s.365 - General protections

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

• [1] Hyoeun Won commenced employment with Nongshim Australia Pty Ltd as an SCM Assistant on 7 October 2024. Her employment was subject to a six month probation period. On 28 March 2025, during that probation period, Nongshim terminated Ms Won's employment. She was told that she was "not a good fit" for the company.
• [2] On 3 April 2025, Ms Won sent an email to Tom Park, Nongshim's Managing Director, requesting clarification regarding the reasons for her dismissal. In her email, she stated that being told that she was "not a good fit" was insufficient and unfair and she asked for more detailed reasons for the decision to dismiss her. She also criticised the company for not providing her with feedback on her performance or opportunities to improve during her probation period, and for effecting her dismissal in a way that did not permit her to farewell her colleagues.
• [3] Mr Park sent an email to Ms Won in response on 4 April 2025. He provided some further information as to the reasons for Ms Won's dismissal.
• [4] Later on 4 April 2025, Ms Won sent a further email to Mr Park. She disputed the reasons for dismissal that Mr Park had given in his email. She requested further information regarding the concerns that had resulted in her dismissal, and also in relation to Nongshim's performance management and decision-making processes.

• [5] Mr Park did not respond to that email.

• [6] On 21 April 2025, Ms Won made an application to the Fair Work Commission under section 365 of the Fair Work Act 2009.[1] She alleged that her dismissal contravened the general protections provisions in Part 3-1 of the Act.
• [7] An application under section 365 must be made within 21 days after the dismissal took effect, unless the Commission allows a further period.[2] The 21-day period ended on 18 April 2025. Ms Won requires the Commission to allow her an extension of time to file the application. She applies for such an extension
• [8] Nongshim opposes the Commission granting Ms Won an extension of time.

• [9] To grant Ms Won an extension of time, I must be satisfied that there are "exceptional circumstances", taking into account:[3]
  • (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.[4] In this case, the delay is three days;

(2) any action taken by Ms Won to dispute the dismissal;

(3) prejudice to Nongshim (including prejudice caused by the delay);

(5) fairness as between Ms Won and other persons in a like position.

• [10] These considerations are matters which the Commission must take into account rather than conditions to be satisfied.[5]
• [11] 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.[6] Exceptional circumstances may include:

• (3) a combination of ordinary factors which, when taken together, are seen as exceptional.[7]

• [12] The test of "exceptional circumstances" establishes a high hurdle for an applicant for an extension.[8] It is for Ms Won to demonstrate that exceptional circumstances exist.[9]
• [13] 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.[10]
• [14] 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 Ms Won an extension of time?

• [15] For the following reasons, the answer to the first question is no. There is no need to address the second question.

Why I have decided that there are not exceptional circumstances

• [16] I will explain my decision by reference to the criteria at [9] above.

• [17] Ms Won does not necessarily have to provide a reason for the entire period of the delay.[11] She 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.[12]
• [18] Ms Won's explanation for the delay may be summarised in this way:

(1) Ms Won had never previously been dismissed from a job. Her dismissal left her feeling "mentally exhausted and unmotivated" and "powerless and deeply hurt". She "needed time to process what had happened".

(2) After several days, Ms Won determined to seek a clear explanation as to why she had been dismissed. This resulted in the email correspondence with Mr Park referred to above. She allowed time for Mr Park to respond to her email of 4 April 2025, allowing extra time to take into account the Easter holiday period.

(3) When she did not receive a response, Ms Won "started reflecting more on the situation". She understood the letter of termination she had received to reflect a final date of 4 April 2025, but she was told on 28 March 2025 to leave immediately and that she would receive a payment in lieu of notice. The caused her to question the fairness of the process.

(4) Ms Won began to "research [her] rights". It was then that she learned of the 21-day time limit. She acted promptly once she became aware of it.

• [19] I am not persuaded that these arguments support a finding of exceptional circumstances, for several reasons.
• [20] First, it does not assist Ms Won that she was unaware of the 21-day time limit. It is well accepted that mere ignorance of the law does not support an extension of time.[13]

• [21] Second, as Nongshim submitted, it is common for an employee to feel emotional distress following their dismissal. Nothing in Ms Won's material suggests that her reaction to her dismissal was necessarily out of the ordinary. In any event, she obviously had the emotional capacity to correspond with Mr Park on 3 and 4 April 2025. This was two weeks before the 21-day time limit expired. I am also mindful that in her written evidence, Ms Won stated: "I had suspected for weeks that the company might terminate me, so I was not entirely surprised by the [termination] meeting."

• [22] Third, I do not see that the letter of termination could properly have raised any concerns or confusion. It was dated 28 March 2025 and referred to Ms Won's employment being "terminated effective immediately". It stated that she would receive a payment in lieu of notice. The date of 4 April 2025 was said to be the date by which she would receive payment in lieu of notice and for accrued statutory entitlements. It was not stated to be her "final date".

• [23] Fourth, while I accept that Ms Won chose to wait for a response from Mr Park, there is no reason why she could not have "researched her rights" at the same time. Further, she had two weeks after she last corresponded with Mr Park to file her application in time. Even allowing for the Easter holidays, I do not consider that Ms Won has properly explained that delay.

• [24] Having regard to all of the circumstances, I am not satisfied that Ms Won has provided an acceptable explanation for the delay. That argues against a finding of exceptional circumstances.

• [25] It will be relevant if an employee has taken action 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]
• [26] There is no question that Ms Won disputed her dismissal in her emails to Mr Park of 3 and 4 April 2025. That provides some support for a finding of exceptional circumstances.

Would Nongshim suffer prejudice (including prejudice caused by the delay)?

• [27] Nongshim made no submissions that it would suffer any 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.

• [28] For present purposes, it is sufficient for Ms Won to show that her 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]
• [29] Ms Won's application is centred on the unfairness of her dismissal. In summary, she contended that:

(1) Nongshim had not provided any evidence to her to support the performance concerns that it claims warranted her dismissal;

(2) in any event, Nongshim had never raised with her any concerns regarding her performance. It follows that even if they could be substantiated, she had not been given an opportunity to address them or to improve;

(3) the reason that Nongshim gave for its decision - that she was "not the right fit" - was vague and uncertain, adding to the sense of grievance she felt following the dismissal; and

(4) the manner in which Nongshim effected her dismissal compounded its unfairness. She was not given a chance to conduct a handover of her work or to say farewell to her colleagues.

• [30] It is unclear how Ms Won argues that these contentions demonstrate or give rise to a breach of Part 3-1 of the Act. All that Ms Won says in that regard is contained in the following statement in her application:

"Throughout my probation period, I was not offered any formal meetings or feedback regarding my performance. This lack of communication denied me the opportunity to address any concerns or improve, which I believe breaches my workplace rights."

• [31] I have significant doubt that "the opportunity to address any concerns or improve" constitutes a "workplace right", as that term is defined in section 341. Even if it did, it is not possible to see from Ms Won's evidence and submissions how she alleges that she was subject to adverse action in breach of section 340(1). Her arguments seemed more tailored to the question as to whether her dismissal was unfair within the meaning of Part 3-2 of the Act.

• [32] On the information available to me, I consider that the merits of Ms Won's application are limited, if not poor. That argues against a finding of exceptional circumstances.

Fairness as between Ms Won and other persons in a like position

• [33] 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 Ms Won 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]
• [34] Neither party brought to my attention any relevant matter concerning this consideration.
• [35] Ms Won did not demonstrate that her application is so sufficiently different to like matters in extension of time hearings which have come before the Commission that I should treat her differently. It would be unfair to other applicants whose applications for extensions of time have been refused by the Commission to treat Ms Won in a different manner. This weighs against a finding of exceptional circumstances.

• [36] Having regard to the matters discussed above, I am not satisfied that exceptional circumstances exist. It follows that there is no basis on which I can grant Ms Won the extension of time she seeks.
• [37] Ms Won's request for an extension of time to file her unfair dismissal application is refused.

[1] All references to legislative provisions in this decision are to provisions of the Act.

[2] Section 366(1)

[3] 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].

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

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

[6] 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).

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

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

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

[10] 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]

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

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

[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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