s.365 - General protections

Application to deal with a general protections dismissal dispute - application filed out of time - application for extension of time - extension granted

• [1] Gonzalo Valenzuela was employed by Governor Group Pty Ltd as a Sales Manager. On 3 March 2025, Governor Group terminated his employment on the ground of redundancy.
• [2] Mr Valenzuela took issue with his dismissal. On the same day he was informed of the redundancy of his position, he sent an email to Sam Macri, the General Manager of Governor Group, asserting that the redundancy "does not meet the criteria of genuine redundancy". He requested a "fair and proper redundancy package", failing which he might commence proceedings against the company.
• [3] From 3 to 21 March 2025 there was a considerable amount of email correspondence between the parties. In that correspondence, Mr Valenzuela continued to dispute that his position had been genuinely redundant, describing it as a sham. He contended that he had been dismissed for other, discriminatory reasons. He criticised the process by which the dismissal had been effected, including an alleged failure to properly consult with him. He asserted, amongst other things, that his dismissal was both unfair and amounted to adverse action within the meaning of the Fair Work Act 2009 ("Act"). He raised the possibility of proceedings in the Fair Work Commission and elsewhere if the matter could not be resolved on acceptable terms.
• [4] For its part, Mr Macri maintained in the correspondence that the dismissal was a case of genuine redundancy. He rejected Mr Valenzuela's contentions to the contrary. He denied that the dismissal was in breach of the Act or any other law, or could otherwise be challenged on substantive or procedural grounds.

• [5] On 13 March 2025, Mr Macri sent an email stating that Governor Group remained "open to exploring and reaching an amicable resolution, should a suitable offer be presented". Mr Valenzuela put forward a proposal in an email he sent to Mr Macri the next day. In an email sent on 18 March 2025, Mr Macri informed Mr Valenzuela that Governor Group was "considering its options in relation to prospects of settlement". Mr Valenzuela was informed that he would have a response by 21 March 2025. On 19 March 2025, Mr Valenzuela sent an email to Mr Macri and others, saying that on 21 March 2025 he intended to "proceed with the formal lodgment of [his] claims" including a "General Protections & Adverse Action claim with the Fair Work Commission". On the evening of 21 March 2025, Mr Macri sent an email to Mr Valenzuela saying "we will not be entertaining offers you have advised".
• [6] Before receiving that last email, Mr Valenzuela had commenced proceedings against Governor Group. At 11.54am on 21 March 2025, he filed an unfair dismissal application under section 394 of the Act. At 12.25pm on 21 March 2025 he filed an application for the Commission to deal with a general protections dispute under section 365 of the Act.
• [7] Mr Valenzuela gave evidence that at about 4.00pm on 26 March 2025, he received a call from a staff member of the Commission who informed him that:

(1) he could not proceed with both of his applications;

(2) he could proceed with his unfair dismissal application, but that would require him to withdraw the general protections application; and

(3) if he wished to proceed with a general protections application he would need to withdraw both applications and file a fresh application under section 365. In that case, as the application would be out of time, Mr Valenzuela would need to obtain an extension of time.

• [8] Mr Valenzuela stated that later on 26 March 2025 he called the Commission to clarify the information he had received.
• [9] On 27 March 2025, Mr Valenzuela discontinued the applications he had filed on 21 March 2025. At 11.13am on 27 March 2025, he filed a fresh application under section 365. It is that application which is currently before the Commission.

• [10] An application under section 365 must be made within 21 days after the dismissal took effect, unless the Commission allows a further period.[1] The 21-day period ended on 24 March 2025, but these proceedings were commenced on 27 March 2025. Mr Valenzuela requires the Commission to allow him an extension of time to file the application. He applies for such an extension.
• [11] Governor Group opposes Mr Valenzuela being granted an extension of time.
• [12] To grant Mr Valenzuela an extension of time, the Commission must be satisfied that there are "exceptional circumstances", taking into account:[2]
  • (1) the reason for the delay. The "delay" is the period between the end of the 21-day period and the filing of the application.[3] In this case, the delay is three days;

(2) any action taken by Mr Valenzuela to dispute the dismissal;

(3) prejudice to Governor Group (including prejudice caused by the delay);

(5) fairness as between Mr Valenzuela and other persons in a like position.

• [13] These considerations are matters which the Commission must take into account rather than conditions to be satisfied.[4]
• [14] Circumstances will be "exceptional" if they are out of the ordinary course, or unusual, or special, or uncommon. They do not need to be unique, or unprecedented, or very rare.[5] Exceptional circumstances may include:

• (3) a combination of ordinary factors which, when taken together, are seen as exceptional.[6]

• [15] The test of "exceptional circumstances" establishes a high hurdle for an applicant for an extension.[7] It is for Mr Valenzuela to demonstrate that exceptional circumstances exist.[8]
• [16] But a finding that exceptional circumstances exist is not the end of the matter. The Commission still has a discretion whether or not to allow an extension of time.[9]
• [17] So, I need to answer these questions:

(1) Do exceptional circumstances exist in this matter, taking into account the criteria at referred to above?

(2) If so, should I exercise my discretion to allow Mr Valenzuela an extension of time?

• [18] For the following reasons, the answer to both questions is yes.

Why I have decided that there are exceptional circumstances

• [19] I will explain my decision by reference to the criteria at [12] above.

• [20] Mr Valenzuela does not necessarily have to provide a reason for the entire period of the delay.[10] He also does not have to show that the reason for the delay is itself exceptional. It is just one of the factors to be taken into account. However, a credible explanation for the entirety of the delay will generally assist an applicant. On the other hand, the absence of an explanation for the delay (or part of it) will generally count against them.[11]
• [21] Mr Valenzuela submitted that the delay was the result of a "genuine and understandable procedural mistake". His arguments may be summarised in this way:

(1) He had deferred commencing proceedings so as to allow for the possibility of the matter resolving, as canvassed in the parties' email correspondence.

(2) Even so, he had originally commenced proceedings within the 21-day time limit.

(3) He was not aware that he could not file both an unfair dismissal claim under section 394 and a general protections claim under section 365 at the same time. He was of the belief that it was necessary to lodge both claims as "different legal grounds were involved".

(4) He was not made aware that he could not proceed with the general protections claim filed on 21 March 2025 until five days later. By that time, the 21-day time limit had elapsed.

(5) He moved promptly to rectify the situation, once it had been brought to his attention. He had received the call from the Commission at about 4.00pm on 26 March 2025. By 11.13am the next day, he had filed a fresh general protections application.

(6) At the time, he was under "immense personal strain". His wife had recently given birth to the couple's second child, and Mr Valenzuela was actively involved in caring for the newborn and their 15-month-old son. He was also under financial pressure, having just lost his job and with his wife having taken six months off work.

• [22] Governor Group acknowledged that "[t]he delay of three days is minimal and was the result of an honest procedural mistake". However, it disputed that Mr Valenzuela had provided an acceptable reason for the delay. Its arguments came down to the following propositions:

(1) In his emails to Mr Macri, Mr Valenzuela referred to having obtained legal advice. Governor Group contended that he "should have been properly advised" that he could not file both an unfair dismissal and a general protections application.

(2) Mr Valenzuela should have been able to act within the statutory time frame regardless of ongoing negotiations with Governor Group.

(3) The advice which Mr Valenzuela received from the Commission appeared to be contradictory. This called into question whether he had received that advice or had recalled it accurately. At the very least, it called for the Commission to conduct an investigation of its records, particularly if Mr Valenzuela received incorrect advice.

• [23] There is no substance to the arguments that Governor Group advanced. The first proposition is entirely speculative. It rests on several assumptions: that Mr Valenzuela obtained legal advice; the advice that he sought included the question of whether two applications could be made; and, he would have been told that he could not do so. The implication in Governor Group's submission is that Mr Valenzuela did or would have received advice that he could not file both applications, and that he failed to heed it. (I am confident that Governor Group was not suggesting that Mr Valenzuela had been improperly advised. Had he been so, it might be said to support his extension application.)
• [24] I acknowledge that there is a reference in one of the emails that Mr Valenzuela sent to Mr Macri to him having obtained "extensive legal advice". However, Mr Valenzuela stated that he had not formally engaged a lawyer. He said that while he sought advice from a number of sources, that did not extend to matters of process. There is no evidence to the contrary.

• [25] There is a short answer to the second of Governor Group's propositions: the ongoing negotiations did not prevent him acting within the statutory time frame. The problem was that Mr Valenzuela lodged two applications.

• [26] As to the third proposition, I am satisfied of two things. First, a person from the Commission called Mr Valenzuela and spoke to him on 26 March 2025. Second, there was nothing "contradictory" or incorrect in the information provided to him.

• [27] Although I have not undertaken an "investigation" as Mr Macri suggested, I have taken up his invitation to review the Commission's records for evidence of the conversations to which Mr Valenzuela referred. Those records contain a file note recording an outbound call from a member of the Commission's staff to Mr Valenzuela on 26 March 2025. The file note reads:

"Raised multiple applications issue - A [Applicant] advised he was unsure when he lodged but wished to proceed with the GP application. FWC explained that as the UD was lodged first, it was considered to be the valid application and the GP is invalid. Explained that discontinuing the UD now would not remedy the invalidity of the GP application. Explained options to proceed with UD application or to discontinue both applications and file a fresh GP application. Flagged risks related to OOT [sic - out of time] lodgment and possibility that extension may not be granted. Sent SMS to legal advice referral and recommended seeking advice as soon as possible. Explained that absent instruction from the A, valid application would proceed and invalid application would be referred to a Member who may dismiss the application."

• [28] The records also contain a file note of an inbound call from Mr Valenzuela the same day. That file note reads:

"A advised he had received preliminary advice and was likely to elect to discontinue both applications. Raised questions in relation to process for submitting an EOT [sic - extension of time] application and whether a separate form was required. FWC provided direction in relation to Form F8 including question on filing outside 21 day timeframe. Stressed importance that should he wish to follow this pathway, discontinuance for both existing matters would need to be received, by email or phone, before filing fresh application. A believes he will receive supplementary legal advice today or tomorrow and confirmed understanding that the applications could not be held and that unless it was discontinued promptly, UD application may be served on the respondent and listed for conciliation."

• [29] These file notes corroborate Mr Valenzuela's evidence both as to the fact of speaking to the Commission's staff, and the substance of the conversations. The information that he received reflects the operation of the Act. Once he lodged his unfair dismissal application, Mr Valenzuela was not able to make the general protections one.[12] It followed that only the unfair dismissal application had been validly made. Discontinuing that application would not validate the general protections application. He could either progress the unfair dismissal application, or withdraw both applications and file a fresh general protections application (with the requirement that he be granted an extension to file it out of time).
• [30] That leads me to consider the reasons for the delay that Mr Valenzuela advanced.
• [31] I accept that Mr Valenzuela was unaware that he was precluded from making the general protections application after he had filed the unfair dismissal one. Even so, it is well accepted that mere ignorance of the law would not be a sufficient basis for the grant of additional time.[13] However, I reiterate that it is not necessary that the reason for the delay be exceptional of itself.
• [32] I view Mr Valenzuela's misunderstanding in the context of several facts. First, he originally sought to file his application on 21 March 2025. This was three days before the end of the statutory time limit. He did not leave things until the last minute.

• [33] Second, he was not made aware of his error until 26 March 2025, by which time the time period had elapsed. I make that observation without in any way suggesting criticism of the Commission's staff; it is simply a statement of fact.

• [34] Third, Mr Valenzuela filed the present general protections application the morning after he had been contacted by the Commission. There was no real delay in him seeking to rectify his error.

• [35] Having regard to all of the circumstances, I am satisfied that Mr Valenzuela has provided an acceptable explanation for the delay in this case. This argues in favour of a finding of exceptional circumstances.

Valenzuela immediately disputed his dismissal

• [36] It will be relevant if an employee has taken action taken to dispute their dismissal, other than by applying under the Act. It will show, and put the employer on notice, that the employee actively challenges their dismissal. This may support an extension of time.[14]
• [37] There is no question that Mr Valenzuela disputed his dismissal from the day on which he was notified of it. I have already referred to the email communications between Mr Valenzuela and Mr Macri between 3 and 21 March 2025. In his emails, Mr Valenzuela set out at length the bases on which he challenged his dismissal. He clearly flagged the possibility of commencing proceedings in the Commission if the matter was unable to be resolved between the parties.
• [38] This consideration supports a finding of exceptional circumstances.

Would Governor Group suffer prejudice (including prejudice caused by the delay)?

• [39] Governor Group contended that it has suffered prejudice in two respects. First, it has been "forced to divert resources and time to addressing an invalid application made outside the statutory 21-day period". Second, the delay has impeded Governor Group's "ability to reach an amicable resolution in a timely manner, causing unnecessary legal and administrative burdens that could have been avoided if [Mr Valenzuela] had complied with the filing requirements from the outset".
• [40] Neither of these contentions demonstrate prejudice. The first is simply the corollary of Mr Valenzuela exercising his right to apply for an extension of time to file his application, for which the Act provides. The second rests on the premise that had the application been filed within time, Governor Group would have attempted to reach "an amicable resolution in a timely manner". However, in his email to Mr Valenzuela of 21 March 2025, Mr Macri appeared to shut the door on settlement discussions. Governor Group led no evidence to explain how the filing of a general protections with the time limit would have changed its position on settlement.
• [41] I do not consider that Governor Group would suffer any relevant prejudice were I to grant an extension of time. However, the absence of prejudice does not of itself support a finding that exceptional circumstances exist.[15] This consideration argues neither for or against an extension of time.

• [42] For present purposes, it is sufficient for Mr Valenzuela to show that his claim has some merit. The greater the merit, the more weight will be given to this factor.[16] However, the Commission should not embark on a detailed consideration of the substantive case in an extension of time application.[17]
• [43] Mr Valenzuela contends that his dismissal was a sham, concocted to remove him in retaliation for exercising workplace rights and raising concerns about the culture of the workplace. He relies on the fact that Governor Group made the decision to declare his position redundant several weeks before communicating it to him, while he was on a period of personal leave. He claims that there was no meaningful consultation with him about the redundancy of his role or alternatives to dismissal. He submitted that the redundancy was "calculated, rehearsed, and executed without regard for process, protection, or obligation".
• [44] Governor Group denies that it acted in any way improperly in effecting Mr Valenzuela's dismissal. It argues that the termination was "legally sound and carried out in compliance with all applicable employment laws". It denies breaching the general protections provisions of the Act. It contends, contrary to his submissions, that it sought to consult with Mr Valenzuela, particularly in relation to redeployment, but that he rebuffed the company's efforts in that regard.
• [45] The factual and legal contests between the parties are significant. There is insufficient material available to me to draw even tentative conclusions as to the findings that are likely to be made on these matters following a hearing.

• [46] I have determined that this factor argues neither for nor against a finding of exceptional circumstances.

Fairness as between Valenzuela and other persons in a like position

• [47] This consideration is concerned with the importance of the Commission applying consistent principles in cases of this kind, so as to ensure fairness as between Mr Valenzuela and other persons in a similar position. The consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[18]
• [48] Neither party brought to my attention any relevant matter concerning this consideration. I am unaware of any relevant matter. Consequently, I consider that this factor argues neither for nor against a finding of exceptional circumstances.

• [49] I have determined that the matters that I am required to take into account either weigh in favour of an extension of time or do not swing the balance either way. On that basis I am satisfied that exceptional circumstances exist warranting an extension of time.
• [50] Those considerations also lead me to conclude that it is appropriate that I exercise my discretion to allow the extension.

• [51] I order that the time for Mr Valenzuela to make his application under section 365 for the Commission to deal with a dismissal dispute be extended to 27 March 2025.

[1] Section 366(1)

[2] Section 366(2). The requirement to take these matters into account means that each of them must be considered and given appropriate weight: see for example Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [19].

[3] Long v Keolis Downer t/a Yarra Trams [2018] FWCFB 5109 at [40]

[4] Kuncho Kurtev v KCB Australia Pty Ltd, Toni Telfer [2025] FWCFB 13 at [24]

[5] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]. In that case, the Full Bench considered the meaning of "exceptional circumstances" in the context of section 394(3), which is in relevantly analogous to section 366(2).

[6] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]

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

[8] Romic v Blacktown City Council [2020] FWC 2533 at [8], citing Wemyss v Mission Australia Employment Services [2010] FWA 1798.

[9] Halls v McCardle and Ors [2017] FCCA 316, cited in Nikhil Challa v Australia and New Zealand Banking Group Limited t/as ANZ Bank [2017] FWCFB 436 at [16]

[10] Coles Supply Chain Pty Ltd v Milford (2020) 300 IR 146; [2020] FCAFC 152 at [40]

[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [39]

[12] This is the combined operation of sections 725 and 729

[13] See for example, Abdul Aboud v Nickal Pty Ltd T/A Plan & Grow [2024] FWCFB 198 at [63]- [64]

[14] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300

[15] Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [38], quoted with approval in Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [21]

[16] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [71]

[17] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [72]

[18] James Morphett v Pearcedale Egg Farm [2015] FWC 8885 at [29]

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