s.365 - General protections

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - extension of time denied.

• [1] On 26 August 2025,[1] Mr Ersan Suvar lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against The Trustee for IWG Business Trust (IWG or the Respondent). Mr Suvar commenced employment on 5 May 2025, and his dismissal took effect on 1 August 2025.

• [2] Mr Suvar was employed subject to a probationary period of employment in the position of Contract Administrator.

• [3] Section 366(1) of the Act requires an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. The application was lodged 4 days after the 21-day statutory time limit.

• [4] Mr Suvar submits that his dismissal is a contravention of s.340 a workplace rights because he made a complaint about alleged building compliance following review of a contractor's roof package which excluded insulation_._ He submits that it was after this complaint that he was dismissed.

• [5] Mr Suvar submits that he filed an unfair dismissal application on 21 August (within the statutory 21 days) and on being contacted by the Commission on 26 August 2025, he promptly filed this application albeit late. The Commission records show that the unfair dismissal application was filed,[2] and the Applicant was informed that he did not meet the minimum employment period for the unfair dismissal application. It was following receipt of this information that the Applicant discontinued the unfair dismissal and filed a general protections application.

• [6] During the hearing it was apparent that Mr Suvar was aware that his application was late and unaware that a 21-day time limit applied to general protections applications.

• [7] Mr Suvar is not seeking reinstatement but compensation for lost income, distress and psychological pressure because of the dismissal, noting that the Respondent was allegedly aware of his fragile mental state following his divorce.

• [8] The Respondent submits that it is a small business building warehouses in the Melbourne area and employed the Applicant on 5 May 2025 subject to a six-month probation period. Mr Suvar's role reported to the Construction Manager and was responsible for compliance and obtaining quotes from the regularly utilised contractors for work to be performed. These quotes were expected to be passed on to the project manager for consideration. The Respondent submits that during the probation period Mr Suvar acted outside his authority by negotiating pricing with sub-contractors, getting "bogged down" in background reference reports intended for planning purposes, directing sub-contractors to sites, refusing to take instruction and behaving unacceptably, upsetting both staff and sub-contractors.

• [9] The letter of termination tendered into evidence by both parties dated 1 August 2025 confirms that the Respondent had determined not to continue the Applicant's employment during probation for the reasons that he did not "possess the relevant skills and attributes it was looking for in a Contract Administrator."

• [10] In relation to the alleged contravention of s.340 of the Act, the Respondent denies any contravention of a workplace right.

• [11] The Respondent submits it is a small business of 9 employees and challenged the application on the basis that it was out of time.[3]

• [12] Mr Frank McMullen, Construction Manager submitted a witness statement and appeared for the Respondent.

• [13] General protections applications involving dismissal must be made within 21 days.

• [14] However, s.366(2) of the Act permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

• [15] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[4] where it was held that:

"To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a regular occurrence, even though it can be a on off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."[5]

• [16] I now turn to the Applicant's arguments for an extension of time in relation to each of the considerations of s.366(2)(a)-(e).

• [17] The general protections involving dismissal application was lodged with the Commission on 26 August 2025, 4 days late. Mr Suvar was aware that the dismissal took effect on 1 August 2025.

• [18] Mr Suvar submits that the reason for the delay is because he inadvertently filed an unfair dismissal application and the Commission failed to inform him of the correct form within the required time frame.[6] I observe that Mr Suvar filed this application after being informed that he did not meet the minimum employment period to qualify for the unfair dismissal jurisdiction.

• [19] There must be a credible reason for the delay.[7] In the absence of any plausible, sound or reliable reasons given, this consideration cannot weigh in favour of this extension of time application.

• [20] I do not accept that Mr Suvar's explanation for the delay weighs in favour of an extension of time. Both applications filed (unfair and general protections) were filed online which requires access to the forms having found the relevant information in relation to the jurisdiction. The unfair dismissal jurisdiction information of the Commission's website is clear that a minimum employment period must be met. Even though Mr Suvar indicated commencement and termination date[8] (a period of no more than 4 months) which clearly fails to meet the minimum employment period of even a large business[9] having indicated the size of business as 15-49 employees. Both sections of the Commission's website clearly identify the 21 day time limit for filing of applications.

• [21] Mr Suvar's Form F8 provides and explanation for the delay as:

"I originally lodged an Unfair Dismissal application (Form F2) within the 21-day period (reference number: L007362). After lodging, the Fair Work Commission contacted me and advised that my matter was more properly a General Protections - Dismissal application, not Unfair Dismissal.

This advice was received only after the 21-day period had expired. The delay in lodging this F8 was therefore not due to inaction or neglect on my part, but simply because I acted in good faith on the understanding that I had already made the correct application.

The delay is minimal (a matter of days), I acted promptly throughout, and no prejudice will be caused to the respondent by allowing this application to proceed. By contrast, I would suffer significant prejudice if the application were not accepted. I therefore respectfully request the Commission accept this application out of time under the "exceptional circumstances" provisions."

• [22] Mr Suvar contends during the hearing that the wrong form was simply an administrative error and criticises the Fair Work Commission for failing to inform him of his "administrative error." The responsibility of filing a correct application sits with the Applicant. Mr Suvar did not concede any responsibility and contends that he filed the correct application when he filed the unfair dismissal application. On his assessment of his grievance an unfair dismissal application is better suited except for the fact that he did not meet the eligibility criteria. A general protections application does not concern fairness of the dismissal. Mr Suvar's allegations of contravention of a workplace right are not captured by the protections under s.340 of the Act. More on this point is discussed under merit.

• [23] Mr Suvar tendered into evidence a psychologist report dated 9 September 2025.[10] The report states that Mr Suvar suffers from depression and this affects his ability to sustain employment and comply with procedural requirements. The report further provides particulars of functional impairments. While I accept this advice that Mr Suvar had such a condition, the fact remains that the application made on time was an unfair dismissal application for which he was ineligible and the general protections application lacks merit. The report fails to adequately explain the capacity to file two applications and pursue an extension of time sufficiently to weigh in favour of an extension of time.

• [24] The Respondent challenges the reasons given for the delay are not exceptional. It submits that Mr Suvar himself made an error in filing an unfair dismissal application and the evidence from the psychologist fails to explain how Mr Suvar can make an unfair dismissal application on time yet a general protections application late.

• [25] While the reason for the delay is not in itself required to be an exceptional circumstance, it is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[11] I now consider the balance of the circumstances relevant to an extension of time.

• [26] No steps were taken to dispute the dismissal either before or after the dismissal. Mr Suvar advises that his unfair dismissal and general protections application are evidence of disputing the dismissal, however, an application lodged in the Commission is not intended by this consideration. The purpose is to put the Respondent on notice of a challenge. For this reason, I do not consider this factor to weigh in his favour.

• [27] Mr Suvar contends there is no prejudice, and a mere 2 business days late is inconsequential.[12] However, the Respondent does submit it is prejudiced being a small business having to allocate resources to responding to an unmeritorious application.

• [28] While the Respondent submits it has been prejudiced, the explanation more clearly can be characterised as inconvenience. Nevertheless, an absence of prejudice does not weigh in favour of an extension of time, therefore this consideration is neutral.

• [29] In his application and written submissions, Mr Suvar submits that he made a complaint about compliance. His Form F8 provides the following in relation to this allegation:

"I believe I was dismissed in retaliation for exercising my workplace right to make a complaint about compliance. On 29 July 2025, I emailed the Construction Manager raising a serious issue: the roof package excluded insulation even though the JV3 report required R3.2 blanket insulation. I highlighted the cost impact and noted that the previous stage also had only sarking and no insulation. This was a legitimate complaint about statutory compliance. Approximately three weeks earlier I had been told I was "doing too good of a job," so performance was not in question."

• [30] In addition, a copy of the alleged complaint was tendered into evidence. An email of 29 July 2025[13] provides:

While closing out the roofing package I picked up a mismatch between what we have asked the roofers to price and what the JV3 report mandates."

• [31] This email refers to the particular requirement, cost impact, previous stage and possible pathways for the roof insulation. Under the heading 'Current Action,' it says "currently I have instructed the tendering roof subcontractors to proceed as previous stage, let me know if you have another approach in mind." This email does not appear to be a complaint and certainly does not concern a workplace right as defined by s.341 of the Act.

• [32] Mr Suvar was unable to disclose any benefit, entitlement or responsibility under any workplace a law, instrument or order made by an industrial body. Further the email is not a complaint or inquiry initiating proceedings or to a person or body with a capacity under workplace law for compliance. Section 341 follows:

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee - in relation to his or her employment."

• [33] The Respondent submits the reason for dismissal relates to performance during the probation period and denies any contravention of general protections. Further the Respondent says in relation to the alleged complaint that Mr Suvar's comments were received but was informed that he was reading the general schedule incorrectly. Mr McMulen gave evidence that he considered the discussion resolved the misunderstanding. He further gave evidence of Mr Suvar's performance while employed by the Respondent.

• [34] Mr Suvar's submissions on merit do not concern the contravention of general protections and while he is aggrieved by his dismissal, there is insufficient evidence to weigh in support of an extension.

Fairness between the person and other persons in a like position

• [35] Neither party addressed this consideration, consequently, I find this consideration neutral.

• [36] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

• [37] In consideration of the matters in s.366(2) I find on balance they do not weigh in favour of granting an extension of time. The reason for delay, merit and steps taken to dispute the dismissal do not weigh in favour of an extension, and prejudice and fairness I consider neutral considerations.

• [38] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

[1] Applicant tendered into evidence confirmation of receipt of the Form F8 by the Fair Work Commission on 26 August 2025- Annexure D to the Applicant's submissions.

[2] Applicant tendered into evidence confirmation of receipt of the Form F2 by the Fair Work Commission on 21 August 2025- Annexure B to the Applicant's submissions.

[3] Sworn witness statement of Frank McMullen dated 2 October 2025.

[4] [2011] FWAFB 975.

[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[10] Annexure A to the Applicant's submissions.

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

[13] Applicant tendered into evidence email of 29 July 2025- Annexure E to the Applicant's submissions.

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