Fair Work Act 2009

s.365 - General protections

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

• [1] Darren Vieira has made an application under s 365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by Procter & Gamble Australia Pty. Limited (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). Mr Vieira's dismissal occurred on 10 December 2024. The 21-day period ended on 31 December 2024. The application was lodged on 16 June 2025. For the application to proceed, Mr Vieira 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 Vieira submitted that at the time of his dismissal it was his understanding, based on the respondent's advice, that issues related to his dismissal were to be addressed through WorkCover channels, and that he was not told about the option of making a general protections claim, which he only learnt about in mid-2025. Mr Vieira further submitted that he had been representing himself in a family law dispute which overwhelmed him, as he has no legal training and limited resources, and that his poor psychological state affected his ability to file his s 365 application on time. I do not consider that the matters referred to by Mr Vieira provide a good or acceptable reason or reasons for the delay. Mr Vieira's assertion that the respondent told him to address his dismissal through 'WorkCover channels' was not particularised and is neither substantiated nor credible. It does not make sense that the company would provide such advice. The respondent denied providing any such advice to him. I accept its denial. In any event, it was Mr Vieira's responsibility to consider his legal options for himself. Further, I do not accept that Mr Vieira's family law matter was a good reason for the delay, nor do I consider that his psychological state or mental health prevented or seriously impeded the timely filing of his claim. The F8 application form is a short, simple form and there is ample information on the Commission's website to assist the general public. In my assessment, there was no good or acceptable reason why Mr Vieira could not have lodged the application within 21 days. This weighs against an extension of time.

• [3] As to the other mandatory considerations, I accept that Mr Vieira took action to dispute the dismissal by engaging in further communications with the respondent (s 366(2)(b)). This weighs marginally in favour of an extension. I do not consider there to be any significant prejudice to the employer (s 366(2)(c)) nor do I consider that there are any matters that are relevant to fairness between Mr Vieira and other persons in a like position (s 366(2)(e)). I consider these to be neutral factors.

• [4] As to the merits (s 366(2)(d)), Mr Vieira contended that he had a strong case because he was dismissed wholly or partly for exercising his workplace right to lodge a WorkCover claim, and because of his temporary illness or injury. The respondent denied that the dismissal was related to these things. It submitted that Mr Vieira's employment was terminated for reason of redundancy and that he was paid a gross severance amount of $61,066.23, as well as $12,724.46 in lieu of notice. The merits of the matter would depend on findings made by a court after hearing the evidence. I will regard the merits as a neutral consideration.

• [5] 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. Consequently, there is no basis for the Commission to extend time. The application is dismissed.

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