Fair Work Act 2009

s.365 - General protections

Direct Endoscopy, Leo Mucci, Eileen Quinlivan, Lena Benett

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - application granted.

[1] On 20 January 2026, Ms Antonio (the Applicant) lodged an application under s.365 of the Fair Work Act 2009 (Cth) (the Act) in which she alleges to have been dismissed in contravention of Part 3-1 of the Act.

[2] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow.

[3] The Applicant was dismissed on 23 December 2025. This application was filed with the Fair Work Commission (the Commission) on 20 January 2026. The 21-day time limit was on 13 January 2026; therefore, the application is out of time by 7 days. For the application to proceed, an extension of time to lodge the application is required. Direct Endoscopy (the Respondent) opposes the Commission granting an extension, and seeks the application be dismissed because it was not filed within the time required.

[4] Section 366(2) of the Act permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

• [5] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd, [1] where it was held that:

"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 regular occurrence, even though it can be a on 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."[2]

[6] The Applicant identifies several different reasons for the delay. Foremost amongst these is the confusion and difficulty she submits confronting following being notified her job could be made redundant, having this confirmed on 23 December and subsequent attempts she made to dispute the "genuineness" of this decision. It is not disputed that on 17 December, Ms Antonio filed an unfair dismissal application with the Commission. The next day she sought legal advice and was advised her application would need to be withdrawn as she remained employed at the time. On 19 December she submits she sought to contact the Commission but was unable to do so. On 22 December Ms Antonio's legal adviser emailed the Commission seeking to pause her unfair dismissal application pending it being amended (UD2025/19977). Ms Antonio's solicitor's office was closed over the holiday period from 22 December 2025 to 9 January 2026. Her solicitor's email was not responded to by the Commission.

[7] After receiving further advice, on 12 January 2026 Ms Antonio filed a separate general protections application with the Commission (C2026/445). The same day she submits she sought to contact the Commission seeking advice about what to do with her respective applications. The Commission's records indicated that on 14 January, Ms Antonio successfully contacted the Commission under the impression her previous application had been withdrawn. As this was not the case, she was advised her general protections application was invalid because it was submitted before her unfair dismissal application had been discontinued. Ms Antonio advised her employment had been terminated on 23 December. Ms Antonio was then advised by the Commission that her case would be escalated for a Commission Member to review its "irregularities" and that both her applications would be held for the time being.

[8] It was not until 17 February 2026, that Ms Antonio's application was allocated to my Chambers. Before this time, Ms Antonio had engaged further legal advice. Acting on this advice on 20 January she discontinued both of her previous applications and re-filed a new general protections application.

[9] Ms Antonio argues had her initial general protections application being accepted and had she received prompt clarification and advice from both the Commission and her solicitor, her application would be within time. She identifies these circumstances as the reasons for the delay. She submits the distress about being dismissed and lack of clarify she faced in attempting the exercise her rights added to the reasons for her delay.

[10] The Respondent identify the fact Ms Antonio made multiple applications to the Commission within the required timeframe demonstrates her understanding of the Commissions processes and requirements. They argue the fact Ms Antonio's solicitor engaged with the Respondent from 18 December indicates she had the benefit of legal advice from this time. and the Respondent further identify that, Ms Antonio's solicitors advised the Respondent she would be filing with the Commission on 22 December 2025. The Respondent argues this evidence does not support a contention Ms Antonio was unaware of her rights, did not have the benefit of advice and was seeking to contest the termination of her employment from 23 December 2025. Their position is the essence of her arguments are that she was confused which was the correct application to file, had difficulty contacting the Commission and her lawyers over the holiday period, and was stressed and negatively impacted by the ending of her employment. And that these "reasons" do not present a valid reason for delay and have been rejected as "exceptional circumstances" by previous decisions of the Commission.

[11] In particular, the Respondent argues the Commission discretion is not intended to afford an applicant repeated opportunities after earlier attempts have been defective and that ignorance of one's rights is not usually a valid reason for delay. I have considered each of these submissions. Each circumstance of the ending of an employment relationship will be different, and the Commission must consider the circumstances in each case on their merits.

[12] I do not consider Ms Antonio to advance a case that her circumstances are exceptional because she was not aware of her rights. Her evidence is clearly that even prior to her employment relationship ending she sought advice and acted to protect her employment. I accept she argues to be not fully aware and misunderstood what her rights in fact were and how she could exercise them. I further accept her argument is that because of the stress at being dismissed, and the challenges getting clarity and accurate advice over the holiday period she discontinued her an original application that was filed within time and lodged the present application.

[13] This evidence clearly demonstrates Ms Antonio sought to exercise her rights and did so within the statutory requirements. It weighs in favour of the granting of an extension of time. I also consider that Ms Antonio had difficulty contacting the Commission and her solicitor and getting the correct advice over the holiday period is a plausible explanation.

[14] Ms Antonio's explanation why she discontinued her original application and sought to lodge a new one was because of the advice she received. She does not provide any further evidence of this "advice" or any further clarification to support this submission. It is clear from the Commission's file note of Ms Antonio's contact with the Commission that there was an issue with the general protections application she had lodged within time. The evidence supports this being the case because Ms Antonios solicitor's request for her unfair dismissal application to be paused so it could be amended was not responded to. Had this been the case, there would have been no issue with the initial general protections application that she filed, or it would not have been necessary. It is not common or usual for Commission staff not to respond to or clarify requests of applicants or their representatives. This being the case, I accept there is a degree of exceptionalism to sequence of Ms Antonio's applications, her contact with the Commision, and the advice she received and ultimately acted upon.

• [15] I also accept Ms Antonio was stressed and negatively impacted by the ending of her employment. However, she takes these submissions no further to support her contention that on their own, these factors and their impact on her were exceptional or "unique". In this regard it is well established that there is nothing unusual or uncommon for an employee that has been dismissed to be confronted with stress, shock and financial hardship.[3]

[16] For these reasons I do not consider any of the compounding reasons for the delay advanced by Ms Antonio to be "unique" or "unprecedented", and I am not satisfied that they satisfy the criteria of being "out of the ordinary course", "unusual" or "uncommon".

• [17] It is well established by this Commission that ignorance or a lack of awareness, or a misunderstanding of one's rights is not usually an acceptable of reason for delay.[4] The reasons for delay Ms Antoni advances are not just that she was not aware of or misunderstood her rights. I accept the reasons Ms Antonio presents to explain her late application are her lack of accurate information, a failure of the Commission to respond to her solicitor's request, her difficulty getting clear advice, and the fact she acted to discontinue an application made in time before it was referred to a Commission Member. Taken together, I am satisfied the circumstances confronting Ms Antonio's application meets the threshold of being unique and uncommon. This being the case, I am satisfied she has provided a credible and reasonable explanation for the period of the delay. As such, this factor weighs in favour of the granting of an extension of time.

[18] As to s.366(2)(b) steps taken to dispute the dismissal, Ms Antonio's evidence establishes that even before her termination was confirmed she sought advice and to dispute her dismissal. These actions continued in tangible form through the filing of subsequent applications with the Commission up to the day this application was filed. I am satisfied this is to be the case, and consider this factor also weighs in the favour of the Applicant.

• [19] The Respondent argues it will suffer prejudice (per s.366(2)(c) and additional expense should the application be allowed to proceed. The applicants submit otherwise, noting the Respondent has had notice of her intention to dispute the ending of her employment for some time. In these circumstances, I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day period. The mere absence of prejudice is not in my view a factor that weights in favour of the granting of an extension of time.[5] I consider this factor to be neutral.

• [20] As to the merits (s.366(2)(d)), the Respondent's position is that the application is without merit. That Ms Antonio's termination was a genuine redundancy within the meaning and requirements of the Act. Ms Antonio argues there is considerable merit to her case. The basis of these submissions are that she was dismissed because of her protected attributes and exercise of workplace rights, including pregnancy and accessing personal leave. The substantive merits of this application have not been fully tested and, as identified by the Full Bench of the Commission in Kyvelos v Champion Socks Pty Ltd, the Commission "should not embark on a detailed consideration of the substantive case" for determining whether to grant an extension of time to an Applicant to lodge their application.[6] The factual context and merits of this case would need to be further scrutinised, including under cross-examination, if an extension of time was granted for the application to proceed. This being the case, I do not consider the merits of the case to tell in favour or against the granting of an extension of time. I consider this to be a neutral factor.

• [21] As to fairness (s.366(2)(e)), the essence of Ms Antonio's submissions is it would be unfair to allow her application to proceed where she has made attempts within her understanding and capacity to seek redress. She further argues allowing her application to proceed will help protect vulnerable workers who face pregnancy related discrimination from adverse action for exercising workplace rights. The purpose of the fairness consideration concerns "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."[7] The Applicant's subjective submissions do not accord with the fairness consideration, and she has not identified any instances where persons in a like position have been granted the right for their application to proceed. I do not consider this factor weighs in favour of an extension of time in the circumstances of this case. It is a neutral consideration.

[22] In conclusion, I am required to be satisfied that there are exceptional circumstances. On balance, two of the above considerations weigh in favour of the granting of an extension of time. The remaining factors are neutral.

[23] This being the case, considering all the circumstances of this case, and my findings with respect to the factors set out in s.366(2), individually and together, I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application as provided for in s.366(2). Accordingly, the objection is dismissed, and the matter will proceed in the usual way.

[1] [2011] FWAFB 975.

[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

[4] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

[5] Fair Work Act 2009 (Cth) s.366(2)(c).

[6] AIRC 10 November 2000 at [14]; See also Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899 at [38].

[7] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

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