s.365 - General protections

Application to deal with contraventions involving dismissal - extension of time - application dismissed.

[1] Ms Dianne Lawrence (Applicant) has made an application under s.365 of the Fair Work Act 2009 (Act) in which she alleges that she was dismissed in contravention of Part 3-1 of the Act. S.366(1)(a) of the Act requires such applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s.366(1)(b). The Applicant said that the dismissal took effect in on 6 January 2026. The 21-day period therefore ended on 27 January 2026. The application was lodged on 1 February 2026, 5 days out of time. In order for the application to proceed, the Applicant requires an extension of time. The Commission may only extend time of it is satisfied that there are 'exceptional circumstances', taking into account the matters in s.366(2)(a)-(f).

[2] As to the reason for delay (s 366(2)(a)), the Applicant said that she was advised by her colleagues that she exceeded the salary threshold to make an application, and that she found this not to be the case when she researched the Fair Work Commission's website. She further submits that she was offered employment and that the new employer suggested she not pursue any legal action against her previous employer. This is not an acceptable or reasonable explanation for the Applicant's delay in filing his claim of contraventions involving the General Protections provisions of the Act. The Applicant has not provided a reasonable explanation for the delay in filing her claim of contraventions involving the General Protections provisions of the Act. The Applicant could have lodged her application within time. The reason for the delay weighs against an extension of time.

[3] As to the matters in ss.366(2)(b), (c) and (e), I note the following. The Applicant claims she was forced to resign, advising the employer that she was not satisfied with the employment relationship. I accept that the Applicant took some action to dispute her dismissal by contacting the Respondent about her dismissal (s.366(2)(b)). This weighs moderately in favour of an extension. There is no prejudice to the employer (s.366(2)(c)). I consider this to be a neutral factor. In my view, there are no matters that are relevant to the question of fairness between the Applicant and other people in a similar position (s.366(2)(e)).

[4] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested, but the merits (s.366(2)(d)) are nonetheless a factor that I am required to take into account in assessing whether there are exceptional circumstances.

[5] The Applicant submitted that the employer engaged in several breaches of the contract of employment. Namely, they changed her role unilaterally, was excluded from management meetings and communications, her performance indicators that determined her remuneration were altered and she was repeatedly contacted and directed while on a period of approved leave.

[6] The merits of the application turn on points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. I consider this a neutral consideration. The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking into account the matters in s.366(2) of the Act, I am not satisfied that there are exceptional circumstances in this case. Consequently, there is no basis for the Commission to extend time.

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