s.365 - General protections

Application to deal with contraventions involving dismissal - application out of time - circumstances not exceptional - application dismissed

• [1] This decision concerns an application by Mr Douglas Worrall (Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (GP Application).

• [2] The Applicant states that his employment with Qantas Airways Ltd (Qantas) was terminated with effect from 27 May 2025. The GP Application was lodged on 7 October 2025.

• [3] Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s.366(2). The period of 21 days ended at midnight on 17 June 2025. Therefore, the GP Application was lodged 112 days outside the 21-day period. The Applicant asks the Commission to allow a further period for the GP Application to be made.

• [4] The matter was heard on 9 December 2025. I exercised my discretion to grant permission to Qantas to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was self-represented. Qantas was represented by Mr D Ward of counsel.

• [5] For the reasons that follow, the GP Application is dismissed as there is no basis to allow an extension of time under s.366(2).

• [6] The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute must 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]

• [7] 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.

• [8] 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 similar position.

• [9] 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.

• [10] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[3]

• [11] I now consider these matters in the context of the GP Application.

• [12] The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. 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 an applicant's favour, however all of the circumstances must be considered.[4]

• [13] On 17 June 2025, the Applicant made an application for an unfair dismissal remedy (UFD Application).

• [14] On 3 October 2025, the Applicant discontinued the UFD Application. The Applicant advised the Commission and Qantas that "[B]ased on new evidence received after I submitted that UD application I am discontinuing the UD and instead submitting a General Protections Dismissal application correspondence." (Emphasis in original)

• [15] On 7 October 2025, the Applicant lodged the GP Application. As noted earlier, the GP Application was lodged 112 days after the Applicant's dismissal took effect. Question 1.4 of the GP Application seeks an explanation for the delay. The Applicant provided a 9-page response to question 1.4, which relevantly states:

I have discontinued my unfair dismissal (UD) application U2025/10310 in order to pursue the matter via a General Protection Dismissal (GPD) application which, based on newly obtained evidence received since making that UD application, reveals adverse actions and discrimination following me exercising workplace rights in 2022 which injured me (psychological injury), and via a range of Qantas actions to protect the perpetrators and ensure that recovery was impossible and thus that my aviation medical certificate would be revoked, led inevitably led to my termination in 2025.

This new evidence, being some rather careless statutory declarations by Qantas managers that they perhaps thought I would never see (and indeed which Qantas refused my requests to obtain at the time, only providing it after I was dismissed) demonstrates that a decision was made nearly 3 years ago to get rid of me and that Qantas fully participated in ensuring that this was the end result.

...[T]he reason for the delay was recently received evidence which I had been previously denied a copy of by the respondent and which was only recently provided. This critical evidence which could, had it been provided to me 2 years ago, allowed the actual issues at play to be addressed, critically changes the understanding of the matter and explains the entire course of adverse actions by the respondent, from the initial injurious misconducts through all of the respondent's subsequent subterfuges to avoid investigations, protect the perpetrators and silence me. The general protections approach to addressing the problem did not have the level of evidence it needed prior, but now it does.

I was timely following my 27/5/2025 termination without notice, with an Unfair Dismissal application submitted on 17/6/2025 (21 days, U2025/10310). UD seemed the most appropriate prior to the revelation of the new evidence.

The recent evidence which has come to hand since I made my UD application U2025/10310, being the statutory declarations of three Qantas managers as made to a Qantas workers compensation factual investigation in March 2023 but not provided to me until very recently, has made what was a quite complicated picture actually very simple. It illuminates motive and every subsequent action of the respondent comes into focus with that understanding.

15. However, with the newly available evidence of the 2023 Le Marquand statutory declaration, with its many provable lies, defamations and discriminations, in conjunction of David Nelson's demonstration of the 100% reliance placed by the respondent on the words of Le Marquand over my own without any question whatsoever even though he was the primary alleged perpetrator, changes the field significantly.

16. Where hard evidence was lacking, it now appears that sufficient evidence exists (or can be assumed on the basis of probability) the injury inflicted upon me by John Le Marquand in November 2022 and the subsequent protection of him from investigation and disciplinary action thus ensuring further injury, the cancellation of my aviation medical, and my ultimate termination... were all intended acts.

• [16] In his written submissions, the Applicant stated:

13. When I initially made the UD application I had discounted the GPD path because I had already seen the Respondent's response to my earlier GD application C2024/1083, prior to dismissal ("Qantas has done nothing wrong, ever" or words to that effect, from their head IR lawyer). There simply didn't seem to be sufficient proof to shake them out of this mode of unsupported self-exonerating statements. The recently obtained Surefact statements changed that belief by providing a clear picture of the mind of the Respondent for the entire period from the initial injury of November 2022 through to my eventual termination 2.5 years later.

17. I thus considered the implications and the risk of discontinuing UD with no guarantee of GPD being accepted, but the newly received evidence which placed the entire picture in focus and so clearly showed the matter to be a matter of motive and ill-intent... General Protections Dismissal was clearly the logical and best fitting path.

20. In contrast to that erroneous logic, I maintain that it can indeed be said that the Surefact statement of John Le Marquand "brings to light a general protections claim." I maintain that the careless or callous character assassination by Le Marquand's lies, defamations and discrimination gives an unusually honest insight into the state of mind of the Respondent.

The "newly discovered evidence" thus provides the context necessary to understand all of the Respondent's decisions during the subsequent cover-up, avoidance of investigations, silencing etc. which preceded my termination. Ms James (my former manager) appears to have gone to some lengths to remain ignorant of the real issues at play. Unfortunately, my ability to inform her of the facts was restricted by the broad confidentiality gag orders the Respondent had placed upon me to prevent discussion with all Qantas employees (including Ms James). She knew this, made some initial enquiries and then was warned off by Case Management's Megan Brill (as is my understanding).

• [17] During the proceedings, the Applicant confirmed that the only reason for the delay was the 'newly obtained evidence" he received on or about 14 August 2025. Although the Applicant refers to having received three statements, only one statement was in evidence before me, being a statement made by Mr John Le Marquand which is dated 21 March 2023 (Le Marquand Statement). The Le Marquand Statement was made in relation to a workers compensation claim made by the Applicant. The Applicant identified paragraphs [39], [40], and [45] of the Le Marquand Statement as the 'newly obtained evidence' which relate to events that occurred in November 2022. Those paragraphs state:

1. I spoke to Doug about his requests to FTS and provided answers to his questions (he wanted to know the sim instructor had changed). I told Doug that his communication was inappropriate and the way he spoke to the FTS was unacceptable. Doug wanted to know why a certain instructor had been appointed and stated that he was concerned he was being targeted by Flight Training I explained that the instructor change was actually to a lower grade of Check Pilot and that his concerns about being "set up" were concerning. Some pilots are required to have their assessment done by nominated Check Pilots for performance monitoring; I explained that Doug is not on that list. The trainer was selected by the Scheduling staff and changed due to operational requirements. Doug demanded that he needed to be told by FTS of why the change was made. This request was escalated to me by FTS.

1. Doug made comments that he did not trust the Flight Training department. There are various levels of instructors within QANTAS. FTS lowered the level (qualification) of instructor in this change, so there was no "targeting" or increased scrutiny of Doug intended. FTS was upset by Doug's comments and I was concerned that a Qantas pilot was so insecure about his recurrent training.

1. The Claimant's injury has come from where he failed a Commander's course back in 2007 or 2008. Management dealt with this. Doug told me at the time, it made him a mess and he has an issue with Flight Training. Doug does not accept most trainers and we have to adjust the rostering of trainers to suit him. The Claimant may have perceived injustice and appears to feel that people in Flight Training will do the wrong thing by him such as update a training schedule, change a sim content or unfairly assess him. There is a victim mentally there.

• [18] The Applicant takes issue with Mr Le Marquand's account of the telephone discussion and the basis for that discussion which Mr Le Marquand describes at paragraph [39] of the Le Marquand statement. The Applicant also takes issue with Mr Le Marquand's opinion that the Applicant was insecure about recurrent training and that the Applicant has a victim mentality.

• [19] The events referred to in the Le Marquand Statement were the subject of a complaint by the Applicant and reviewed by Captain Nelson, the Chief Pilot and Head of Flying Operations for Sunstate Airlines (QLD) Pty Limited (Nelson Review). The Nelson Review was undertaken in relation to a complaint made by the Applicant on 2 January 2023 that is referred to as Intelex Report (437901) and was set out as follows:

Detailed Description: Injury: adjustment disorder with anxious mood Text: Reactivation of prior psychological injury caused by a harassing phonecall (20/11/22) from Airbus DMT John Le Marquand, combined with victimising sim roster enacted by A330 DMT Steve Thomas (23/9/22), inadequate resolution of prior bullying events and lack of the flight training department support required by DAME, psychologist and CASA following the April 2022 bullying event.

• [20] The outcome of the Nelson Review was communicated to the Applicant on 10 February 2025, over three months prior to his dismissal. The Nelson Review responded to the Applicant's concerns about his telephone discussion with Mr Le Marquand in November 2022, as well as the rostering change for the simulator session. In relation to the telephone discussion with Mr Le Marquand, Captain Nelson stated:

1. Phone call from John Le Marquand on 20 November 2022

In the Intelex Report you reported that you received a "harassing phonecall" from John Le Marquand (then Manager Training and Checking - Airbus) (John) on 20 November 2022 and in documents provided to me, you have outlined your account of that phone call.

Based on my inquiries, I understand that John contacted you after concerns were raised by Flight Training Scheduling. The concerns related to a call you had made to Flight Training Scheduling on or around 7 November 2022 seeking information following a late notice change of personnel assigned to be the instructors for your upcoming cyclic sessions. I understand that John contacted you to provide a response to your query and to provide you with feedback in relation to your call to Flight Training Scheduling, including that the employee you had spoken with had been offended by your call. I understand that during the call with you, John also expressed concern that you continued to express distrust in Flight Training Scheduling and Flight Training Management.

As above, in the Intelex Report you have described the call with John as "harassing" but you did not provide any further details in that report of the call or why you had characterised it in this way. In the documents provided to me which outline your version of the call, you have provided limited particulars regarding John's tone, manner or style. Based on the information available to me, including your own description of the call, I have found no evidence that John's call to you was harassing in nature or that he otherwise acted inappropriately towards you during that call. Accordingly, while I accept that the content of the call may have been uncomfortable, I am satisfied that John's conduct was reasonable management action taken in a reasonable manner.

• [21] In his materials, the Applicant referred to the Nelson Review as follows:

10. Le Marquand's lies, defamations and fabricated misconduct allegations about me revealed by the Nelson review in 2025 were the first I had ever heard of them. These fabrications included the a statement that I had made an abusive phone call to the FTS (Flight Training Scheduling) department (I had not), that I had expressed distrust in them (I had not), and that Le Marquand's in his phone call of 20/11/2022 informed me of FTS's supposed complaint of abusive contact and rebuke me for it (he did not). In fact he had no legitimate reason for making that phone call and these later fabrications show a manufactured story after the fact to justify his own harmful phone call to me (which, unlike that supposed call be me to FTS, actually did occur).[5]

1. In contrast to that erroneous logic, I maintain that it can indeed be said that the Surefact statement of John Le Marquand "brings to light a general protections claim." I maintain that the careless or callous character assassination by Le Marquand's lies, defamations and discrimination gives an unusually honest insight into the state of mind of the Respondent.

This was demonstrated by Mr Le Marquand (a high ranking manager of the Respondent) in March 2023, and endorsed on Qantas letterhead by the Nelson Review in February 2025. That flawed report was written by QantasLink Chief Pilot David Nelson in response to a request from Qantas IR Lawyer Rania Jones, both of whom are high ranking employees of the Respondent. It is a reasonable assumption that Le Marquand's ill-intended views, articulated in both the Surefact and Nelson reports, articulated the state of mind of the Respondent during the entire period between my injury in November 2022 and my dismissal in 2025.[6]

The total adoption by the Respondent of Mr Le Marquand's views in preference to my own in the February 2025 Nelson Review show that these views held considerable sway, and the actions and inactions of the Respondent in that period are consistent with that state of mind existing throughout. The newly obtained Surefact statement of Mr Le Marquand thus greatly illuminated understanding of the entire matter.[7]

• [22] There is nothing in the impugned paragraphs of the Le Marquand Statement that is evidence of Qantas deciding to dismiss the Applicant in November 2022, or that critically changes the matters in dispute between the Applicant and Qantas. Nor do the impugned paragraphs reveal a basis for unlawful adverse action or discriminatory action allegedly taken against the Applicant in relation to the exercise of workplace rights by him in 2022 that was not known to the Applicant prior to 14 August 2025. From at least 10 February 2025, the Applicant was aware that Mr Le Marquand had a different account of the telephone discussion that occurred between them on 20 November 2022, and that Mr Le Marquand initiated that telephone call because of a report made to him by Flight Training Scheduling.

• [23] In my view, the Applicant simply reconsidered his position and decided to withdraw the UFD Application and lodge the GP Application because he considered it the "better fit". There is nothing unusual about an applicant choosing to challenge their dismissal by first filing an unfair dismissal application before withdrawing it and filing a general protections application instead.[8] Accordingly, I do not consider the Applicant has an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

• [24] Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[9]

• [25] In Hunter Valley Developments Pty Ltd v Cohen[10], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[11]

• [26] Having regard to the material before, I am satisfied that the Applicant took action to dispute the dismissal and put Qantas on notice that the dismissal is contested by lodging the UFD Application. This factor weighs in favour of a conclusion that there are exceptional circumstances.

• [27] Qantas submitted that it would be prejudiced if an extension of time was granted because the Applicant has raised a range of matters that have no legal or other bearing upon the termination of his employment, and it would be required to respond to those matters.

• [28] I am not satisfied that Qantas has demonstrated that it would suffer actual prejudice if an extension of time is granted. The matters raised in the GP Application largely reflect the matters raised in the UFD Application and if the GP Application proceeds to a final hearing, the matters raised and any evidence adduced in support those matters will need to be relevant to the issues for determination.

• [29] In relation to a presumption of prejudice, it is well accepted that a lengthy delay gives rise to a general presumption of prejudice.[12] In the context of a general protections application, a 112-day delay can only be described as lengthy. If the Applicant had not made the UFD Application, I would have found the length of delay as giving rise to a relevant prejudice. However, the making of the UFD Application militates against any presumption of prejudice.

• [30] Accordingly, I cannot identify any prejudice that would accrue to Qantas if an extension of time were to be granted. Despite that, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.

• [31] The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials.

• [32] The letter of termination states that the Applicant was dismissed because he could not perform the inherent requirements of the role of a commercial pilot after the Civil Aviation Safety Authority (CASA) refused to renew the Applicant's Class 1 medical certificate.

• [33] The Applicant contends that the dismissal was in contravention of Part 3-1 of the FW Act because there was an initial instance of adverse action and discrimination in April 2022, followed by a second instance in November 2022. The Applicant contends these matters resulted in him being unfit for work and ultimately lead to the CASA refusing to renew his Class 1 medical certificate, which is a requirement to perform the role of a commercial pilot.

• [34] The Applicant referred to this in his submissions as "causational logic" in that the initiating event results in outcome 1, which in turn results in outcome 2 and so on.

• [35] Qantas denies that it took unlawful adverse action against the Applicant. Qantas contends that the decision maker, Ms Melissa James made her decision based on the Applicant having no capacity to work following the decision of CASA to refuse to renew the Applicant's Class 1 medical certificate. In a witness statement, Ms James stated that she was not aware of the Le Marquand Statement or the other statements the Applicant referred to, and they played no part in her decision to dismiss the Applicant.

• [36] Qantas cited the decision of the High Court of Australia in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd[13] and submitted that the provisions of Part 3-1 require a determination of fact as to the reasons which motivated the person who took the adverse action, and do not direct the court to inquire whether the dismissal was connected to the industrial activities protected by the FW Act. In other words, there is a distinction between the operative or immediate reason for taking the adverse action as against a merely contributing factor or factors for undertaking such conduct.[14]

• [37] Based on the material before me, in particular the witness statement of Ms James, and the relevant authorities as to the operative and immediate reason for taking the adverse action, I do not consider the merits of the GP Application to be strong. Accordingly, I find that this factor does not weigh in favour of a finding that there are exceptional circumstances.

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

• [38] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [39] The test of 'exceptional circumstances' establishes a 'high hurdle'. Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.

• [40] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time under s.366(2).

• [41] The Application is dismissed. An Order to that effect will be issued with this decision.

D. Ward of counsel with A. Motbey, Solicitor for the Respondent.

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

[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

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

[5] Paragraph 10 in response to question 1.4 of the GP Application.

[6] Paragraph 20 of the Applicant's Submissions in Reply.

[7] Paragraph 22 of the Applicant's Submissions in Reply.

[8] GHD Pty Ltd T/A GHD v Kevin Alan Black [2023] FWCFB 38 at [10], [46], [77]-[78].

[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[10] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.

[12] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 556_; Brodie-Hanns v MTV Publishing Ltd_ (1995) 67 IR 298 at 299-300; GHD Pty Ltd T/A GHD v Kevin Alan Black [2023] FWCFB 38 at [51]; Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 at [85]- [86].

[13] [2014] HCA 41 at [19].

[14] Qantas Airways Limited v Transport Workers' Union of Australia [2023] HCA 27 at [102] (per Steward J).

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