s 365 - General protections

Eastpoint Pty Ltd Trading As Toyota WA Parts Distributor & Siocean Pty Ltd

General protections involving dismissal - out of time - application dismissed

[1] On 11 December 2025, Gerrard Prockter (the Applicant) applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth) (the Act) for it to deal with general protections contraventions involving dismissal.

[2] On 19 January 2026, the First Respondent identified by email to Chambers that the legal name of the Applicant's former employer was 'Eastpoint Pty Ltd trading as Toyota WA Parts Distributor' notwithstanding that it had been identified in the application as Prestige Motors Pty Ltd. The First Respondent noted that 'Eastpoint Pty Ltd trading as Toyota WA Parts Distributor' and 'Prestige Motors Pty Ltd' were different companies within the Perron Group of companies. On 20 January 2026, the Applicant made an application to amend the name of the First Respondent, and I permitted the amendment pursuant to s 586 of the Act.

• [3] The Act requires an application made under s 365 to be lodged within 21 days after an applicant's dismissal took effect or within such further period as the Commission allows under s 366(1)(b) of the Act.[1] The First Respondent and Siocean Pty Ltd (the Second Respondent), objected to the application on the basis that it was filed outside the 21-day period prescribed by s 366(1)(a) of the Act.

[4] In addition, the Second Respondent raised further objections to the application. First, it submitted that it had no direct employment relationship with the Applicant and should be excluded from the application. The Second Respondent explained that it provides human resources, consulting and advisory services to the First Respondent on an 'as and when required basis', for which it is paid an hourly rate. The Applicant asserts that he included the Second Respondent in his application because the director of the Second Respondent, Mr Pryde, engaged in the following:

a) attended the disciplinary meeting;

b) acted as management's support person;

c) participated in the discussion of outcomes;

d) communicated the post-meeting written overview to the Applicant; and

e) became the sole point of contact for all matters following the meeting.

• [5] With respect to this jurisdictional objection, I consider it misconceived as was canvassed with the parties. Sections 365 and 368 of the Act do not establish a jurisdictional impediment to an application validly made under s 365 identifying persons or entities in addition to an applicant's employer as parties to the relevant dispute. Those provisions contain no prescription or limitation as to the person or entity who may be involved in the dispute resolution process. It is established that an applicant may seek to include in the dispute resolution process any persons whom, the applicant alleges, have accessorial liability under s 550 of the Act for the dismissal alleged to be in contravention of the general protections provisions of Part 3-1 of the Act.[2]

[6] Second, the Second Respondent pressed that the Applicant resigned and was not dismissed. However, the Applicant contends that his resignation was involuntary and therefore he was dismissed.

• [7] In Taylor v Department of Justice and Community Safety[3] ('Taylor') the Full Bench of this Commission broached circumstances where a respondent objected to the jurisdiction of the Commission to deal with an unfair dismissal application on the dual and alternative grounds that there was no dismissal and if there was a dismissal, then the application was made outside the primary 21 day time limit.[4] In Taylor, the Full Bench, referred to the Full Court judgment in Coles Supply Chain Pty Ltd v Milford[5] ('Coles v Milford') (a case concerning an application under s 365 of the Act), where it was expressed that whilst an application for an extension of time requires the ascertainment of the length of the delay between the date of dismissal and the expiry of the statutory time limit, there may be cases where the Commission can avoid drawing a conclusion as to whether or not an employment relationship has ended in circumstances that amount to a dismissal, and proceed to determine an application for an extension of time on the assumption that it has so ended.[6] The Full Court expressed that in an appropriate case, it may also be permissible for the Commission to determine that the employment came to an end on a particular date without deciding whether or not the applicant was 'dismissed' within the meaning of s 386 of the Act.[7] The Full Court, however, did not identify the parameters of an 'appropriate case'.

[8] The Full Bench in Taylor nevertheless expressed that where there was no dispute as to the date the employment came to an end, this may be an appropriate case to proceed on the basis of an assumed dismissal. In Taylor, the Full Bench referred to circumstances of a 'forced' resignation where there was no dispute in respect of the end date of the employment, observing this was one such parameter.

[9] The parties are in agreement that the date that the employment ended was 9 July 2025, therefore allowing for the calculation of the delay period. It follows that the Second Respondent's second jurisdictional objection is misconceived insofar as it asserts that this Commission cannot contend with the extension of time issue prior to determining whether the Applicant was dismissed. This point was, in addition, canvassed with the parties.

[10] As the Applicant's employment ended on 9 July 2025, his application was lodged some 134 days after the statutory deadline. The Applicant contends that there are essentially three reasons for the delay in lodging his application. First, he was attempting to find a job to support his young family. Second, he had depression arising from his purported treatment by the First Respondent. Third, he had separated from his fiancé due to financial pressure.

[11] For the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 366(2) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the factors listed at s 366(2)(a)-(e). The issue before me is whether the circumstances are exceptional and, if they are, whether it is fair and equitable for an extension to be granted.

• [12] The matter proceeded to a determinative conference. Having heard from the parties and having considered the materials filed, in the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am, on balance, not satisfied that there are exceptional circumstances as contemplated by s 366(2) of the Act and therefore the application is dismissed. An Order[8] issues concurrently with this decision and my detailed reasons follow.

• [13] Under s 366(1)(b) and (2) of the Act, the Commission has the power to extend the time within which an application for a general protections dismissal dispute can be made. In Tamu v Australia for UNHCR,[9] a Full Bench of the Commission summarised the principles relevant to applications of this kind:

[16] Section 366(1) provides that a general protections application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2). The 21 day period prescribed in section 366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.

[17] Section 366(2) of the Act sets out the circumstances in which the Commission may grant an extension of time as follows:

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

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

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

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

[18] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension. A decision whether to extend time under section 366(2) involves the exercise of a discretion.

[19] The meaning of "exceptional circumstances" in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd ('Nulty'),[10] as follows:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. 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 singular occurrence, even though it can be a one 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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance."

[20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.' (footnotes omitted)

• [14] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd ('Stogiannidis'),[11] a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers,[12] which had concluded that for 'exceptional circumstances' to be established, an applicant must provide reasons for the whole of the period of delay. In Stogiannidis, the Full Bench expressed:

[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time 'needs to provide a credible explanation for the entire period', it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.

• [15] It has been observed that the Act does not specify what reason for delay might tell in favour of granting an extension.[13] However, decisions of the Commission have referred to an acceptable[14] or reasonable[15] explanation. The absence of any explanation for any part of the delay may weigh against an applicant in the assessment of whether there are exceptional circumstances, whilst 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.[16]

• [16] The relevant period required to be considered under s 366 is the period after the 21-day timeframe for lodging the application.[17] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[18]

[17] As noted, the Applicant relies on three matters as reasons for the delay in lodging his application.

[18] First, he was attempting to find a job to support his young family and second, as observed, the Applicant states that following his dismissal, he had issues with his mental health.

• [19] As was identified in in Bates v Joblink Plus Limited, having been drawn from the reasons of the Full Bench in Shaw v Australia and New Zealand Banking Group Ltd, stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves.[19] It is well-established that the loss of employment is a serious event in a person's life, and that the aforementioned responses and consequences are not unusual.[20]

• [20] However, it is accepted that an applicant's medical condition can be so significant that it affects the applicant's mental capacity to prepare and file an application with the Commission. Much, however, may turn on the evidence adduced to support such a proposition. In Underwood v Terra Firma Pty Ltd, the Full Bench accepted the finding made at first instance that the applicant had failed to positively demonstrate that his depressive illness had impacted his mental capacity so as to prevent him from making the application within 21 days.[21] The Full Bench affirmed the findings that the medical evidence relied upon 'did not positively demonstrate that the Appellant's depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21-day time frame' and that no exceptional circumstances were established.[22]

• [21] In the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish that they were prevented from lodging an application due to a medical condition where the employee demonstrates capacity to act by performing other tasks following the dismissal.[23] In this case, there is no probative medical evidence showing incapacity at a particular time or times in the delay period. Further, the Respondent asserts that during the delay period, the Applicant secured alternative employment which contradicts any claim that the Applicant was incapacitated during the delay period.

[22] The Applicant gave evidence at the determinative conference that a few weeks after the termination of his employment, he felt ready to look for work. The Applicant noted he was not in the best mental state but did what he could (to find work) and applied online and went into places to try and secure employment. According to the Applicant, approximately two to three months after the termination of his employment, he secured work. The Applicant submitted that he was not asserting that searching for a job alone was exceptional but rather it was the surrounding circumstances in combination that constituted exceptional circumstances. The Applicant stated that once he found stability again by finding a job and having dealt with a lot of things on the home front, that is when he took steps (to make the application).

• [23] Whilst sympathetic to the circumstances that the Applicant faced at the time of his dismissal, specifically the stress and financial hardship, it is common for employees to suffer shock and trauma because of dismissal from employment,[24] and financial hardship on the loss of job. These reasons do not necessarily lead to a finding of a plausible reason for the delay. In this case, I am unpersuaded that the Applicant's medical condition, financial hardship or searching for work, provides a reasonable explanation for the delay in making his application. As submitted by the Respondent, the evidence before me did not support a finding of incapacity to make the application given the Applicant was able to search for and secure employment during the period of delay.

[24] The Applicant further relies upon his separation from his fiancé as a reason for the delay. Whilst the Applicant does not suggest that he was in divorce proceedings, decisions that touch on these matters are, at the very least, informative.

• [25] In Habib v A-Tech Australia Pty Ltd, the Commissioner considered evidence where the applicant noted a lack of positivity after losing his job whilst at the same time going through divorce proceedings.[25] The Commissioner acknowledged that the applicant was in the latter stages of divorce proceedings when dismissed but considered that the Applicant had been separated from his wife for many months, and that the divorce had been ratified near on a month after the unfair dismissal application had been made.[26]

• [26] Martin v Alpha HR Pty Ltd ('Martin') is similarly a case in which the applicant was going through a divorce.[27] However, it does not strike me that this was the predominant circumstance that led the Deputy President to form the view that the reason for the delay weighed toward granting an extension of time. In Martin the applicant had his phone service cut off due to an inability to pay his bill and did not have access to a laptop.[28] Further, the applicant had, in the statutory period (presumedly before his phone was cut off) 'tried to contact 11 companies regarding unfair dismissal applications' but they purportedly did not accept his case because of issues surrounding sexual harassment.[29] In Martin, the applicant had provided to the Commission evidence of call logs and identified the entities he contacted.[30]

[27] It is evident from the case law that there will be circumstances where divorce proceedings, or in this case a relationship separation, may be considered a plausible reason that has contributed to the delay in the making of an unfair dismissal application, and other circumstances where it will not. Each case will turn on its own facts. The evidence before me, however, does not illuminate how the Applicant's separation from his finance prevented the timely lodgement of the application or how that separation gave rise to the period of the delay or part of that period.

[28] I am not unsympathetic to the Applicant's challenging circumstances during the period following the end of his employment and arguably during the period of delay. It is to be appreciated that the Applicant was highly dissatisfied about the manner in which the employment relationship ended. However, on the evidence before me, I am unpersuaded, on balance, that exceptional circumstances confronted the Applicant, as that term is understood under the Act.

[29] I have considered the delay as the period beyond the 21-day period. Regard has been had to the circumstances from the date the dismissal took effect. I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the whole period of the delay in lodging his application, or part thereof. This weighs against a finding of exceptional circumstances.

• [30] Action taken by the employee to contest the dismissal, other than lodging a general protections dismissal dispute, may favour granting an extension of time.[31] The Applicant contends that he did not have a choice in respect of disputing the conclusion of the employment relationship. That is, the Applicant did not take action to dispute his dismissal.

[31] It follows that it is not the case that the Respondent had been placed on notice of the Applicant's grievance regarding his purported involuntary resignation. This factor therefore weighs against a finding of exceptional circumstances.

[32] When considering the factor of prejudice to the employer, the Commission considers whether the delay has caused the employer to suffer prejudice and whether the purported prejudice would not have been suffered had the application been made within 21 days of the dismissal taking effect.

• [33] In GHD Pty Ltd v Black, it was said that it is well accepted that a lengthy delay gives rise to a general presumption of prejudice.[32] In that case, the Full Bench held on appeal that a 168-day delay may impair the recollection or availability of witnesses and thereby give rise to a relevant prejudice.[33] The length of the delay in this matter is some 134 days. I am therefore content to adopt the general assumption that the delay period may impair the recollection and availability of witnesses in this case. Whilst not determinative of the issue, I simple observe for the record that the Respondent pressed at the determinative conference that a witness in this matter was ill and it would impede the Respondent's preparation of its case should the extension be granted.

[34] Having considered the material before me, I consider that this factor weighs against a finding of exceptional circumstances.

[35] The Act requires me to consider the merits of the application in considering whether to extend time.

[36] In Nulty, the Full Bench of the then Fair Work Australia considered the principles applicable to the extension of time discretion under s 366 of the Act. In that case, the Full Bench said in respect to the merits of an application:

[36] It ought be regarded as well established that on an extension of time hearing it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).

• [37] In Telstra-Network Technology Group v Kornicki, the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth).[34] In that case, the Full Bench said in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[35]

[38] In his application, the Applicant states that he was presented by the First Respondent with the choice between resigning or being immediately dismissed for alleged misconduct. The Applicant asserts this placed him under significant pressure and left him with no real or reasonable alternative but to resign.

[39] For its part, the First Respondent submits that the circumstances in which the employment relationship concluded were such that the Applicant was advised that the Respondent was considering termination based on serious misconduct concerns. The First Respondent further submits that in that context, and with a view to minimising any adverse impact on the Applicant's future employment prospects, the Applicant was offered the option to resign in lieu of dismissal. The First Respondent asserts that the Applicant requested time to make a telephone call to a legal representative and, after approximately twenty minutes, returned to the meeting and elected to resign.

[40] In my view, whilst appreciative that the Applicant asserts he was forced to resign and that the Respondent broached resignation as an alternative to dismissal, it remains unclear to me what grounds give rise to a breach of the general protections provisions. The Applicant presses that there is a viable issue as to whether adverse action was taken by forcing a resignation under threat of termination, denying time and denying legal advice. Whilst it is relevant to this application whether the Applicant was dismissed, and if an extension was granted this would be the next requisite consideration, again it remains unclear what the Applicant relies upon in supporting his contention that the general protections provisions were contravened.

[41] It is therefore difficult to conclude that the Applicant has established on the face of it that the substantive application is arguably not without merit. I have therefore concluded that this factor weighs against a finding of exceptional circumstances.

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

[42] The criterion of 'fairness as between the person and other persons in a similar position', was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[36]

• [43] The Commission's consideration of the factor under s 366(2)(e) of the Act is concerned with the consistent application of principles in applications of this kind.[37] This ensures fairness as between an applicant and other persons in a similar position. However, applications for an extension of time generally turn on their own facts, and it follows that in the circumstances of this case, the consideration of fairness between the Applicant and persons in a similar position is a neutral consideration.

[44] The conclusion as to the existence of exceptional circumstances will turn on a consideration of all the relevant matters and the assignment of appropriate weight to each.

[45] As noted, in the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am, on balance, not satisfied that there are exceptional circumstances as contemplated by s 366(2) of the Act. Whilst appreciative that the Applicant takes umbrage as to the way his employment ended, the reasons for the delay are uncompelling in the context of the Act and the meaning attributed to 'exceptional circumstances' within that framework. Further, the other factors I am obliged to consider do not lean towards a finding that the circumstances confronting the Applicant were exceptional. I am therefore unable to grant an extension of time, and the application must be dismissed.

[1] Section 366(1) of the Act.

[2] Kirkham v Monash University & Others [2024] FWCFB 429, [46]; Civmec Construction & Engineering Pty Ltd v Minchin [2025] FWCFB 2, [38]-[43].

[3] [2025] FWCFB 173 ('Taylor').

[5] [2020] FCAFC 152; (2020) 279 FCR 591 ('Coles v Milford').

[6] Ibid 604 [59] cited in Taylor (n 3) [71].

[7] Coles v Milford (n 5) [86] cited in Taylor (n3) [71].

[8] PR796260.

[9] [2019] FWCFB 2384.

[10] [2011] FWAFB 975.

[11] [2018] FWCFB 901 ('Stogiannidis').

[12] [2010] FWAFB 7251.

[13] Pottenger v Department of Caffeine [2018] FWC 3403, [31].

[14] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9].

[15] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

[17] Long v Keolis Downer [2018] FWCFB 4109, [40].

[18] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] ('Shaw').

[19] [2024] FWC 884, [19], citing Shaw (n 18), [15].

[21] [2015] FWCFB 3435.

[23] See Ballarat Truck Centre Pty Ltd v Kerr [2011[ FWAFB 5645, [15].

[24] Howard v Medical and Aged Care Group [2018] FWC 3454, [19].

[25] [2019] FWC 2474, [20].

[27] [2023] FWC 2257, [12], [15].

[31] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300 ('Brodie-Hanns').

[32] [2023] FWCFB 38, [51] ('GHD'), citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556, and Brodie-Hanns (n 31) 299-300.

[34] (1997) 140 IR 1.

[36] [2015] FWC 8885, [29].

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