s.365 - Application to deal with contraventions involving dismissal

Application alleging contravention of general protections provisions - extension of time - whether exceptional circumstances exist - reason for delay - application dismissed.

• [1] This decision concerns the issue of whether there are 'exceptional circumstances' such that the applicant in this matter, Ms. Willow Dickson (Applicant), should be permitted to proceed with a late application under Part 3-1 of the Fair Work Act 2009 (Cth) (Act). For the reasons below, I have concluded that there are no exceptional circumstances as contemplated by the relevant provisions of the Act. It follows that the application must be dismissed.

• [2] On 1 April 2025 the Applicant filed an application under s.365 of the Act against her previous employer, Franco Holdings Co Pty Ltd (Respondent) alleging that her employment had been terminated by the Respondent in breach of Part 3-1 of the Act.

• [3] Under s.366(1) of the Act, an application of this kind must be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission (Commission) allows under s.366(2). It was not in issue that the Applicant's dismissal took effect on 4 March 2025 and that the application therefore had to be filed on or before 25 March 2025 to be within the statutory time period. It was accepted by the Applicant that the application was out of time by a period of 7 days.

• [4] The Respondent objected to the application on the basis that it was not made within the 21-day time period and maintained that there were no exceptional circumstances to justify an extension of time. The Applicant asserted that exceptional circumstances existed and asked the Commission to extend time.

• [5] Section 366(2) sets out the circumstances in which the Commission may extend time for an application of this kind and the matters which are to be taken into account in determining whether exceptional circumstances exist. It provides:

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

(d) the merits of the application; and

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

• [6] I deal with each of the matters referred to in s.366(2) below.

Section 366(2)(a) - reason for the delay

• [7] The evidence of the Applicant was that she had been informed of her dismissal verbally on 4 March 2025 and later provided with an email on 6 March 2025 outlining that the decision to dismiss was "due to serious misconduct" and was made "following repeated instances of failure to follow reasonable instructions".[1] The Applicant said that this email was received whilst the Applicant was preparing for Cyclone Alfred which followed shortly after the dismissal. The Applicant said that she was away from home when the cyclone occurred and that afterwards she was without power for a period of 4 or 5 days from 7 March 2025. She said she was unable to return home until the week following the cyclone because of the shutdown of the public transport system. The Applicant said that she arranged to be transported back to her place of residence and focused on applying for jobs in order to pay the rent and cover other household necessities.

• [8] The Applicant said it was not until 13 March 2025 that she was able to think about her dismissal and it was on this date that the Applicant said that she contacted the Fair Work Ombudsman (FWO) about her situation. The Applicant claims that she was advised by the FWO to contact her employer about her entitlements and attempt to resolve the dispute prior to lodging an application.

• [9] The Applicant drafted and sent a letter to her employer on 14 March 2025 and received a response on 21 March 2025 refusing the resolution proposed. At this stage the Applicant was preparing for a job interview for a new position. The Applicant submits that by 24 March 2025, she was focused on preparing for her current job which she commenced on 25 March 2025 and was in training for the rest of that week with her new employer whilst trying to manage her pregnancy symptoms, travel commitments and new employment obligations.

• [10] The Applicant submitted that she believed she had 28 days to file her application and hence did so on 1 April 2025.

• [11] In Shaw v ANZ Bank,1 the Full Bench noted that the delay is the period commencing immediately after the 21-day period for lodgement until the date the application was lodged, although circumstances arising prior to that delay may be relevant to the reason for the delay. An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where an applicant has not provided any reason for any part of the delay.2 This is because the reason for delay is a factor forming part of the overall assessment required by s.366(2).3 A credible explanation for the entirety of the delay would weigh more heavily in favour of a finding of exceptional circumstances. Conversely, a failure to provide a credible explanation for any part of the delay would tend to weigh against such a finding.4

• [12] The evidence shows that the Applicant was facing challenging circumstances immediately following the termination of her employment. As well as losing her job, the Applicant was preoccupied with preparations for Cyclone Alfred. The Applicant was stranded away from home and without power for a period of 4 or 5 days. This would have undoubtedly had an impact on the Applicant's capacity to deal with other matters, including the preparation and filing of an application of this kind. The evidence as to the Applicant's situation as a result of the preparations for and aftermath of Cyclone Alfred shows that she was unable or at least severely restricted in her capacity to progress the application for 5 to 6 days prior to the commencement of the period of the delay, but it does not explain the 7-day period of the delay.

• [13] Furthermore, it is not uncommon for employees to experience some financial hardship or difficulty following the termination of employment. It is also commonplace for employees to spend some time in the period immediately after termination seeking alternative employment. The Applicant provided documentary evidence demonstrating that she was very actively seeking alternative employment in the period following her dismissal. This would account for some part of the Applicant's time after the termination. The fact that the Applicant obtained alternative employment on 25 March would have also made demands on her time. However, this does not mean that the Applicant did not have had time available to consider and attend to the filing of an application.

• [14] A lack of knowledge or misunderstanding of the limitation period is also commonplace. This provides little assistance to the Applicant in explaining the delay.

• [15] The problems described by the Applicant were undoubtedly a cause for concern for the Applicant but do not provide a reasonable explanation to account for the delay in filing an application within the time period. In my view the reasons for the delay provided by the Applicant do not weigh in favour of a conclusion that there are exceptional circumstances.

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

• [16] The Applicant wrote to the Respondent on 14 March 2025 seeking clarification as to her annual leave and personal leave entitlements and disputing that the reasons provided for her dismissal in the email of 6 March constituted serious misconduct. The Respondent replied on 21 March 2025 with a chronology of the last few weeks of the Applicant's employment and a summary of the events.

• [17] The Applicant contacted the Respondent in relation to her dismissal before the time period had expired. The Applicant did not put the Respondent on notice that the dismissal was disputed on the basis of possible breaches of the general protections provisions or that proceedings in the Commission might follow. Nonetheless the letter did actively dispute the reasons given for the termination by reference to the Applicant's contract as not constituting serious misconduct. In those circumstances the Applicant asked to be paid for one week in lieu of notice to resolve the matter. This weighs in the Applicant's favour in the assessment of exceptional circumstances.

Sub sections 366(2)(c) - Prejudice to the employer

• [18] There was no evidence about prejudice to the Respondent, including prejudice caused by the delay. I am unable to conclude that such prejudice exists here. This is a neutral consideration in the assessment.

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

• [19] As to the merits of the application, the Applicant has asserted a contravention in the application which the Respondent denies. The Applicant says that she was terminated for reasons related to her pregnancy. The Respondent contended that the Applicant was terminated solely for reasons related to repeated instances of failure to follow reasonable instructions including failure to notify the Applicant's supervisor when running behind schedule, persistent lateness to work, reporting to work unwell or unfit to perform duties and the inability to complete assigned responsibilities as required.

• [20] It is not generally appropriate for the Commission to resolve all contested issues of fact going to the ultimate merits, for the purposes of taking account of the matter in s.366(2)(d).[2] The determination of these issues would require a full hearing on the evidence should the matter proceed. On the material available, I am unable to come to a firm view as to the merits. I regard the merits of the application as a neutral consideration in the overall assessment.

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

• [21] There was no evidence about fairness considerations as between the Applicant and other persons in a like position. This is a neutral factor here.

• [22] In circumstances such as these, the Applicant must satisfy the Commission that there are exceptional circumstances which warrant the Commission exercising its discretion in favour of granting an extension of time.

• [23] 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. 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.[3]

• [24] Having taken into account the matters set out above, I am not satisfied that there are exceptional circumstances in this case. Accordingly, there is no basis for an extension of time.

By video using Microsoft Teams at 2:00pm AEST on Thursday, 22 May 2025.

[2] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

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