s.365 - General protections

Application for the Commission to deal with a dismissal dispute under s.365 of the Act - application filed 276 days out of time - extension not granted - application dismissed.

• [1] On 19 May 2025, Ms Harneet Kaur Dhillon (the Applicant) made a general protections application involving dismissal to the Fair Work Commission pursuant to s.365 of the Fair Work Act 2009 (the Act). As it was evident from the Applicant's Form F8 - General Protections Application Involving Dismissal (Form F8) that the application was not made within 21 calendar days after the Applicant's asserted dismissal took effect, the Applicant was required to seek an extension of time in which to file her general protections application. The Respondent to this application is Ralph Lauren Australia Pty Ltd (Respondent) and in its Form F8A - Response to General Protections Application (Form F8A) it objected to the Applicant's application on the basis that the application was lodged out of time and the Applicant was not dismissed within the meaning of s.386 of the Act because she voluntarily resigned.

• [2] In Coles Supply Chain Pty Ltd v Milford (Milford)[1] the Full Federal Court considered whether, in a general protections dismissal application, the Commission was always required to determine a jurisdictional objection that there has been no dismissal, when an out of time objection is also made. The Full Court observed as follows:

[59] As discussed later in these reasons, there may be cases where the FWC may 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. But on an application for an extension of time, ascertainment of the length of the delay between the date that the relationship ended and the expiration of the statutory time limit must be identified.

[86] In an appropriate case, it may also be permissible for the FWC to determine that the employment came to an end on a particular date without deciding whether or not the applicant was "dismissed" with the meaning of s 386 of the FW Act. In such a case it may be permissible to refuse to grant an extension of time even assuming, for the employee's benefit, that there was indeed a dismissal.

• [3] These observations from Milford were recently considered by a Full Bench of the Commission in Graham Taylor v Department of Justice and Community Safety[2] in the context of an unfair dismissal application made under s.394 of the Act. Relevantly, however, I consider that it can be discerned from the observations of the Full Court in Milford that an "appropriate case" in which it will be permissible for the Commission to assume that employment came to an end on a particular date, without deciding whether or not the applicant in question was "dismissed" with the meaning of s.386 of the Act, will be one where an employee has resigned and there is dispute about whether or not the resignation was "forced" within the meaning of s.386(1)(b) of the Act. The Full Court in Milford at [59] also considered it plain that that the length of a delay, which I consider is to be understood as commencing from the expiration of the 21-day time limit,[3] must be ascertainable in order for the Commission to determine an application for an extension of time.

• [4] In this case, there is no dispute as to whether the relationship ended, with both the parties to the dispute agreeing that this occurred as a result of the Applicant's resignation in writing sent by email on 12 July 2024. In this email, the Applicant outlined she was writing to formally resign "effective immediately or with the required notice period" before later outlining "I will do my best to ensure a smooth transition and am willing to assist in any way possible during my notice period." A letter of employment dated and signed by the Applicant on 27 June 2023, recorded the Applicant's commencement date of 3 July 2023 and the requirement to provide 2 weeks' notice if she wished to terminate her employment after having completed between one and three years of service.

• [5] Having regard to Milford, I consider it permissible for me to proceed to determine the Applicant's application for an extension of time assuming, for the Applicant's benefit, that there was a dismissal when the Applicant's notice period ended on 26 July 2024, even though it might be concluded that she had resigned with immediate effect on 12 July 2024.

• [6] Therefore, for the purpose of determining this extension of time application, I am prepared to assume, without deciding, that the Applicant was "dismissed" and that the dismissal took effect on 26 July 2024. The period of 21 days in s.366(1)(a) of the Act for the Applicant to make an unfair dismissal application ended, therefore, at midnight on 16 August 2024. The Applicant's application was therefore filed 276 days outside of this 21-day period, on 19 May 2025. As such, the Applicant requires the Commission to allow her an extension of time (s.366(1)(b)).

• [7] The Act allows the Commission to extend the period within which an application under s.365 of the Act must be made only if it is satisfied that there are "exceptional circumstances", taking into account the factors in s.366(2)(a) to (e). Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[4] Exceptional circumstances may 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 can be considered exceptional.[5] The requirement that the matters outlined in s.366(2)(a) to (e) be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters in the context of the Applicant's application for an extension of time after making the following ruling as to process.

• [8] When making the application, the Applicant nominated her email address for correspondence in the Form F8. At all times, the correspondence from my Chambers to the Applicant has been sent using this nominated email address. On 12 June 2025, I made Directions for the filing and service of material that were emailed to the Applicant. I also listed the application for a determinative conference/hearing on 21 July 2025, notifying the Applicant in relation to this with a Notice of Listing sent by email on 12 June 2025. On 26 June 2025, the day her materials were due, the Applicant sent an email to my Chambers making a request for a further 4 weeks within which to file and serve her material. This was granted and I issued Amended Directions on 27 June 2025 that provided the Applicant until 3pm on 24 July 2025 to file and serve her material. These Amended Directions were also sent to the Applicant's nominated email address, together with advice that the determinative conference/hearing would be relisted to 18 August 2025. A new Notice of Listing confirming that the determinative conference/hearing would be taking place on 18 August 2025 was subsequently emailed to the Applicant on 1 July 2025. Despite these accommodations, the Applicant provided no material in response to the Directions and Amended Directions. Nor did she appear at the determinative conference I conducted on 18 August 2025, despite being asked to confirm her attendance in advance and a telephone call having been made to her by my Associate at the listed time. Having regard to these matters, I am satisfied that the Applicant was on notice of the requirements under my Directions and Amended Directions and that she was aware that the matter would be proceeding at 2.00pm on 18 August 2025. Accordingly, I will proceed to determine the application for an extension of time having regard to the material on the Commission's file.

• [9] The Act does not specify what reason for the delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all the circumstances must be considered.[6]

• [10] The delay required to be considered is the period beyond the prescribed 21-day period for making an unfair dismissal application. It does not include the period from 26 July 2024 to the end of the 21-day period, which in this case ended at midnight on 16 August 2024. However, the circumstances from the time of the asserted dismissal must be considered when assessing whether there is a credible reason for, in this case, the 276-day delay, or any part of that delay, beyond the 21-day period.[7]

• [11] In the Form F8, the Applicant outlined that her application was unintentionally filed late due to her psychiatric and physical incapacity. The Applicant relies on the conditions described in her "IMEs and treating specialist letters." She has attended two Independent Medical Examinations (IMEs). The Applicant was examined by Dr Robert McCartney, Occupational Physician, on 2 May 2025. Dr McCartney noted the advice of the Applicant that she had been consulting a psychologist weekly and a psychiatrist every 6-12 months and diagnosed her as having work-related exacerbation of pre-existing endometriosis and adjustment disorder with mixed depressed mood and anxiety.[8] The Applicant was also assessed by Dr Nitin Dharwadkar, Consultant Psychiatrist, who provided a report dated 14 May 2025.[9] Dr Dharwadkar diagnosed the Applicant as having an adjustment disorder with mixed anxiety and depressed mood. While the Applicant reported forgetfulness and difficulties with concentration, Dr Dharwadkar noted the Applicant was able to recollect information, "attend to matters", change the focus of attention and organise a "communicative and chronological account of the experience",[10] albeit he also suggested her resilience and cognitive functioning could improve and suggested further assessment of a number of characteristics, including her ability to maintain focus. The Applicant also filed a 'Psychology Support letter' from Aysha Umair, Psychologist, dated 15 May 2025, in which it was outlined that the Applicant had "reduced overall functioning", having presented with symptoms which included workplace-related anxiety, anticipatory fear, recurrent panic attacks, emotional dysregulation, mood volatility and cognitive difficulties, including brain fog and poor concentration.

• [12] The Applicant completed a workers' compensation claim form on 29 March 2025 and this was received by the insurer on 30 March 2025. The claim was rejected by letter dated 28 April 2025[11] because the insurer did not consider the Applicant's injury had predominantly arisen out of, or in the course of, her employment. At the determinative conference, the Respondent advised that the workers' compensation claim remained rejected, notwithstanding the reports of Dr McCartney and Dr Dharwadkar received after 28 April 2025.

• [13] The Applicant asserts that she lodged her application as soon as she had regained functional capacity and received "the necessary medical documentation." When seeking an extension of time to file her material in response to my Directions dated 12 June 2025, the Applicant also cited a combination of her "serious ongoing health issues and an inability to secure legal representation in time" and asserted that her "multiple" hospital admissions, chronic disability and mental health injury have severely impacted her capacity to meet procedural deadlines. The Applicant made specific refence to having been hospitalised between 22 and 27 April 2025[12] and outlined that during this period, she was under active psychiatric and medical treatment and therefore unable to prepare or file legal documents.

• [14] I accept that there were probably some periods during which the Applicant's level of functioning may have been impaired to such an extent that preparing a Form F8 was beyond her. These would have included the period of her hospitalisation from 22-26 April 2025. However, the Applicant produced no contemporaneous accounts that cover any of the period after 16 August 2024 until the submission of her workers' compensation claim on 30 March 2025 and while there are medical reports pertaining to the last few weeks of the 9-month delay, there was no imperative for the Applicant to wait for these before filing the Form F8. I also note that a further 49 days then passed before the Applicant lodged her Form F8. I further observe that while Dr Dharwadkar suggested in his report dated 14 May 2025 that the Applicant's resilience and cognitive functioning could improve and her ability to maintain focus may, at that stage, have been compromised, the Applicant was able to complete and file the Form F8 just 5 days later. Indeed, the Applicant was previously able to complete a workers' compensation claim form on 29 March 2025 and lodge it the next day.

• [15] As to the various medical reports that were produced, these could not be tested and nor could the Applicant's account of her psychiatric and physical incapacity in the months following her resignation. The 276-day delay in this case is not insignificant and I am not persuaded that the material before the Commission establishes that the Applicant had a medical condition that rendered her so debilitated that she could take no steps whatsoever to make an application after having notified the Respondent of her resignation, either during the immediate 21-day period that followed, or at some earlier stage during the ensuing 9 months.

• [16] To the extent the Applicant relies on an inability to secure legal representation, I do not consider this to be acceptable or reasonable explanation given the length of the delay. The Applicant had ample time to obtain legal advice and did not need to wait. Further, applications to the Commission can be and are routinely made without legal or other professional advice by reference to the Commission's website. That website is replete with material designed to assist members of the public to prepare and lodge applications or obtain assistance.

• [17] Having regard to the evidence before me, I am not persuaded there were circumstances within the 21-day period prescribed for making the application that provide a credible reason for the 276-day delay. While I accept the Applicant's capacity to complete and file an application was compromised during some periods, I do not consider there was an acceptable or reasonable explanation that accounts for the 276-day delay. I do not consider that the Applicant's medical circumstances constitute an acceptable or reasonable explanation for the 276-day delay in this case. The absence of an acceptable or reasonable explanation weighs against granting an extension of time.

Action taken to dispute the dismissal - s.366(2)(b)

• [18] I have noted that in her workers' compensation claim form dated 29 March 2025, the Applicant asserted that she was forced out of work due to the Respondent's failure to adjust her duties but other than lodging her general protections dismissal application, there was no action taken by the Applicant to dispute her dismissal after it took effect in the form of dialogue or correspondence with the Respondent. This consideration is a neutral consideration

• [19] The Respondent submitted it would suffer prejudice if the Applicant were allowed to proceed. It submits the significant delay has compromised its ability to gather evidence and obtain reliable witness accounts because memories have faded and the relevant documentation may no longer be readily accessible. The Applicant made no submission that there is prejudice to the Respondent. The Commission's consideration of this criterion looks to prejudice beyond the usual requirement of having to respond to a claim. Despite its submissions, I note the Respondent has nonetheless been able to produce a number of witness statements that address the background facts underlying the matters in dispute.[13] I therefore cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. However, the mere absence of prejudice is not in my view a factor that would point in favour of granting an extension of time. The consideration is a neutral one.

• [20] I am required to "take into account" the merits of the application in considering whether to extend time so some assessment of the merits must be made. However, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding.

• [21] The Applicant alleges she was forced to resign following prolonged discrimination directly related to her diagnosed, severe endometriosis. The Applicant asserts that despite supporting medical documentation, her request for lawful workplace accommodation, including flexibility, time off during flare-ups and regular access to toilets, was ignored and actively obstructed by the Respondent's management. The Applicant further alleges that her probationary period was extended despite her high performance and that she was "penalised" in a formal performance review for taking medically required breaks. She also claims she was denied toilet access, flexibility, and medical leave during flare-ups and was in fact threatened with disciplinary action for attending medical appointments. The Applicant contends that despite her restrictions, she was forced to lift heavy items and that she was isolated, overworked and intimidated until she was "medically unable to continue working".

• [22] The Respondent submits that the Applicant voluntarily resigned and argues she has not identified any specific conduct or individual that compelled her resignation. The Respondent contends it took proactive and reasonable steps to support the Applicant and denies her allegations that she had to handle or lift heavy stock, was restricted in accessing toilet facilities and was not able to attend medical appointments during work hours. The Respondent instead asserts that in addition to having reviewed Safe Work Australia guidance on endometriosis provided by the Applicant, it requested medical documentation to inform appropriate accommodations. The Respondent also rejects the suggestion that the Applicant was forced to resign due to having had extended personal leave and, in rebuttal, relies on having made regular efforts to support the Applicant during the extended period of personal leave it afforded her in excess of her legal entitlement, and the communication it maintained during these periods. The Respondent argues that despite its efforts checking in following medical appointments and procedures, the Applicant failed to engage in consistent communication and provided vague information regarding her capacity to return to work. The Respondent also relies on the determination of the workers compensation insurer that the Applicant did not sustain any injury in the course of her employment, or as a result of the Respondent's conduct.

• [23] The arguments and counterarguments relating to whether the Applicant's dismissal was in breach of the general protections provisions would most certainly be further developed and tested and the merits of the case would depend on the factual findings made by a court after hearing the evidence. I am not able to make any firm assessment of the merits and because I do not consider the merits to tell for or against an extension of time, I regard them as a neutral consideration.

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

• [24] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. The Applicant did not bring to my attention any relevant matter concerning this consideration. The Respondent submitted there are no individuals in a similar position to the Applicant. Cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. This is a neutral consideration.

• [25] The requirement is that there be exceptional circumstances before time can be extended under s.366(2) of the Act. This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is "fair" to do so. Having considered each of the considerations in s.366(2) of the Act, I have found paragraphs (b) - (e) are neutral, while paragraph (a) weighs against the granting of an extension. Having considered these factors collectively, I am not satisfied that that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2).

• [26] Accordingly, I dismiss the application of the Applicant to the Commission to deal with a general protections application involving dismissal. An order[14] to that effect will be issued with this decision.

Ms Ruby Yung and Ms Cindy Chen for Ralph Lauren Pty Ltd.

[1] [2020] FCAFC 152; (2020) 279 FCR 591.

[2] [2025] FWCFB 173.

[3] See also Graham Taylor v Department of Justice and Community Safety [2025] FWCFB 173 at [66].

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

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

[7] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

[12] The heavily redacted discharge summary produced to the Commission by the Applicant disclosed a discharge date of 26 April 2025 - see Digital Court Book (DCB) at 49.

[13] Witness Statement of Daniel Salic dated 23 April 2025 (DCB 123) and Witness Statements of Joanna Galatopoulos dated 23 April 2025 and 7 August 2025 (DCB 127 and 147).

[14] PR790854.

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