Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - application for extension of time - no exceptional circumstances - application dismissed

• [1] Mr Jason Noakes (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 15 June 2025. The Applicant claimed his employment was terminated by Aspire Contracting Pty Ltd (the Respondent) in breach of s.358 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Applicant was dismissed effective from 19 May 2025. The Application was lodged 6 days outside of the 21-day statutory timeframe prescribed under s.366(1)(a) of the Act. The Application can only be accepted if the Commission allows an extension of time, taking into the factors in s.366(2) which I have considered below.

• [3] The matter was listed for hearing on 3 September 2025. The Applicant was self-represented. The Respondent was represented by Ms Sarah Yang from Irwell Law.

• [4] The Applicant stated in his submissions:

I believed the application needed to be filed 21 days from the date I ceased to work for the company (COB 26/5) not from the redundancy letter received (19/5). In the days following the redundancy, I spent every minute attempting to obtain another role in order for my family to survive, hence using the maximum allotted time to submit the application.

• [5] The termination letter, dated 19 May 2025, states:

We refer to the consultation meeting on 15 May 2025. At this meeting Aspire Contracting (The Company) provided an overview of the situation and the potential redundancy of your role, due to role needing to be relocated to Sydney.

We have reviewed other roles in the Brisbane area, and there are no redeployment options that would suit your skill set.

Consequently, we confirm that your position is redundant, effective 19 May 2025.

As a result of this redundancy, you will be entitled to the following:

• Accumulated statutory and contractual entitlements up to and including termination.

Your outstanding and accrued (if any) entitlements will be paid on today, 19 May 2025.

A separate letter will confirm the amount and components of that payment.

• [6] The Applicant was paid one week in lieu of notice. The Applicant confirmed he received a further letter containing the payment details, though that was not provided in evidence. The Applicant confirmed that he was paid correctly, on 19 May 2025. It appears the Applicant believes that his termination took effect from 26 May 2025 as a result of being paid a week's notice. This is not correct.

• [7] In Ayub v NSW Trains [2016] FWCFB 5500, the Full Bench stated:

[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd as follows:

"[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable (GJ McCarry, 'Termination of Employment Contracts by Notice' (1986) 60 ALJ 78 at 79; Burton Group Ltd v Smith [1977] IRLR 351 at 354). The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 767-768; Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115 at 126; Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 at 677_; Fightvision Pty Ltd v Onisforou_ [1999] NSWCA 323; (1999) 47 NSWLR 473 at [99])."

[18] A notice of termination may validly operate notwithstanding that it is stated to take effect subject to a condition, provided that the notice is expressed with sufficient certainty so that conditional date of termination is ascertainable, the condition upon which the termination becomes operative has been fulfilled and the employee is in a position to know that the condition has been satisfied.

[19] When the termination occurs without notice on the basis that a sum of money is paid in lieu of the notice that would otherwise be required, then the termination would take effect when communicated to the employee subject perhaps to the additional requirement that the amount in lieu of notice has actually been paid to the employee.

• [8] The dismissal took effect from 19 May 2025 and a week's notice was paid in lieu. The employer is required under s.117 of the NES to provide notice of termination. However, payment of notice in lieu does not extend the period of employment where the termination letter explicitly confirms that termination is effective from that day.

• [9] Further, the Applicant spoke to Ms Katherine Hutton, HR Manager and author of the letter dated 19 May 2025. Ms Hutton informed the Applicant of the termination verbally prior to issuing the letter. Based on the Applicant's testimony, it appears that Ms Hutton told the Applicant that he would be paid for the following week. When the Applicant asked Ms Hutton if he needed to come in for the rest of the notice period, he recalls that she told him he should not come in, and that he was to leave the premises immediately. This accords with what is stated in the termination letter, that the dismissal is to take effect from the date of the letter.

• [10] I find that the dismissal took effect from 19 May 2025. Therefore, the Applicant was required to lodge his general protections application by 9 June 2025. As the application was lodged on 15 June 2025, it was lodged 6 days outside the statutory 21-day time limit.

Should an extension of time be granted under s.366(2) of the Act?

• [11] Section 366 of the Act provides when a further period is granted to accept a late application.

(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.

• [12] There must be exceptional circumstances in order to be granted a further period to lodge this application. In summary, exceptional circumstances are:

• Out of the ordinary course, unusual, special or uncommon. It does not need to be unique, unprecedented or vary rare.

• • It can be 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. [1]

Section 366(2)(a) - Reason for delay

• [13] The reason for delay appears to be primarily based on a misunderstanding of when the dismissal took effect.

• [14] Unfortunately, such misunderstandings are not uncommon in the Commission. It is well accepted that a lack of understanding of the law does not establish exceptional circumstances.

• [15] I note the Applicant has also submitted that he was spending his time following the dismissal attempting to find appropriate employment, as his wife is on maternity leave and he has a baby he must provide for. I am sympathetic to the Applicant's situation. This is, however, not an uncommon situation for parents who have lost their employment. The Applicant has not established that his personal circumstances prevented him from lodging an application within the 21-day period following his dismissal.

• [16] I find that the Applicant has not provided an acceptable reason for the delay. This consideration weighs against an extension of time.

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

• [17] The Applicant noted that he sought advice following his termination and spoke to the Fair Work Ombudsman on the phone on 29 May 2025. The Fair Work Ombudsman advised the Applicant that he may make an application to the Commission, and advised him that he had 21 days to do so. The Applicant also spoke to JobWatch.

• [18] However, there is no evidence of any communication between the Applicant and Respondent, following the dismissal and prior to lodging this claim, other than the Respondent providing details of his final pay.

• [19] I find the Applicant did not take action to dispute the dismissal prior to lodging this application. This consideration weighs against an extension of time.

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

• [20] The Respondent submitted that it would be prejudiced, in a general sense, because of the time and costs associated with defending against the Applicant's claim. These are, of course, costs which the Respondent would have likely incurred anyway had the application been filed 6 days earlier.

• [21] I am not satisfied that there is any prejudice to the employer. I find that this is a neutral factor.

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

• [22] It is not appropriate to embark on a detailed exploration of the merits of the matter when considering whether to grant an extension of time.

• [23] I do note, however, that the Applicant stated he had been dismissed in contravention of s.358 of the Act. Section 358 deals with sham contracting arrangements. I expressed my view in the hearing that there is no evidence that the Applicant was dismissed so that he could then be re-engaged as an independent contractor.

• [24] The Applicant stated that he was "[n]ot given the opportunity to relocate nor other discussions to find other roles within the company". I find that, on the information before me, the Applicant's claim under general protections has little merit. This weighs marginally against granting an extension of time.

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

• [25] The Applicant did not provide any submissions on this point. In relation to the misunderstanding of the effective date of dismissal, it is not unusual for parties in the Commission to make applications out of time due to ignorance of the law. In situations such as this, ignorance of the law does not establish exceptional circumstances, such that the strict time limit should be extended.

• [26] I find this to be a neutral factor in this application.

• [27] Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. Accordingly, the extension of time is not granted and the application is dismissed.

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

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