any action to contest his dismissal after it took effect on 23 January 2025, other than lodging the Application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

• [25] The Application was filed one day outside of the 21-day period. The Respondent was unable to identify prejudice it would suffer, and I find in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.

• [26] The Act requires me to take into account the merits of the Application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[6] it said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

• [27] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case"[7] for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.

• [28] The Applicant contends that he exercised his workplace right to raise a concern regarding his onboarding and the workplace culture on 15 January 2025. He further submits that he experienced misrepresentation of information, breach of confidentiality, bullying, unfair treatment in relation to a protected attribute and was coerced in order to discourage or prevent him from escalating his concerns. He claims his dismissal was in response to his raising of concerns.

• [29] The Respondent submits that the Applicant's case is entirely lacking in merit in that he was dismissed during his probationary period solely due to issues with his performance and conduct. These concerns included tardiness in work attendance, absence notification failures, incurring unauthorised tolls as well as inappropriate and unprofessional behaviour. As to the Applicant's claim that he had exercised a workplace right, the Respondent submits that the meeting between the Applicant and the Respondent's People and Culture Team on 20 January 2025 focussed on the Applicant seeking clarification regarding the probationary period process and his probationary review. Further, the Respondent submits that the Applicant did not make a formal complaint.

• [30] Having reviewed the limited material before me, it is evident there are disputed facts which would ultimately need to be tested if an extension of time were granted, and the matter were to proceed to trial. It is not possible, however, to make any firm or detailed assessment of the merits. The Applicant has raised an arguable case that is not without merit. The Respondent has raised a prima facie defence. I consider the merits to be a neutral consideration at this stage.

Fairness as between the person and other persons in a similar position

• [31] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.

• [32] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

• [33] Having regard to the matters I am required to take into account under s 366(2) of the Act, and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2) of the Act. Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[6] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[7] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

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