s.365 - General protections

Application to deal with contraventions involving dismissal - application filed out of time - no exceptional circumstances - application dismissed.

• [1] Mr Jason Daniel Tynan made a general protections application involving dismissal pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act) on 14 March 2025 in respect of the dismissal from his employment with the respondent, RCC National Group Pty Ltd.

• [2] Section 365(1) of the Act prescribes that a general protections application involving dismissal must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2). The Form F8 application records that Mr Tynan's dismissal took effect on 20 February 2024,[1] but it is not in dispute that the dismissal in fact took effect on 20 February 2025.[2] It follows that the application was filed one day outside the 21-day statutory timeframe. Accordingly, Mr Tynan requires an extension of time if the application is to proceed.

• [3] For the reasons that follow, I am not satisfied that there are exceptional circumstances. Accordingly, the discretion to extend the time in which the application may be made is not enlivened.

• [4] The Commission has the power pursuant to s 366(2) of the Act to extend the time within which a general protections application involving dismissal can be made only if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd.[3] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 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 can be considered exceptional.[4]
• [5] Under s 366(2) of the Act, the matters the Commission must take into account in order to determine whether exceptional circumstances exist are as follows:

(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 similar position.

• [6] I consider these matters in the analysis that follows.

Reason for the delay: s 366(2)(a)

• [7] The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable or credible,[5] or reasonable[6] 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 of the circumstances must be considered.[7]

• [8] The period of the delay to be considered is the period commencing immediately after the 21-day timeframe for lodging the application has expired.[8] However, the circumstances from the time the dismissal took effect must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.[9]

• [9] In his written submissions, Mr Tynan contended that his application was filed within the 21-day statutory timeframe and refers to a discussion he had with the Commission after the jurisdictional issue had been identified. However, Mr Tynan appeared to accept at the hearing that his application was filed on the 22nd day and was therefore out of time. Mr Tynan gave evidence that the delay in lodging his application was occasioned by two matters.

• [10] First, Mr Tynan contends that he was suffering from severe shock, stress and depression as a result of the termination of his employment. He gave evidence that he spent the first weekend at home following the dismissal in tears, trying to rationalise and come to terms with his dismissal from a job that he loved. He remained confused for "a good two weeks, three weeks, even longer." Mr Tynan says that the loss of his employment has been financially, emotionally and mentally devastating, in circumstances where he felt he was doing well in his role. In written submissions,[10] Mr Tynan described a loss of confidence and self-worth and other matters that I do not consider necessary to set out in detail in this decision, although I have taken these matters into account. Mr Tynan explained that this led to physical symptoms involving weeks of viruses, high blood pressure and fatigue. Mr Tynan attended appointments with a counsellor on 7 March, 19 March, 25 March and 2 April 2025. Second, Mr Tynan relies upon the error he made in calculating the 21-day timeframe, which he submits was a simple mistake and resulted in the application being filed only one day out of time.

• [11] At the outset, I acknowledge Mr Tynan's feelings of shock and sadness following the termination of his employment with the respondent. However, there is no medical evidence before the Commission explaining the nature of any health condition Mr Tynan contends he was suffering from following his dismissal, or demonstrating that these matters (individually, or in combination) prevented him from lodging his application in the Commission at any earlier time. In the absence of such material, I am not persuaded that Mr Tynan's health following the dismissal provides an acceptable or reasonable explanation for the delay.

• [12] I have taken into consideration Mr Tynan's calculation error and his submission that the application is only one day out of time. However, I note that the Commission's website provides a range of information addressing the lodgment of applications in the Commission, including in relation to the timeframes within which to lodge them. While I accept Mr Tynan's submission that he is not familiar, nor experienced with the procedures of the Commission,[11] such unfamiliarity is not exceptional, and ignorance of one's rights will not usually provide an acceptable reason for the delay.[12]

• [13] For the reasons given, I do not find that any of the matters relied upon by Mr Tynan as reasons for the delay, individually or collectively, provide an acceptable or reasonable or credible explanation for the delay. This weighs against the grant of an extension of time.

Action taken by the person to dispute the dismissal: s 366(2)(b)

• [14] Following his dismissal, Mr Tynan enquired with the respondent about alternative employment opportunities. Mr Tynan said that the respondent did not engage positively with him about this matter and accordingly, he did not consider there to be utility in further addressing "anything" with them. It follows that I am satisfied that Mr Tynan did not take action to contest the dismissal (other than by lodging this application). As such, the respondent was not on notice that the dismissal was actively contested by Mr Tynan.[13] This weighs against the grant of an extension of time.

• [15] I cannot identify any prejudice that would accrue to the respondent were an extension of time to be granted in Mr Tynan's favour. I accept Mr Tynan's contention that the only relevant matters to consider relate to the respondent's time and costs for attending the jurisdictional hearing, and the respondent does not contest this point. However, the mere absence of prejudice to the respondent is not in itself a factor that would point in favour of the grant of an extension of time. I consider this to be a neutral factor.

• [16] For the consideration in s 366(2)(d) to weigh in favour of an extension of time, it must be shown that there is some merit in the substantive application.[14] However, an application to extend time is essentially interlocutory in nature and does not enable a fulsome examination of the substantive merits of Mr Tynan's application. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant

• [17] In his general protections application, Mr Tynan contends that the attitudes of some employees towards him changed when he disclosed a personal matter. Further, Mr Tynan says in summary that he did not receive the same training as other employees, to his detriment; his requests for help were "disregarded"; he was placed on a performance improvement plan "which did not suit the circumstances"; was excluded; and was accused of requesting a tradesperson to attend his home to perform private work at a client's expense, which he denies.[16] Mr Tynan contends that he was bullied and discriminated against.[17] Mr Tynan explained in the hearing that he has a condition which affects his attention span and had informed the respondent of this matter.

• [18] The respondent denies that Mr Tynan can establish a contravention of the general protections provisions in the manner contended, or at all. It disputes Mr Tynan's allegations of unlawful discrimination and bullying and refers to an alleged unauthorised use of its vehicles. It contends that it lost trust and confidence in the performance and integrity of Mr Tynan and exercised its lawful right to terminate the employment during the probationary period.[18]

• [19] The parties hold substantially different views as to the matters that preceded the dismissal. The allegations turn on contested points of fact, which have not been the subject of evidence before me or tested under cross-examination. Accordingly, I am unable to form a concluded view about these matters. However, I observe that Mr Tynan would need to lead evidence in support of his position that there is a relevant connection between the matters that form the basis of his application and the respondent's decision to terminate his employment, noting that the respondent rejects that its decision was for the reasons alleged. In the circumstances, I regard the merits of Mr Tynan's substantive general protections application to be a neutral factor in my assessment of whether to grant an extension of time.

Fairness as between Mr Tynan and other persons in a similar position: s 366(2)(e)

• [20] Applications to extend time generally turn on their own facts. Neither party has brought to my attention any matters of fairness relevant to this consideration. Accordingly, this factor is neutral in my consideration

• [21] The statutory time limit that applies to the exercise of a person's right to bring a general protections application involving dismissal reflects the parliament's intention that such rights be exercised promptly. The test of exceptional circumstances in s 366(2) of the Act establishes a high hurdle for an applicant for an extension of time.[19] Whether an application is lodged one day outside the statutory time limit (such as in this case) or more, the Commission must be satisfied that there are exceptional circumstances supporting an extension of time.[20]

• [22] In this case, there are no matters that weigh in favour of granting an extension of time. Mr Tynan has not provided an acceptable or reasonable explanation for the delay, nor did he take any action to place the respondent on notice that the dismissal was contested (other than by lodging this application). These matters weigh against a further period being granted. The other factors weigh neutrally. Having regard to my consideration of the statutory criteria and the conclusions reached, I am not satisfied that the matters raised amount to exceptional circumstances, either when the various circumstances are considered individually or together.

• [23] As I am not satisfied that there are exceptional circumstances, the power to extend the time in which Mr Tynan's application may be made is not enlivened.

• [24] Mr Tynan's general protections application is dismissed.

B R Belling, of Belling Legal, with permission on behalf of the respondent.

[3] [2011] FWAFB 975, 203 IR 1

[5] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974 at [9]

[6] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64 at [16]

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [39]

[8] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]

[9] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]

[10] Email to the Commission dated 4 May 2025

[12] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; 203 IR 1 at [14]

[13] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298

[14] Long v Keolis Downer (t/as Yarra Trams) [2018] FWCFB 4109 at [71]

[15] Kyvelos v Champion Socks Pty Ltd [2000] AIRC 540, Print T2421 at [14]

[19] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [14] citing Lombardo v Commonwealth [2014] FWCFB 2288 at [21]

[20] See Cem Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479, upheld on appeal in C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149

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