s.365 - General protections

Relationships Australia (QLD) T/A Relationships Australia Queensland

Application to deal with contraventions involving dismissal - Application made beyond 21-day time limit - Applicant dismissed shortly after filing non-dismissal application - Applicant provided inaccurate information by Commission staff member - Applicant aware of timeframe for lodgement - Applicant did not wish to make concurrent applications - Reasons for delay not supportive of extension of time - Action taken to dispute dismissal - No exceptional circumstances - Application dismissed

• [1] On 15 November 2024, Ms Helen Zhu made an application to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal.

• [2] Ms Zhu was dismissed from her employment with Relationships Australia (QLD) T/A Relationships Australia Queensland (the Respondent) on 4 October 2024 after having been absent from work for a period of around six months. To be within the 21-day time limit to bring a s.365 application, the application needed to have been made by 25 October 2024. The application has been made 21 days out of time. Ms Zhu therefore seeks an extension of time within which to bring her application.

• [3] Directions were issued, providing the parties with an opportunity to file witness statements and submissions. A hearing was convened by video using Microsoft Teams on 11 March 2025. Ms Zhu appeared on her own behalf, and the Respondent was represented by Mr Luke Donaldson, Head of Quality, Risk and Compliance and Ms Suzanne Grant, Head of People and Culture.

• [4] Ms Zhu and Mr Donaldson filed witness statements and gave evidence at the hearing.

• [5] Section 366 of the Act states:

(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."

• [6] Ms Zhu commenced employment with the Respondent as a Family Relationships Advisor on 5 March 2022. On 26 October 2023, the Respondent implemented a performance improvement plan (PIP) in respect of Ms Zhu. A further PIP was implemented on 15 January 2024, which extended until 23 February 2024.

• [7] Throughout January and February 2024, Ms Zhu refused to participate in scheduled meetings and training sessions in relation to her performance and the PIP that had been implemented. Ms Zhu considered that her PIP was unwarranted, expressing this view to the Respondent.

• [8] Ms Zhu's non-participation culminated in her being issued a formal written warning on 22 February 2024. She was then issued a formal show cause meeting invitation, to be held on 1 March 2024. This meeting was postponed to 4 March 2024, and again to 6 March 2024 at Ms Zhu's request.

• [9] On 6 March 2024, Ms Zhu provided a medical certificate to the Respondent, advising that she was unfit for work due to stress. She also lodged a workers' compensation claim alleging bullying by the Respondent's management. From 6 March 2024 to 26 September 2024, Ms Zhu continued to provide medical certificates and remained absent from work.

• [10] On 26 September 2024, noting that Ms Zhu's absence had exceeded 6 months, she had failed to engage with the Respondent regarding her return to work and refused to attend two scheduled independent medical evaluations, the Respondent issued Ms Zhu with a letter inviting her to show cause as to why her employment should not be terminated by 1 October 2024. Ms Zhu responded to this letter on 1 and 2 October 2024.

• [11] On 3 October 2024, while still employed by the Respondent, Ms Zhu filed a Form F8C - General protections application not involving dismissal with the Commission (the Non-Dismissal Application or s.372 application). In that application, Ms Zhu alleged that the Respondent had taken various forms of adverse action against her, including the imposition of the PIP and show cause process because she raised a complaint about her working conditions.

• [12] On 4 October 2024, Ms Zhu was dismissed by the Respondent, effective immediately.

• [13] Soon after midday on 17 October 2024, 13 days after her dismissal, Ms Zhu telephoned the Commission's general enquiries line. A recording of the telephone call was made and has been admitted into evidence in these proceedings. During this call, Ms Zhu advised the Commission's Client Services Representative that she had previously lodged the Non-Dismissal Application and had subsequently been dismissed. She sought advice on how she should proceed.

• [14] The Commission staff member informed Ms Zhu that her Non-Dismissal Application was allocated to Deputy President Easton's chambers, and that she should contact the Deputy President's chambers to advise that she had been dismissed. The staff member offered to provide the email address for the Deputy President's chambers. Ms Zhu asked if the email address could be emailed to her, however the staff member said that he would provide the email address orally over the phone for Ms Zhu to write down.

• [15] The email address provided to Ms Zhu by the Commission's staff member was incorrect. It is unclear how or why the staff member provided an incorrect email address and why the staff member did not email Ms Zhu as per her request. Ms Zhu attempted to send an email to the email address provided to her. The email was not delivered; Ms Zhu received an undeliverable email notification. She then forwarded this in a subsequent email to the Commission's general lodgement email address the same day. Her email included a request to be advised how to proceed with her case.

• [16] The Non-Dismissal Application was allocated to Commissioner Durham. On 23 October 2024, 19 days after Ms Zhu's dismissal, an email was sent from Commissioner Durham's chambers to Ms Zhu and Mr Chris Rutt, People Business Partner, advising that the Commissioner had taken carriage of the application. The email contained the following relevant passage:

"Chambers notes that the Applicant contacted the Commission on 17 October 2024 advising that she had been dismissed by the Respondent. As such the Applicant may wish to consider a General Protections application involving dismissal or an Unfair Dismissal application.

Please note that both applications referred to above have a timeline for lodgement, being within 21 days of the dismissal. Further, that either application will run separate to this application."

• [17] Further emails were then exchanged on 24 and 25 October 2024 between the Commissioner's chambers and Mr Rutt regarding an extension request made by Mr Rutt for the filing of the Respondent's response to the Non-Dismissal Application. Ms Zhu was included in this correspondence.

• [18] It is noted that Ms Zhu had three days, including the day the email was sent from the Commissioner's chambers to file an application within the 21-day time limit.

• [19] A conference in relation to the Non-Dismissal Application took place on 12 November 2024. The parties agree that during this conference Ms Zhu was informed of her ability to file a dismissal application under s.365 of the Act, and that she had been alerted to this in correspondence sent on 23 October 2024.

• [20] Ms Zhu attempted to lodge a dismissal application on the evening of 14 November 2024, however the application form was inadvertently left blank. Ms Zhu remedied this by filing a completed Form F8 - General protection application involving dismissal on 15 November 2024, which commenced the present application.

• [21] Ms Zhu's primary argument in relation to the reason for the delay in submitting her application was that, despite being aware of the 21-day time limit for dismissal applications, she did not become aware that she needed to lodge another general protections application until 12 November 2024.

• [22] Ms Zhu described the following steps that she took following her termination to contest the dismissal:

• after being terminated, she searched online for the Commission's website to understand what action she would need to take;
• she saw information on the Commission's website stating that where a person has lodged a non-dismissal application, and they are subsequently dismissed, the person should contact the Commission;
• she then phoned the Commission, was not told during the phone call that she should lodge a separate application, and was instead told that she should contact Deputy President Easton's chambers, which is what she attempted to do;
• she therefore assumed that her dismissal would be incorporated into the non-dismissal application she had already made; and
• when her attempt to contact Deputy President Easton's chambers was unsuccessful, she was concerned that she was unable to obtain any further information from the Commission about her dismissal, so she forwarded her email to the Commission's general lodgement email address.

• [23] Ms Zhu stated that because she contacted the Commission on 17 October 2024 in relation to her dismissal, she assumed the dismissal would be discussed at the conference for the Non-Dismissal Application on 12 November 2024. It was at this conference that she was informed that she would need to file a separate application if she wished to contest her dismissal.

• [24] Ms Zhu noted that she was informed at the conference of the email sent by the Commissioner's chambers on 23 October 2024. Following the conference, on 12 November 2024, she searched for this email but could not locate it. Ms Zhu gave evidence that she is not always online, checking emails. She said she was very tired and on 13 November 2024 she found it in her spam folder and read it for the first time. She did not provide an adequate explanation as to why she did not make the application on 13 November 2024 and instead waited until 14 November 2024 to bring the application which was ultimately blank and properly completed on 15 November 2024.

• [25] Ms Zhu submitted that even if she had found and read the email the day it was sent on 23 October 2024, she would likely still require an extension of time, as the 21-day timeframe expired on 25 October 2024. Ms Zhu did not provide an adequate explanation as to why this would be so.

• [26] During the hearing I pointed out to Ms Zhu that even if it is the case that she had not seen the email from the Commissioner's chambers on 23 October 2024 as it went to her junk email, there were a number of replies exchanged between Mr Rutt and the Commissioner's chambers in the two days following, all of which were sent to her and included the original email in the same email chain. Ms Zhu stated that she had briefly seen an email from Mr Rutt on 24 October 2024, but she did not read this email fully because she was traumatised by the past behaviour of Mr Rutt and the Respondent, and seeing the email from Mr Rutt in her inbox made her anxious and she was triggered.

• [27] Ms Zhu stated during the hearing that she saw the further response from the Commissioner's chambers sent on 24 October 2024. She said that she read this before 29 October 2024. She said she also read the further emails exchanged between Mr Rutt and the Commissioner's chambers on 25 October 2024 that day.

• [28] Irrespective of when she became aware of the emails sent by the Commissioner's chambers, Ms Zhu stated during the hearing that she was familiar with the Commission's website and processes and had read all of the relevant information on the website. She stated that after she was dismissed, she considered making a dismissal application, but did not want to, as she considered it would be a waste of the Commission's resources if she had two concurrent applications. She stated that she has a "responsibility not to waste the Commission's resources".

• [29] Ms Zhu also noted that she made an appointment with the Women's Legal Service Queensland where she had a one-hour session. She considers that they could not advise her what to do, other than to telephone the Commission.

• [30] Ms Zhu submitted that she has a "strong case", and that she has "ample evidence" demonstrating that her dismissal by the Respondent was unreasonable, unjust, and not in compliance with the Respondent's own policies and procedures.

• [31] Ms Zhu described these circumstances as "unique" and "unprecedented".

• [32] The Non-Dismissal Application was not resolved at the conference on 12 November 2024. Ms Zhu stated that the main reason for this was "the behaviour pattern of repeated fraudulent misrepresentation[s]" by the Respondent. Specifically, Ms Zhu highlighted Mr Rutt, describing him as "one of the bullies". She pointed out that Mr Rutt prepared the Respondent's written response to the Non-Dismissal Application, in spite of the fact that she had previously asked the Respondent to ensure that Mr Rutt does not have any contact with her. She repeated this request to the Commission when she saw that Mr Rutt had prepared the written response.

• [33] Mr Donaldson filed a witness statement in these proceedings. He is employed by the Respondent as the Head of Quality, Risk and Compliance, and at the time of Ms Zhu's dismissal, was the acting Head of People and Culture.

• [34] Mr Donaldson attended the conciliation conference before Commissioner Durham on 12 November 2024 where the email correspondence of 23 October 2024 was discussed. He noted that it was discussed that the 21-day timeframe had elapsed.

• [35] The Respondent submitted that the correspondence from the Commissioner's chambers acknowledged that Ms Zhu had been dismissed and had contacted the Commission about her dismissal on 17 October 2024, provided her with information on how she may contest the dismissal, and informed her of the relevant timeframes.

• [36] The Respondent submitted that Ms Zhu had the ability to lodge a dismissal application within time after receiving the correspondence from the Commissioner's chambers on 23 October 2024. Further, the Respondent submitted that any failure by Ms Zhu to review the correspondence issued to her within a reasonable period of time does not warrant an extension of time being granted.

• [37] Accordingly, the Respondent argued that exceptional circumstances do not exist in this matter.

• [38] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd,[1] where the Full Bench said:

"[10] It is convenient to deal first with the meaning of the expression 'exceptional circumstances' in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression 'exceptional circumstances' in s.394(3) and held:

'[5] The word 'exceptional' is relevantly defined in The Macquarie Dictionary as "formatting an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.'

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression 'exceptional circumstances' was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

'23. I am of opinion that the expression "exceptional circumstances" requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:

"Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances."

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CL at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25 And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:

"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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" in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.'

[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." [footnotes omitted].

• [39] For exceptional circumstances to arise, as contemplated by s.366(2) of the Act, it is not necessary that the applicant for the extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances exist.

• [40] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[2]

• [41] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[3] A decision whether to extend time under s.366(2) involves the exercise of a discretion.[4]

• [42] The reason for the delay in lodging an application is a factor that must be considered. The Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[5] The absence of an 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 an applicant's favour, though it is ultimately a question of degree and insight.[6]

• [43] A reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[7] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[8]

• [44] Ms Zhu indicated that she sought legal advice on or before 17 October 2024. She understood that it was recommended to her that she contact the Commission to advise that she had been dismissed while her s.372 application was being dealt with.

• [45] Ms Zhu considered that even though the email had bounced back from her attempt to inform Deputy President Easton's chambers of her dismissal, she had then informed the Commission in her next email that day. This is true.

• [46] The next contact Ms Zhu had with the Commission was on 23 October 2024 when the email was sent from Commissioner Durham's chambers, acknowledging the dismissal and informing Ms Zhu of the rights she had to, within the 21-day time limit, explore other applications to contest her dismissal. On Ms Zhu's own account, she read the following emails on or prior to 25 October 2024, the last day in which to bring an application within time.

• [47] Ms Zhu could not bring herself to read all of Mr Rutt's emails, as she considers that she was triggered by receiving them into her inbox. She knows that Mr Rutt was seeking an extension of time to file a response to her s.372 application. She chose not to read the emails in full, including the originating email of 23 October 2024 from the Commissioner's chambers.

• [48] Ms Zhu's assertion that she did not wish to have two applications before the Commission, being a s.372 application and a s.365 application (which are permitted to be made concurrently), because she considers it to be a waste of the Commission's resources is curious and counterintuitive. If Ms Zhu had made her application within time, there would be no need for the Commission to have issued directions, prepared a court book to be shared with the parties, convened a hearing, reserved a decision and ultimately issued a decision in respect of the application having been made out of time.

• [49] Ms Zhu's further delay between 12 November 2024 and 14 November 2024 is attributed to her not wanting to access her emails all of the time and being tired.

• [50] The reasons for the delay provided are, in my view, not reasons that are supportive of an extension of time being granted.

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

• [51] Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant's employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[9]

• [52] Ms Zhu contacted the Commission on 17 October 2024 to advise that she had been dismissed. She attempted to direct the communication to Deputy President Easton's chambers. Through no fault of her own, she was provided with the incorrect email address for the Deputy President's chambers.

• [53] The Respondent became aware on 23 October 2024, via the email sent from Commissioner Durhams's chambers, that Ms Zhu had informed the Commission on 17 October 2024 of her dismissal. Ms Zhu did request of the Commission, in her email, advice on how she might proceed with her case.

• [54] Ms Zhu's notification to the Commission asking how she might proceed with her case is, in my view, supportive of an extension of time being granted.

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

• [55] I do not consider that there would be any prejudice to the Respondent caused by the delay in bringing the application. I consider this to be a neutral factor in the determination of whether there are exceptional circumstances.

• [56] It is well established that "it will not be appropriate for the Commission 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)."[10]

• [57] In the matter of Kornicki v Telstra-Network Technology Group,[11] the Commission considered the principles applicable to the exercise the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996. In that case the Commission said:

"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."

• [58] One of the reasons asserted by Ms Zhu in the application is that she was dismissed in breach of s.352, a short-term illness or injury. It is noted that Ms Zhu's absence on unpaid leave was for a period of nearly six months, well in excess of the three-month protection afforded by s.352 of the Act. Ms Zhu's application in this respect is entirely without merit.

• [59] However, Ms Zhu has asserted that she was dismissed in respect of three other protections within the Act. There is a contest between the parties that is not capable of being resolved at this time, nor is it desirable or required for me to do so. I do not regard either case as being highly meritorious or highly unmeritorious.

• [60] My consideration of the parties' respective merits is that this is a neutral factor in the determination of whether there are exceptional circumstances.

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

• [61] The criterion of "fairness as between the person and other persons in a similar position" was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm,[12] where it was said:

"...cases 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."

• [62] I am not satisfied that the criterion of fairness between Ms Zhu and other persons in a similar position weigh strongly in favour of either party. As such, I consider it a neutral consideration.

• [63] Taking into consideration the matters I am required to take into account under s.366(2) of the Act, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

• [64] Whilst noting that Ms Zhu did make contact with the Commission within the 21-day time limit to advise that she had been dismissed and to seek direction, she was provided with that relevant direction by the Commissioner within the 21-day time limit, which due to her own omissions, she failed to act upon. I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

• [65] 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).

Accordingly, the application must be dismissed. An order [PR786158] will be issued with this decision.

[1] [2011] FWAFB 975.

[2] Smith v Canning Division of General Practice [2009] AIRC 959.

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

[4] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

[5] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36].

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 at [35]- [45].

[7] Ibid; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288.

[8] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]- [33]; and Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[10] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [36].

[11] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[12] [2015] FWC 8885 at [29].

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