s.365 - General protections

Application to deal with contraventions involving dismissal - out of time - no exceptional circumstances - application dismissed

[1] Mr Darren Pidgeon (the Applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (the Act) in which he alleges that he was dismissed in contravention of Part 3-1 of the Act.

[2] The Applicant was dismissed effective from 16 December 2025. The application was lodged on 29 January 2026. The application was lodged 23 days outside of the 21-day statutory timeframe prescribed under s.366(1)(a) of the Act. The application can only be accepted if the Commission allows an extension of time, taking into the factors in s.366(2) which I have considered below.

[3] I have determined this matter on the papers on the basis of the Applicant's Form F8. The application has not been served on the Respondent.

Should an extension of time be granted under s.366(2) of the Act?

[4] Section 366 of the Act provides when a further period may be granted to accept a late application.

(1) An application under section 365 must be made:

(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.

[5] There must be exceptional circumstances in order to be granted a further period to lodge this application. In summary, exceptional circumstances are:

• Out of the ordinary course, unusual, special or uncommon. It does not need to be unique, unprecedented or vary rare.

• • It can be 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. [1]

Section 366(2)(a) - Reason for delay

[6] The Applicant has not provided a reason for the delay. He simply says he believes he has a duty of care to his previous colleagues. That explains why he filed the application. It does not explain why he filed the application 23 days out of time.

• [7] The absence of an explanation for the delay weighs against a finding of exceptional circumstances.[2]

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

[8] I find that the Applicant did dispute the dismissal. The day after he was notified of the termination of his employment, he sent an email to HR alleging that he had been dismissed for making a hazard report. The Respondent's HR partner replied promptly apologising for if the Applicant felt undervalued and asking for the Applicant to re-send attachments so HR could investigate his concerns.

[9] This consideration weighs in favour of granting an extension of time.

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

[10] I note the Respondent is a relatively well-resourced employer. I consider that prejudice to the employer is a neutral factor in this matter.

Section 366(2)(d) - Merits of the application

[11] The Applicant claims that he was dismissed for making a hazard report. This aspect of the claim is not devoid of merit. However the Applicant also stated that he was "ignored" by HR. On the evidence me, it seems that HR asked for the Applicant's attachments to his email to be re-sent so that they could investigate. It is not clear that the Applicant ever did this. On balance, I find that this factor is neutral.

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

[12] The Applicant simply argues that he feels he has been ignored by his employer. He states that his union did not want to help him as they believed his case was not strong enough. I am sure the union had cogent reasons to provide that advice and, in any event, the Applicant's feelings of not being listened to do not provide a reason for a finding of exceptional circumstances.

[14] Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. Accordingly, the extension of time is not granted and the application is dismissed.

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

[2] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 at [39]

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