Fair Work Commission|2025-08-25

James Mulready v Joblink Plus Limited [2025] FWC 2203 (25 August 2025)

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

[1] On 25 June 2025 Mr James Mulready (Applicant) filed a Form F8 application (Form F8) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal under Part 3-1 of the of the Fair Work Act 2009 (Cth)(Act). The respondent in the matter is Joblink Plus Limited (Respondent).

[2] Section 366(1) of the Act provides that an application under s.365 must be made:

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

(b) within such further period as the Commission allows under s.366(2) of the Act.

[3] The Applicant commenced employment with the Respondent on 1 April 2025. It is not in contention that the Applicant was dismissed from his employment with the Respondent just over two months thereafter on 3 June 2025.

[4] Questions arise as to whether the Applicant made his application within 21 days of the date of his dismissal and, if not, whether an extension of time for making the application should be allowed.

[5] Section 366(2) of the Act provides that the Commission may allow a further period if it is satisfied that there are exceptional circumstances taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness between the person and other persons in a like position.

[6] A hearing took place on 19 August 2025 to determine whether to allow an extension of time for making the application. The Applicant filed submissions about this on 30 July 2025 and 11 August 2025 and the Respondent filed submissions on 11 August 2025. The Applicant also filed various materials on 3, 4 and 10 July 2025.

[7] The evidence before the Commission establishes that:

At 5.29 pm on 20 June 2025, and within 21 days of his dismissal, the Applicant lodged a Form F9 Application seeking that the Commission to deal with an unlawful termination dispute (Form F9).
At 6.13pm on 20 June 2025 the Applicant lodged a Form F8 application seeking that the Commission deal with a general protections dispute involving dismissal under Part 3-1 of the Act (First Form F8).
The Fair Work Commission's registry staff called the Applicant on 25 June 2025, one day after the 21 day period had passed, and had a conversation with the Applicant. The Applicant's phone records indicate that the Applicant was on the phone for over 20 minutes during this call.

[8] The Applicant's gave evidence that he made a mistake in filing the Form F9 and, upon realising this, filed the First Form F8 a short time thereafter.

[9] The Applicant said that during his call with the Commission's registry staff on 25 June 2025, he was "instructed that both the F9 and F8 forms had to be cancelled, and a new application created, citing lateness as the reason."

[10] It is unlikely that the Commission's registry staff "instructed" the Applicant to do anything however I accept that they may have pointed out an obvious problem with the Applicant attempting to make two applications to deal with his dismissal. This is because s.725 of the Act states that:

"A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies."

[11] In submitting his Form F9, the Applicant was making an unlawful termination application (see s.730). This meant that he was then not able to make a general protections application in relation to his dismissal (see s.727). By lodging the Form F9, the Form F8 could not then be made, and it is likely that the registry staff explained this to the Applicant. It is likely that the Applicant disclosed that he did not mean or want to make an unlawful termination application and the registry staff understood this to mean he wanted to discontinue the unlawful termination application he had made in lodging the Form F9. I consider this constituted a telephone discontinuance.

[12] Having discontinued the Form F9 application and having not validly made a Form F8 application in lodging his First Form F8, the Applicant was then in a position where he had to lodge another Form F8 to make a general protections application (Second Form F8). The Applicant promptly did so on 25 June 2025 following the phone call from the Commission's registry staff but by this stage the application was a day late.

[13] The application currently before the Commission was made 22 days after the dismissal took effect and the Applicant therefore requires an extension of time if the application is to proceed.

Section 366(2)(a) - the reason for the delay

[14] The Applicant attributes the delay to the Commission's administrative processes.

the application presently before the Commission is not the same application submitted on 20 June 2025;
the Commission's direction to withdraw and relodge was necessitated by the Applicant's own procedural error in submitting multiple forms, including an incorrect one;
the Applicant did not take steps to clarify or rectify the issue prior to the expiration of the statutory period;
the Commission's administrative processes do not constitute "exceptional circumstances' within the meaning of s.366(2) of the Act;
the Applicant was not misled or prevented from lodging a valid application within time;
the Applicant's reliance on the submission of the First Form F8 is misplaced and the instruction as taken by the Applicant to withdraw and relodge indicates that the original application was not accepted as validly made;
the Applicant's failure to ensure a valid application was before the Commission by 24 June 2025 is not attributable to any fault of the Commission;

• there is ample authority for the proposition that commencing the wrong form of application is not an exceptional circumstance. In this regard the Respondent referred to decision of the Commission in Singh v Dai Staff Pty Ltd.[1]

[16] It is regrettable that by the time the registry staff contacted the Applicant the 21 day period had passed, however the Commission deals with a high volume of matters and matters are often filed close to the end of the 21 day period such that contact within the 21 day period about problems with applications cannot be guaranteed. The reason for the delay is not attributable to any fault of the Commission. Rather, it is apparent that the reason for the delay is because the Applicant:

made a mistake in making an unlawful termination application in lodging a Form F9 with the Commission;
realised he made a mistake and immediately sought to correct it by lodging the First Form F8, which was the correct form;
was not able to make a general protections application in relation to his dismissal until he had discontinued the Form F9;
was not aware of this until he had spoken to the Commission's registry staff on 25 June 2025 and he promptly filed the Second Form F8 that day, the application which is the subject of these proceedings.

[17] Singh v Dai Staff[2] involved circumstances where the applicant in that matter lodged an unfair dismissal application but had not met the minimum employment period and, after the Commission brought this to his attention, made a general protections application out of time. In that matter Commissioner Perica considered the matter of Young v Braziliant.[3] In that matter:

The applicant's employment ceased on 24 August 2018 and for an application to have been made on time it needed to be made by 14 September 2028.
The applicant lodged an unfair dismissal application form on 27 August 2028.
The respondent objected to the unfair dismissal application on the grounds that the applicant had not completed the minimum employment period.
On 27 September 2018 the Commission advised the applicant that the application had been listed for hearing to deal with the objection and she was informed about the Commission's Workplace Advice Service.
On 4 October 2018 the applicant discontinued her unfair dismissal application after receiving legal advice however filed another unfair dismissal form in error which indicated that the application was intended as a general protections application.
The second unfair dismissal application was discontinued and on 8 October 2018 the applicant made a general protections application.

• The applicant submitted that she was always endeavouring to make a general protections application, only obtained legal advice late in the process and that the late lodgement was merely correcting an earlier incorrect unfair dismissal application made on 27 August 2018.[4]

[18] Commissioner Wilson accepted that the second unfair dismissal application form was lodged in error and was intended as a general protections application[5] however found that the first application was only ended on 4 October 2018 when it became apparent to the applicant that her application had no hope of success with the most likely finding that she had not met the minimum employment period.[6] The Commissioner found that it was only then that the applicant attempted to switch jurisdictions and make a general protections application.[7] In this regard Commissioner Wilson said, in reaching the conclusion that the applicant had not put forward an acceptable explanation for the delay:[8]

"[29] The Commission has held that mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.[9] It is also the case that it is not of the ordinary course, or unusual, or special, or uncommon for a person to be acting on their own without advice, or to be called upon to make a choice about the form of action against a former employer. There is ample information available through the Commission's website and elsewhere that sets out the merits of the respective forms of application that may be made. Care should be taken by any person contemplating making an application after the end of their employment about which type of application mat be made. The fact that a person insufficiently reads the available material and ends up making the wrong form of application is also not an exceptional circumstance."

[19] In Singh v Dai Staff Commissioner Perica observed that the difference between the mistake of the applicant in Young v Braziliant compared with the mistake of Mr Singh was Mr Singh's claim that his mistake was inadvertent because he had not intended to file an unfair dismissal claim.[10] The Commissioner did not consider the difference to be material to the sufficiency of the mistake or the reason for delay and said:[11]

"[23] I adopt entirely the reasoning of Commissioner Wilson in paragraph [29] of Braziliant. The inadvertent mistake made by Mr. Singh cannot be regarded as exceptional. Mistakes in the filing of applications are a regular occurrence in the Commission. As was pointed out by Commission Wilson, it was incumbent on Mr. Singh to ensure he had filed the correct form. During the hearing, Mr. Singh reminded me that he had been before me previously on an earlier s 365 application. Given that he had successfully filed a s 365 application before it makes his failure to navigate the Commission website on this situation less understandable."

[20] I accept that mistakes in the filing of applications are a regular occurrence. However, in this matter the Applicant knew he had made a mistake when he lodged the Form F9 headed "Application for the FWC to deal with an unlawful termination dispute" and upon realising his mistake, took immediate steps to deal with this by filing the correct application form type 44 minutes afterward and within 21 days of his dismissal. The First Form F8 sets out the same allegations concerning the dismissal as the Second Form F8. However, the Applicant was caught out by a legal technicality in that he needed to discontinue the Form F9 application filed 44 minutes earlier before he could make his general protections application due to the operation of s.725 of the Act. The circumstances of this matter are somewhat unusual and are not analogous to those in Singh v Dai Staff and Young v Braziliant. I find the reason for the delay weighs in favour of an extension of time.

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

[21] The Applicant submitted that he has actively pursued his claim without undue delay, taking immediate steps to lodge the correct application once he identified his initial error in lodging the Form F9 and in making a timely Form F8 application.

[22] The action taken by the Applicant to dispute the end of his employment includes the lodgement of the Form F9 and First Form F8 within 21 days of his dismissal and the Second Form F8 on 25 June 2025, the same day the Applicant was alerted to his error. I consider this factor weighs in favour of granting and extension of time.

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

[23] The Applicant submitted that given the timely initial lodgement of the Form F8, there is no prejudice to the Respondent caused by any subsequent administrative processing or re-lodgement instruction from the Commission. The Applicant submitted that the Respondent was on notice of the general protections claim from the Applicant's timely submission.

[24] The Respondent submitted that the statutory timeframe in s.366(1) is strict and reflects the legislative intent to provide finality and certainty in employment related dispute. The Respondent submitted it would be prejudiced by the acceptance of an out of time application, particularly where the delay arose from the Applicant's own procedural missteps.

[25] The Applicant took timely measures to correct the error and submit the Second Form F8 on the day the Commission's registry staff told him he needed to discontinue the Form F9 and relodge, which was only one day past the 21 day period. In these circumstances I do not consider there would be any prejudice to the Respondent if an extension of time is allowed. This is a neutral factor in my consideration.

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

[26] The Applicant submitted that the merits of the application are substantial, involving allegations that the dismissal was connected to the Applicant's expressed opinions and attempts to address perceived inappropriate and non-inclusive workplace conduct immediately following protected disclosures.

[27] In his application the Applicant submitted that:

on 3 June 2025 his employment was terminated with the reason provided being that he was "not fitting in with the team";
this dismissal occurred immediately after he raised significant concerns with his manager regarding an uncomfortable and inappropriate workplace conversation initiated by a colleague after a Sorry Day event;
his manager arranged for a an executive to speak to him but the discussion did not address his concern and instead the executive appeared to agree with the colleague's perspective;
he reported an instance of bulling to his manager and received no further response about his complaints;
his dismissal followed the complaints without prior warning, performance management or discussion of the specific issues related to not fitting in with the team;
given the sudden nature of the dismissal, vague reasons provided and its timing immediately after he made complaints, he believed the termination was directly connected to his expressed opinions and attempts to address what he perceived as inappropriate and non-inclusive workplace conduct.

[28] In its response to the application the Respondent acknowledged that the Applicant raised a concern about a workplace conversation following a Sorry Day event and said the concern was taken seriously and referred to an executive leader. The Respondent submitted that:

the executive leaders' discussion with the Applicant was intended to provide context and support for further learning around the Respondent's commitment to Reconciliation, trauma informed practice and ethical decision making, not to dismiss or invalidate the Applicant's perspective;
the Applicant acknowledged this to his leader in two text messages;
the Applicant's concern was addressed though appropriate channels;
the dismissal was not connected to the Applicant's views and no disciplinary action was taken against the Applicant for expressing his views;
the reason provided for the dismissal, being that the Applicant was "not fitting in with the team" reflected broader concerns about the behaviour, conduct, collaboration, communication, and cohesion and was not based on political opinion.

[29] The Respondent also provided the following account of events in relation to the Applicant's dismissal:

on 2 June 2025, the Applicant was requested to attend a meeting scheduled for 3 June 2025 with their leader and human resources to address ongoing concerns about his behaviour and conduct;
the decision to terminate the Applicant's employment was based on behavioural issues that had been observed and documented over a period of time and which were unrelated to any political or socio-political views expressed by the Applicant;
on 3 June 2025, during the scheduled meeting, the Applicant's behaviour escalated to an aggressive and confrontational level and included verbal abuse and unreasonable behaviour that posed a risk to the health and safety of staff;
due to the escalating nature of the incident and concerns for staff wellbeing, the Applicant was formally requested to leave the premises;
it was clearly communicated that continued inappropriate behaviour would result in police involvement but despite this the Applicant directed further abuse toward staff before leaving and subsequently returned to the site to continue the abusive conduct;
the Applicant's behaviour created a hostile and unsafe work environment and further supported the decision of the Respondent to terminate the Applicant's employment during his probationary period.

[30] In its response to the application the Respondent submitted:

the termination of the Applicant's employment was lawful and was not in breach of s.351 of the Act;
the decision to terminate the Applicant's employment was based on legitimate and on-discriminatory grounds and was not based on the Applicant's political opinion;
there is no evidence to suggest that the Applicant's political opinion was a substantial or operative reason for the dismissal;
the Aplicant was not subjected to humiliation or reputational harm beyond what may ordinarily arise from a lawful termination;
there is no basis for an award or general damages.

[31] Having regard to the matters referred to above, I find that the merits of the application will necessarily turn on the evidence and developed legal arguments and that it is not possible to make an assessment of the merits of the application based on the limited material before me. Accordingly, this matter also is a neutral factor in my consideration

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

[32] The Applicant submitted that it would not be fair between the Applicant and other persons in a like position to penalise the Applicant for delays caused by the Commission's own administrative processes, particularly when the initial correct application was made within the statutory timeframe.

[33] I have earlier distinguished the circumstances in this matter from those in Singh v Dai Staff Pty Ltd.[12] Neither party brought to my attention any other relevant matters currently before the Commission or others previously decided by the Commission. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

[34] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding the reason for the delay and action to dispute the dismissal, which I consider weigh in favour of an extension of time in the circumstances of this matter, and the balance of the considerations being neutral considerations.

[35] 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.[13] 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.[14]

[36] On balance, and taking into account all of the factors in s.366(2), I am satisfied that there are exceptional circumstances to warrant an extension of time. Pursuant to s.366(1)(b) of the Act, I allow an extension of time for the making of the application until 25 June 2025, being the date on which the application was made.

[37] Having allowed the extension of time I will conduct a conference to see if I can assist the parties in resolving the matter via a process of conciliation or mediation.

Ms G. Nankivell, Head of Human Resources, appearing for the Respondent

[1] Singh v Dai Staff Pty Ltd [2025] FWC 1940.

[2] Singh v Dai Staff Pty Ltd [2025] FWC 1940.

[9] Nulty Blue Star Group [2011] FWAFB 975.

[10] Singh v Dai Staff Pty Ltd [2025] FWC 1940 at [22].

[11] Singh v Dai Staff Pty Ltd [2025] FWC 1940 at [22] - [23].

[12] Singh v Dai Staff Pty Ltd [2025] FWC 1940.

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

[14] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

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James Mulready v Joblink Plus Limited [2025] FWC 2203

At a glance

Court

Decision date

Source

Judgment (77 paragraphs)

James Mulready v Joblink Plus Limited [2025] FWC 2203 (25 August 2025)

Parties

Legislation Cited (1)