s.365 - General protections

General protections application filed out of time - representative error - circumstances exceptional - extension of time granted.

[1] This decision concerns an application by Mr Jeffrey Sorensen (Applicant) for the Fair Work Commission (Commission) to deal with a general protections dispute (Application) pursuant to s 365 of the Fair Work Act 2009 (Act) against his former employer, Christian Community Ministries Ltd (Respondent).

[2] The Applicant's dismissal took effect on 14 November 2025. The 21 day time period for the Applicant to lodge a general protections application involving a dismissal in the Commission expired at midnight on 5 December 2025. The Applicant's Application was filed in the Commission on 8 December 2025. It was therefore filed three days late.

• [3] The Act allows the Commission to extend the period within which a general protections application 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]

[4] 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.

[5] 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.

[6] 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. I will now consider these matters.

• [7] The delay required to be considered in s 366(2)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

• [8] The 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 the applicant's favour, however all of the circumstances must be considered.[5]

[9] I am satisfied, based on the material before the Commission, that the three day delay in filing the Application was caused by representative error on the part of Mr Aaron Stewart, solicitor, and no part of the delay was occasioned by the conduct of the Applicant, who gave instructions at an early time for his Application to be prepared and filed in the Commission within the 21 day time limit. I consider that the Applicant is blameless for the delay, even though he was aware of the dismissal on the day it took effect.

[10] I am satisfied that the Applicant has an acceptable explanation for the three day delay in lodging his Application in the Commission. This weighs in favour of a conclusion that there are exceptional circumstances.

[11] There is no suggestion in the material before the Commission that the Applicant took any step to dispute his dismissal other than filing his Application in the Commission. This is a neutral consideration.

[12] I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

[13] Determination of the matter will involve consideration of all the evidence, including cross examination of relevant witnesses. It is not possible at this early stage of the proceedings to form a proper view about the likelihood of the Applicant succeeding in his general protections case against the Respondent. I consider the merits of the Application to be a neutral consideration.

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

[14] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.

[15] Neither party made any submissions of weight in relation to this factor. In all the circumstances, I consider this factor to be a neutral consideration.

[16] Taking into consideration the matters I am required to take into account under s 366(2) of the Act and all the matters raised by the parties, I am satisfied that there are exceptional circumstances in this case and it is appropriate to exercise my discretion to extend time for the Application to be lodged in the Commission. The circumstances of this case are out of the ordinary course, unusual, and special because an applicant can reasonably expect that if they engage a solicitor to act on their behalf at the time of their dismissal, the solicitor will be aware of, able to calculate, and comply with, the 21 day time period to lodge a general protections application in the Commission. The Applicant's lawyer did not meet this standard and, as a result, did not lodge the Application in the Commission within 21 days of the dismissal. This provided the Applicant with an acceptable reason for the delay. The remaining factors under s 366(2) are neutral or of little weight. In my view, it is in the interests of justice that the Applicant, whose conduct did not contribute to the delay in lodging his Application, be permitted to pursue his general protections case.

[17] For the reasons given, I will extend the time for the Applicant to lodge his Application to 8 December 2025. An order will be issued to that effect [PR795991].

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

[3] Long v Keolis Downer [2018] FWCFB 4109 at [40]

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31]

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

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