s.365 - General protections

Application to deal with contraventions involving dismissal - application for extension of time - no exceptional circumstances - application dismissed

• [1] Mr Hagan Mason (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 3 July 2025. The Applicant claimed his employment was terminated by The Ubeeco Group Pty. Limited (the Respondent) in breach of s.351 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Applicant was dismissed effective from 2 June 2025. The Application was lodged 10 days outside of the 21-day statutory timeframe prescribed under s.366(1)(a) of the Act. The Application can only be accepted if the Commission allows an extension of time, taking into the factors in s.366(2) which I have considered below.

Should an extension of time be granted under s.366(2) of the Act?

• [3] Section 366 of the Act provides when a further period is granted to accept a late application.

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(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.

• [4] There must be exceptional circumstances in order to be granted a further period to lodge this application. In summary, exceptional circumstances are:

• Out of the ordinary course, unusual, special or uncommon. It does not need to be unique, unprecedented or vary rare.

• • It can be 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. [1]

Section 366(2)(a) - Reason for delay

• [5] The stated reason for delay is "inaccurate guidance provided by legal aid [sic] regarding the transition from a third-party agency to full-time employment with Ubeeco".

• [6] The Commission's records, which I have informed myself of under s.590 of the Act, indicate that the Applicant lodged an unfair dismissal claim on 11 June 2025, 9 days after his dismissal took effect.

• [7] The Applicant provided evidence which indicates that he sought advice through the Workplace Advice Service on 19 June 2025.

• [8] Although I found the Applicant to be generally truthful witness, his recollection was vague.

• [9] On 23 June 2025, the Applicant had a 41-minute-long phone call with Legal Aid. The Applicant made notes during that phone call which are as follows:

Family or carers section 351

Exercised sick leave rights section 341

• [10] The Applicant said he had explained everything to Legal Aid and told them he had previously lodged an unfair dismissal claim. The Applicant said he was told by Legal Aid that it was a "grey area" where he could either lodge an unfair dismissal or general protections claim as he argues he had been a labour hire worker who transferred to working for the Respondent. The Applicant said he was told that he could lodge both applications at the same time. He also said Legal Aid told him to "withdraw" the unfair dismissal claim and submit two applications. However, there is no reference to an unfair dismissal claim in the Applicant's notes. The written notes refer only to a general protections application. It seems more likely to me that the Applicant was advised that he could pursue either a general protections or unfair dismissal application but not both simultaneously. That advice was not unreasonable in the circumstances.

• [11] The advice given to the Applicant, as recorded in his notes, appears to be lodge general protections claim. The reference to lodging a Form F8 "tonight" is presumably because that day was the 21st day following the dismissal.

• [12] The Applicant did lodge a general protections application that evening after speaking with Legal Aid. However, he did not withdraw the previous unfair dismissal application. The general protections application, being the second dismissal-related application, was lodged in contravention of s.725 of the Fair Work Act.

• [13] The Applicant stated in his Form F8:

I had lodged my applications how I was advised to by a legal aid representative only to find out by fwc there was an error due to being told to fill out an application for unfair dismissal and general protection due to finding out this information from a fwc manager i was advised to withdraw those two applications and start a new one under general protection.

• [14] The statement that Legal Aid "told" the Applicant to lodge an unfair dismissal claim is not correct. The Applicant lodged an unfair dismissal application on 11 June 2025, before his request for legal advice and before his conversation with Legal Aid on 23 June 2025. I have no evidence that the Applicant spoke to Legal Aid in the period between 2 June 2025 and 11 June 2025. I find, on the evidence before me, that the Applicant lodged the unfair dismissal application of his own volition on 11 June 2025 prior to receiving legal advice. This is consistent with the lodgement form, which appears to have been written by a self-represented person.

• [15] On 3 July 2025, the Applicant claims a Fair Work Commission case manager told him that he would need to withdraw both applications as they "wiped each other out" and re-lodge the general protections application.

• [16] The Applicant discontinued the unfair dismissal and general protections application over the phone and re-lodged a general protections application that evening.

• [17] The Applicant said the case manager did not tell them that there would need to be an extension of time hearing as a result of a lodging a late application. I have informed myself of what the Applicant was advised during the call under s.590 of the Act and note that the Applicant was explicitly informed that there would need to be an application for an extension of time, which would need to be assessed by a Member.

• [18] It is not uncommon for Applicants to file the wrong application forms, resulting in a subsequent late filing. It is well established that ignorance of the law does not establish exceptional circumstances.

• [19] In relation to the Applicant's reliance on allegedly incorrect advice from Legal Aid forming the basis for an extension of time, the Applicant has not established exceptional circumstances.

• [20] I make the following observations. First, the Applicant filed an unfair dismissal application on 11 June 2025. He was not advised to file that form, it was his choice. During the subsequent conversation with Legal Aid on 23 June 2025, the Applicant made relatively detailed notes of his conversation with Legal Aid. He did not write anything down about being advised to continue an unfair dismissal application and general protections application at the same time, without discontinuing the earlier application. I find it unlikely that the Applicant would have received this advice from Legal Aid, who are experienced in providing employment law advice. I note the Applicant did not adduce evidence directly from Legal Aid. Further, the Applicant had not retained Legal Aid to lodge an application on his behalf. Rather, Legal Aid provided pro bono advice to the Applicant. All the application forms were filed by the Applicant himself. He could have made his own enquiries with the Commission about whether he needed to withdraw the unfair dismissal application prior to lodging a general protections application.

• [21] I find that the Applicant has not provided an acceptable reason for the delay. This consideration weighs against an extension of time.

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

• [22] The Applicant lodged two dismissal-related applications with the Commission prior to the expiry of the 21-day period. I am satisfied that he took action to dispute the dismissal prior to lodging this application. This consideration weighs in favour granting an extension of time.

Section 366(2)(c) - Prejudice to the employer (including prejudice caused by the delay)

• [23] The Respondent did not submit that it would be prejudiced if the application were granted.

• [24] I am not satisfied that there is any prejudice to the employer. I find that this is a neutral factor.

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

• [25] It is not appropriate to embark on a detailed exploration of the merits of the matter when considering whether to grant an extension of time.

• [26] On the material before me, I am satisfied that the application is not without merit. I find this to be a neutral factor in this application.

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

• [27] The Applicant did not provide any submissions on this point. I note that it is not uncommon for general protections applications to be filed out of time due to filing an unfair dismissal application first. In situations such as this, ignorance of the law does not establish exceptional circumstances, such that the strict time limit should be extended.

• [28] I find this to be a neutral factor in this application.

• [29] Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. Accordingly, the extension of time is not granted and the application is dismissed.

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

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