s.365 - General protections

Application to deal with contraventions involving dismissal - application made out of time -extension not granted.

• [1] Pro Spec Group Pty Ltd dismissed Ms Hannah Gorton on Friday 28 February 2025. That same day, Ms Gorton applied to the Commission under s 365 of the Fair Work Act 2009 (Cth). That application was allocated to my Chambers and listed for conference on Tuesday 8 April 2025. On Saturday 29 March 2025, Ms Gorton wrote to my Chambers to discontinue her matter. On Wednesday 1 October 2025, Ms Gorton made a second application under s 365 in relation to her dismissal by PSG, 194 days outside the statutory time limit. This decision deals with Ms Gorton's second application and whether an extension of time should be granted.

• [2] I conducted a determinative conference on Wednesday 19 November 2025. Ms Gorton spoke for her case. Ms Laura McGrath (Managing Director) spoke for PSG.

• [3] Having considered the evidence of the parties and the factors in s 366(2) of the Act, I do not find that there are exceptional circumstances that justify an extension of time. Ms Gorton's application must be dismissed.

• [4] The detailed reasons for my decision follow.

• [5] Section 366 of the Act provides that a s 365 application must be made within 21 days after the dismissal took effect; or, within such further period as the Commission allows under s 366(2) if satisfied that there are exceptional circumstances.

• [6] It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique not 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 are of no particular significance, when taken together can be considered exceptional.[2]

• [7] In determining whether there are exceptional circumstances, I must take into account the criteria in s 366(2). Each of the matters in s 366(2) must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[3]

• [8] I set out my consideration of each matter below.

• [9] Ms Gorton needed to lodge her application by midnight on Friday 21 March 2025. The delay is the period commencing immediately after that time until Wednesday 1 October 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]

• [10] 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.[5]

• [11] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[6]

• [12] Ms Gorton's case is that she withdrew her first application and filed this second application late for the following reasons:

(a) Her pregnancy was high risk due to her recently undergoing gastric sleeve surgery.

(b) She was under significant stress during her pregnancy due to PSG's conduct. This included PSG fabricating a termination letter that was filed in response to her first application, and PSG monitoring her social media after her dismissal. Further, in July 2025, when Ms Gorton wrote to PSG regarding their failure to pay her owed superannuation, she received a threatening email that, "an investigator may contact us regarding wage theft and misallocation of department and company time during employment".

(c) On Wednesday 9 July 2025, Ms Gorton required gallbladder surgery.

(d) On Tuesday 7 October 2025, Ms Gorton's baby was delivered via emergency c-section.

• [13] Ms Gorton says that she is now in a stable position to continue pursuing her disputed dismissal.

• [14] Ms Gorton's first application was filed within the statutory time limit. She did not ask for an adjournment of her first application and discontinued the application before the listed conference. During the determinative conference Ms Gorton confirmed that she knew there was a 21-day time limit for applications to be made under s 365.

• [15] Ms Gorton did not provide any medical evidence that would explain why she could not continue with her first application. I accept that Ms Gorton had a high-risk pregnancy and that this caused her additional stress on top of being dismissed. However, based on the evidence provided I am not satisfied that the level of stress that Ms Gorton was experiencing rises to the level that it prevented her from continuing with her first application. I also understand that Ms Gorton felt that PSG were scrutinising her post dismissal, but that cannot be considered unusual given she had filed an application with the Commission.

• [16] I accept that Ms Gorton had periods of recovery for her gallbladder surgery and c-section delivery. However, whilst Ms Gorton's surgeries and her recovery explain part of the delay in filing this current application, I am not satisfied she has provided an explanation for most of the period prior to Wednesday 1 October 2025.

• [17] I find that this is a factor that weighs against a finding of exceptional circumstances.

• [18] Ms Gorton did dispute the dismissal with her first s 365 application. However, as she withdrew the application, I find that it is a neutral factor in assessing whether there are exceptional circumstances.

• [19] Ms Gorton also submits that she wrote to PSG regarding unpaid superannuation entitlements. I do not find that this constitutes disputing her dismissal.

2.3 Prejudice to the employer (including prejudice caused by the delay)

• [20] Neither side made submissions on this point. However, the absence of prejudice is not, of itself, conclusive of exceptional circumstances.[7] In these circumstances I treat this consideration neutrally.

• [21] The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[8] Further, the primary consideration is whether Ms Gorton has an arguable case.[9]

• [22] It is not disputed that Ms Gorton was dismissed one day after she sent her letter requesting information and accommodations for her maternity leave and raising issues about workplace culture. Ms Gorton says her sending this letter was the reason for her dismissal.

• [23] PSG says that Ms Gorton was dismissed due to poor performance. PSG says that Ms Gorton was already under performance review and within her probation period, and that this was the reason for dismissal.

• [24] In cases like this where there is not a full examination of the substantial merits, it is appropriate to assess any limited material through the prism of viewing the applicant's case at its most favourable.[10] In line with this principle, taking into consideration the temporal proximity between Ms Gorton's request for maternity leave accommodations and her dismissal, as well as the reverse onus of proof in these type of matters, I find that Ms Gorton has an arguable case. This is a factor that weighs in favour of a finding of exceptional circumstances.

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

• [25] The parties did not make any submissions on this point. I do not make any findings in regard to this consideration.

• [26] Having considered all the circumstances of this matter and the factors in s 366(2), I am not satisfied that there are exceptional circumstances. I have given weight to the length of the delay and my finding that Ms Gorton does not have a satisfactory reason for why her application was filed late, particularly in circumstances where she had filed an application within time but then discontinued it.

• [27] As I am not satisfied that there are exceptional circumstances, I order that Ms Gorton's application be dismissed.

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

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

[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287 [12] (Watson VP and Smith DP).

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

[7] Jovcic v Coopers Brewery Limited [2023] FCA 797 [16](d); BQQ15 v Minister for Home Affairs [2019] FCAFC 218 [33]; Parker v R [2002] FCAFC 133 [6]; Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, 348-9.

[8] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 [14].

[9] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 [32]-[34].

[10] Ivan Cowen v Renascent Regional Pty Ltd [2021] FWCFB 2606 [42].

Printed by authority of the Commonwealth Government Printer