Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - Application made outside the 21-day timeframe - No exceptional circumstances found - Application dismissed.

• [1] On 28 April 2025, Mr Jason Duff filed an application under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a general protections dispute involving dismissal. The Respondent to Mr Duff's application is Woolworths Group Limited (Woolworths).

• [2] From the Form F8 - General protections application involving dismissal (Form F8) and the separation certificate filed by Mr Duff, it appeared that Mr Duff was dismissed effective 30 March 2025. From the Respondent's submissions, it says that Mr Duff was notified of his dismissal on 20 March 2025 and due to Mr Duff's pre-planned leave, his dismissal was effective 30 March 2025. However, at the Determinative Conference, Woolworths submitted that Mr Duff was terminated with immediate effect on 20 March 2025, and that he was not on any paid leave, and did not return to the workplace after 20 March 2025. It says that a delay occurred, and the termination was not processed until 30 March 2025. Woolworths concede that the termination date may well be 30 March, but regardless of whether it was 20 March or 30 March, the Form F8 is still late. However, noting that Woolworths advised Mr Duff by letter of his termination on, and effective from, 20 March, I consider the date of dismissal to be 20 March 2025. Mr Duff filed his application on 28 April 2025, which meant that he filed his application 18 days outside the 21-day timeframe required to make an application.

• [3] The matter proceeded to a Determinative Conference. My Chambers prepared a Digital Hearing Book which was issued to the parties prior to the Determinative Conference. Noting that there were no objections from either party, I accepted into evidence the entirety of the Digital Hearing Book. At the Determinative Conference, Mr Duff, and Mr Trystan Bass of Woolworths, gave evidence.

• [4] In considering the evidence of the parties, I find that the application was filed outside the 21-day timeframe and that there are no exceptional circumstances justifying the granting of an extension of time. The reasons for my decision follow.

• [5] The Act allows the Commission to consider extending the period within which a general protections application involving dismissal may be made, if it is satisfied that there are exceptional circumstances.[1] I can only exercise my discretion if I am satisfied there are exceptional circumstances. The meaning of "exceptional circumstances" was considered and summarised by the Full Bench in Nulty v Blue Star Group:[2]

"[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."

• [6] The matters that I need to consider to be satisfied whether there are exceptional circumstances are:[3]

a) the reason for the delay;

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

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

d) the merits of the application; and

e) fairness as between the person and other persons in a similar position.

• [7] I now consider the factors under s.366(2) of the Act and whether there are exceptional circumstances which warrant the granting of an extension of time.

• [8] In correspondence to the Commission on 2 July 2025, Mr Duff says that the reason he filed late was because '[f]air work directed [him] to the wrong case file', 'which then had to be removed/ deleted'.[4] Mr Duff says that he was then waiting on a refund from the Commission and could not afford to file a further application. He says he was advised to apply to have the fee waived and that this all took time.[5]

• [9] The Commission's internal case management system indicates that Mr Duff filed a Form F2 - Unfair dismissal application on 10 April 2025. It appears that on 15 April 2025, the Commission contacted Mr Duff to inform him that from the dates on his application form, Mr Duff may not have worked for the Respondent for a period of six months. Later that morning, it appears from the Commission's records that Mr Duff emailed the Commission to discontinue his application. The Commission's file was then closed. Mr Duff says he then followed up with the Commission on several occasions to enquire about the status of a refund for his unfair dismissal application.

• [10] I note that Mr Duff filed a remedy for unfair dismissal application within time and then subsequently filed a Form F8. At the Determinative Conference, Mr Duff said he made calls to the Commission and was told he could file an unfair dismissal application. Mr Duff said that he then did some research and made further calls. With respect to this, I note that the Commission's website provides information on dismissal-related applications, and the onus is on an applicant to select the appropriate application type when filing.

• [11] With respect to the delay following Mr Duff discontinuing the unfair dismissal application, Mr Duff says he was prevented from filing his general protections application because he had to wait for his refund. However, I note that he did file his application prior to receiving his refund. Woolworths say that it was not necessary for Mr Duff to wait for his refund to be processed before filing his Form F8, and that the Fair Work Commission's website makes it clear that an application can be filed concurrently with a Form F8 fee waiver form.[6] Moreover, the Commission's website also states that where applicants face financial hardship, they can apply to have the application fee waived.

• [12] Whilst I am sympathetic to Mr Duff's circumstances, it is clear that he did not need to wait for a refund to file the Form F8. The Commission's website states this clearly. At the Determinative Conference, Mr Duff was unable to provide any reasons as to why he waited a further 13 days to file his general protections application, after withdrawing his unfair dismissal application on 15 April 2025. He said that he could not provide a reason for this delay.

• [13] I do not consider that the reason provided by Mr Duff for the delay constitutes exceptional circumstances.

Any action taken by the person to dispute the dismissal

• [14] Mr Duff submits that he did not take any action to dispute the dismissal, other than by lodging an unfair dismissal application and then, a general protections application. I therefore consider this to be a neutral factor.

Prejudice to the employer (including prejudice caused by the delay)

• [15] Woolworths has not made any substantive submissions on this consideration. I do not consider that it has suffered any undue prejudice caused by the 8-day delay, relative to if the application had been filed within time. I therefore consider this factor to be neutral.

• [16] The Full Bench in Ivan Cowen v Renascent Regional Pty Ltd[7] stated that 'in cases such as this where there is not a full examination of the substantial merits, it is appropriate to make an assessment of the case based on the limited material available through the prism of viewing [the] case at its most favourable.'

• [17] Woolworths say that Mr Duff was dismissed following conduct concerns 'inconsistent' with the 'continuation of his employment'.[8] Specifically, Woolworths allege that Mr Duff engaged in 'aggressive and inappropriate behaviour' towards his manager.[9] In his Form F8, Mr Duff says that he was dismissed due to his sexual orientation and for making complaints and enquiring about his workplace rights. From the material before me, I am unable to make a determination on the merits of the application without first hearing the full evidence. I therefore find that the merits are a neutral consideration.

Fairness as between the person and other persons in a similar position

• [18] As Deputy President Gostencnik in Morphett v Pearcedale Egg Farm noted, 'this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.'[10]

• [19] Neither party made any substantive submissions with respect to this factor. As each matter turns on its own facts, having found no cases with a similar factual matrix to this matter and considering the circumstances of this case, I consider this factor to be neutral.

• [20] Having considered all the circumstances of this matter and the factors in s.366(2), I find that no factors weigh in favour of an extension of time being granted. I therefore decline to exercise my discretion to grant an extension of time. It follows then that Mr Duff's application has not been made within time and is therefore dismissed. An Order[11] to this effect will be issued with this Decision.

[1] Fair Work Act 2009 (Cth) s 366(1) (FW Act).

[2] [2011] FWAFB 975.

[4] Digital Hearing Book (DHB) page 7.

[7] [2021] FWCFB 2606 [42].

[10] [2015] FWC 8885 [29].

[11] PR790236.

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