s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] This decision concerns an application by Mr Jeffrey Graham (Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).

• [2] In the Application, Mr Graham states his employment with NSG Services Group Pty Ltd (Respondent) commenced on 20 January 2025 and that his dismissal took effect from 6 February 2025. The Application was made on 1 March 2025.

• [3] Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s.366(2). The period of 21 days ended at midnight on 27 February 2025. Therefore, the Application was made 2 days outside the 21-day period. The Applicant asks the Commission to allow a further period for the Application to be made.

• [4] The matter was allocated to my Chambers to determine whether an extension of time should be granted under s.366(2). I conducted a hearing on 14 April 2025. The Applicant was self-represented. The Respondent was represented by its Chief Executive Officer Ms Vicki Tod.

• [5] For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.366(2).

• [6] The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute must be made only if it is satisfied that there are 'exceptional circumstances'. 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.[1] 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.[2]

• [7] The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [8] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

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

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

• [9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.

• [10] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[3]

• [11] I now consider these matters in the context of the Application.

• [12] The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable 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 an applicant's favour, however all of the circumstances must be considered.[4]

• [13] On 6 February 2025, the Applicant was dismissed for serious misconduct. The Applicant was not given notice and did not receive payment in lieu of notice. The Applicant candidly stated that initially he was unaware of his rights before researching unfair dismissal laws and becoming aware that he could not bring an unfair dismissal application against the Respondent due to his short period of service.

• [14] However, after making an enquiry with the Fair Work Ombudsman on 26 February 2025, he was advised that he could make an application for the Commission to deal with a general protections dispute involving dismissal. The Applicant stated that upon receiving that information, which included a link to the Form F8 application form, he submitted the Application as soon as he could on 1 March 2025. The Applicant stated that he only became aware of the 21 day time limit when completing the application form on 1 March 2025.

• [15] The Applicant stated the delay was also attributable to him waiting on a response from the Respondent to "support their allegations and provide proper reasons for serious dismissal [sic]."

• [16] I do not accept the Applicant has an acceptable or reasonable explanation for the delay for the following two reasons.

• [17] First, it is well established that a lack of knowledge (or ignorance) of unfair dismissal and general protections laws and the applicable time limits for the making of applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[5]

• [18] Second, the Applicant and the Respondent exchanged correspondence over 6 and 7 February 2025. In its correspondence dated 7 February 2025, the Respondent set out the reasons for the Applicant's dismissal and noted that the matters were discussed with the Applicant on 6 February 2025. On 19 February 2025, the Applicant sent further correspondence to the Respondent challenging the summary nature of the dismissal and seeking payment of one week in lieu of notice. The only response the Applicant was waiting on thereafter was whether the Respondent would agree to the Applicant's request to make payment in lieu of notice.

• [19] It is well established that delaying the filing of an unfair dismissal application while pursuing an alleged underpayment of wages or entitlements is not an acceptable or reasonable explanation for the delay.[6] I consider that reasoning is equally applicable to my consideration of whether there are exceptional circumstances in the context of an application for the Commission to deal with a dismissal dispute. It follows that I do not acceptable any delay attributable to the Applicant waiting for a response from the Respondent is an acceptable or reasonable explanation for the delay. As the Full Bench in Coles Supermarkets Australia Pty Ltd v Alexander Tapier, there is no reason the Applicant could not have made the Application while simultaneously pursuing payment in lieu of notice.

• [20] The absence of an acceptable or reasonable explanation weighs against a conclusion that there are exceptional circumstances.

s.366(2)(b) - Action taken to dispute the dismissal

• [21] Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[7]

• [22] In Hunter Valley Developments Pty Ltd v Cohen[8], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[9]

• [23] There is no dispute that the Applicant contested the summary nature of his dismissal and the reasons provided by the Respondent. I consider this circumstance weighs in favour of a conclusion that there are exceptional circumstances.

• [24] Beyond the bare assertion that the Respondent has suffered prejudice in defending the Application, including at this interlocutory stage, I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.

• [25] The FW Act requires me to take into account the merits of the Application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the filed materials.

• [26] It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.

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

• [27] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I consider this to be a neutral consideration.

• [28] The test of 'exceptional circumstances' establishes a 'high hurdle'. Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances.

• [29] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2).

• [30] Accordingly, the Application must be dismissed. An order to that effect will be issued with this decision.

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

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

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[6] Coles Supermarkets Australia Pty Ltd v Alexander Tapier [2021] FWCFB 2559 at [25]; Matthew Dakin v Farmgate MSU Pty Ltd [2022] FWC 1707 at [4]; Sxa Fang Chong v SSM International Pty Ltd [2022] FWC 2591 at [18].

[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[8] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.

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