s.365 - General protections

Application to deal with contraventions involving dismissal - extension of time

[1] Mr Johannes Mezemer (Applicant) has made an application to the Commission pursuant to section 365 of the Fair Work Act 2009 (the Act), in which he alleges he was dismissed in contravention of Part 3-1 of the Act. The Application was made on 8 November 2025 and alleged that the dismissal took effect on 11 October 2025. The Application was made outside of the 21-day period provided for in section 366 of the Act for Applications of this type. Additionally, MSS Security Pty Ltd (Respondent) has indicated in its response to the Application that the Applicant was not dismissed, but rather resigned from his employment and did so with effect from 10 October 2025.

[2] Prior to the termination of his employment, the Applicant had worked on a permanent full-time basis with the Respondent at a location known as Defence Plaza. There is some dispute in the materials as to whether that employment commenced on 15 or 16 September 2025.

[3] There have been some delays in bringing this matter forward. It is appropriate that the relevant history be set out for context.

a) The parties were advised, by e-mail from my chambers on 6 January 2026, that the matter was listed for an extension of time hearing on 29 January 2026. The attached instructions required, inter alia, the Applicant to provide materials in support of an extension of time by 4:00PM on Wednesday, 14 January 2026. The Applicant did not do so.

b) On 21 January 2026, my chambers drew this non-compliance to the Applicant's attention and gave him until 10:00AM on 22 January 2026 to provide the materials. This came with notice of the Commission's power to dismiss matters under section 587 of the Act on its own initiative.

1. On 27 January, my Chambers wrote to the Applicant advising that, as the Commission had not received any materials from the Applicant by 10:00AM, 22 January 2026, the extension of time hearing listed for 10:00AM on Thursday, 29 January would be vacated, and the matter would instead be listed for a non-compliance hearing at that same time.

d) Later that day, the Applicant sent an e-mail to my chambers and the Respondent suggesting that he had not heard anything from the Fair Work Commission and chastising the Respondent for communicating with him. My chambers in reply informed the Applicant of the origin of e-mails from 'chambers.clarke.c@fwc.gov.au' and explained that the Respondent was required as a matter of fairness to copy him in to any communications with that e-mail address. The Applicant apologised and sought an extension to file his material until 15 February. He was informed by chambers to address that issue at the non-compliance hearing on 29 January 2026.

e) The Applicant failed to attend the non-compliance hearing on 29 January 2026. My chambers attempted to call his mobile phone number on file and left a message for him enquiring if he planned on attending. Consistent with the information provided in the initial instructions sent to the parties restating the effect of section 600 of the Act, the non-compliance hearing proceeded in the absence of the Applicant. The Respondent made oral submissions to me that the application should be dismissed summarily, citing a lack of any compelling justification for non-compliance on the Applicant's part and the expenditure of the Respondent's and the Commission's time and resources in relation to the matter. I indicated to the Respondent that I would issue a Statement and provisional view.

f) Prior to releasing that Statement, my chambers were contacted by the Applicant by e-mail, on 8 February 2026. In that communication, the Applicant indicated that he did wish to pursue his application and that he been in Ethiopia for several months, returning on or about 25 January 2026. He sought new dates for a hearing and the provision of his material, while denying that he had been "a non-compliant party". He provided no explanation for the failure to attend the non-compliance hearing, notwithstanding his apparent concession that he had returned from overseas at the time it occurred.

g) I published a Statement and Directions the following day in which I set new directions for the extension of time matter. The Directions relevantly required the Applicant to provide his materials on 23 February 2026 and for the matter to be heard on 13 March 2026. Together with the Statement and Directions, I provided to the parties a copy of an unfair dismissal application that the applicant had made but not proceeded with in relation to his employment with the Respondent, which had been mentioned in the form F8 prepared by the Applicant in the present matter. As with the initial directions that had been issued, the Statement and Directions informed the parties that the Commission may determine a matter in the absence of a party who failed to attend.

h) The Applicant did not provide any materials on 23 February 2026. This was brought to his attention via an e-mail from my chambers on 24 February 2026. He was requested to provide the requested materials by close of business. He responded later that day "urging the Commission to look past technicalities and allowing my voice to be heard at the appointed date". The Applicant filed no materials on either 23 or 24 February 2026.

1. On 25 February 2026, the Applicant wrote to my chambers providing some additional information around the circumstances of his overseas travel and stated that upon his return he "needed a little bit of time & space to sort things out".

j) On 1 March 2026 my chambers wrote to the Applicant, copying in the Respondent, in the following terms:

"The Commission needs to provide all parties to this matter with a reasonable opportunity to be [sic] present their case. That includes both yourself and MSS Security.

One of the ingredients of providing a fair hearing is allowing the parties to understand the case against them. The current matter that you have brought cannot proceed unless or until the Commission grants you an extension of time, because your general protections application was filed outside of the 21 day time frame usually permitted for such claims. MSS security needs a reasonable opportunity to respond to your extension of time application, so they need to understand how it is put.

We have twice issued directions to you provide the material upon which you rely in support of your extension of time application. You have twice failed to do so at the stipulated time. On the first occasion, you were offered a further opportunity by way of an extension and an adjournment because there was at least some suggestion that you wanted to pursue your claim and because you had been out of contact for a period and seemed to have misunderstood some of our communications when you returned from overseas. On this occasion, it is not clear upon what basis you seek to be excused from again failing to comply with the directions, other than your suggestion that you need 'a little bit of time & space to sort things out'.

If you do not intend to rely on any written material or documents in support of your extension of time application, that is a matter for you. As things stand, you have not complied with the directions nor sought any further amended timetable so any late effort by you to attempt to rely on written material might be opposed. You have also not sought a further adjournment of your hearing date. As things stand, the extension of time hearing will proceed on 13 March irrespective of your state of preparedness to participate in it. Any requests for further time or an adjournment will be considered on the merits having regard to the submissions of the parties."

k) On 2 March 2026, the Respondent filed submissions drawing attention to the Applicant's non-compliance to date, asserting it had been disadvantaged by that non-compliance and my accommodating response to it, and seeking to have the matter dismissed.

1. On 3 March 2026 the Applicant sent my chambers an e-mail in which he advanced some material relevant to the delay in bringing his general protections claim. The e-mail concluded with the following:

"After reading your message & assessing the progression of this case I have reached the conclusion that there was never a favourable platform & opportunity for me to prepare & plead my case to effect a fair & acceptable outcome by making my voice heard through evidences & testimonies. I am also convinced that the outcome of the upcoming hearing for time extension is already predetermined. In light of this I hereby request the Commission to refer my case to the Federal Circuit & Family Court of Australia as of today effective as per the provision of Australian Law. I strongly believe I'll be accorded with a plain, level field & a legal counsel with the Australian Court System."

m) On 4 March 2026, my chambers wrote to the Applicant, copying in the Respondent, in the following terms:

"It is unclear what you are asking the Commissioner to do in the present matter. The President of the Commission has a discretion to refer to a question of law to the Federal Court of Australia. You have not however identified the question of law you seek to have referred in this way. If you wish to pursue this option, an application may be made using form F1 available on the Fair Work Commission Website.

If you believe the Commission has made a decision that you wish to appeal, you may lodge a notice of appeal using form F7, also available on the Fair Work Commission website. You can also seek a stay of any decision by indicating this on the appropriate section of this form.

Unless or until a stay is granted, the matter will proceed as presently timetabled. As previously indicated, any requests for further time or an adjournment will be considered on the merits having regard to the submissions of the parties.

If you believe the matter has been predetermined and wish to make an application for the Commissioner to disqualify himself from further hearing the matter, could you please outline the grounds or basis upon which that application is made in writing and indicate whether you seek a separate hearing on that issue of whether you wish to make that application in the course of the hearing presently scheduled for 13 March.

The Commission can make a referral for you to receive independent legal advice from the Workplace Advice Service. If this is an option you wish to pursue, please indicate this."

n) The Applicant responded to this communication on 10 March 2026 by providing to chambers an application in Form F1. The relief sought in that application was as follows:

"I am request the FWC to fully disqualify itself from presiding over my case immediately and grant me a certificate of release so that I may be able to seek justice in the Federal Circuity & Family Court of Australia Division 2 as per the provision of the Fair Work Act Sections 566 & 567"

The covering e-mail which attached that application relevantly stated "Given that I have now sought the intervention of the Federal Circuit Court of Australia I ask the FWC to halt any ongoing or upcoming hearings as of this date effective."

• On 10 March 2026, my chambers replied to the Applicant, copying in the Respondent, in the following terms:

"We confirm receipt of your application. You are welcome to speak to that application at the hearing presently scheduled for this Friday, 13 March 2026 at 2PM.

Please note that you do not need permission from the Commission to commence a separate, unrelated matter in a court should you wish to do so. However, you cannot make a general protections court application about your alleged dismissal unless or until you receive a certificate from the Fair Work Commission.

In order to receive a certificate from the Fair Work Commission, the Fair Work Commission needs to make a decision about whether you should be given an extension of time in respect of the application you have made to us. The Fair Work Commission may also need to make a decision about whether the dismissal you allege was a dismissal within the definition of section 386 of the Act. If you are successful in relation to those issues, we will convene a dispute settlement conference. If the parties are unable to resolve the matter in that forum, then a certificate will be issued.

If your position is that you do not want Commissioner Clarke to determine your extension of time matter, you can address the reasons for this in the course of the hearing presently scheduled. If your position is that you do not want anyone at the Fair Work Commission to consider your extension of time application, and instead want that issue determined by a court, you would need to seek advice about the appropriate forum and avenues available to seek that outcome.

If you do not wish to proceed with the application in the Fair Work Commission, which is listed for this Friday 13 March 2026 at 2PM, you can let us know by return e-mail. Please note that the Fair Work Commission cannot reinstate proceedings once they have been discontinued.

As things stand, the matter remains listed and no application for an adjournment has been made."

p) The Applicant responded to this communication in the evening on 10 March 2026, seeking an adjournment of the hearing of his extension of time application until "the grievances I have submitted in my application to the FWC are thoroughly investigated & properly addressed" and until the Applicant was "able to get much-sought legal counsel to help alleviate my ignorance of the legal & court system owing to my working class background".

q) On 11 March 2026, the Respondent sent an e-mail to my chambers indicating that it opposed any further adjournment.

r) On 12 March 2026, my chambers informed the parties that the application for an adjournment had been refused. That message was in the following terms:

"The Commissioner has considered the Applicant's request for an adjournment and the Respondent's submissions opposing that request. The Commissioner has determined that an adjournment will not be granted.

The hearing on 13 March 2026 provides an opportunity for the parties to address the extension of time issue, the form F1 which was provided on 10 March 2026 and, if the applicant wishes to pursue it, any application for Commissioner Clarke to refrain from hearing the matter on the grounds of bias."

s) Later in the day on 12 March, the Applicant provided my chambers with a message in the following terms:

"I don't have any issues with Commissioner Clark residing over this case. In fact I have the due respect & appreciation for the genuine care & concern he exhibited when I had the privilege of speaking with him over the phone. I believe he is a good man & he is carrying out his responsibilities. My issue is with the unhelping bureaucratic system & its entangling web of procedures.

I'm here only for one & only one thing: To request justice for the wrong done against me...to request to be reinstalled to work. That is it! Give me the chance to properly present the compelling evidence I have & then let there be a fair & balanced hearing. Of course, MSS Security opposes every move that steers this case back to the main issue because they know they will lose.

But I want to promise MSS Security that I'm just getting started with this no matter what the outcome of this case may turn out to be.

Until my grievances are lawfully & rightfully addressed, I don't see any point attending a hearing that little to no contribution to the unfair dismissal misdeed committed against me by MSS Security.

For the avoidance of doubt, I have not communicated with the Applicant over the phone, although my Associate has.

t) My chambers responded to the above message on the morning of 13 March, as follows:

"As previously communicated, your matter remains listed for an extension of time hearing today. Your attendance provides an opportunity to explain the circumstances leading to your section 365 application being filed beyond the required time limit and to raise any issue related to the Form F1 application you recently submitted. If you fail to attend, these issues may be considered, and determined, in your absence."

[4] The matter before me proceeded by way of an online hearing on 13 March 2026. The Applicant did not attend or respond to efforts to contact him at the appointed commencement time. The Respondent was represented by Ms Wilson, its People and Culture Manager. Ms Wilson made submissions on the Respondent's behalf and some documents that had otherwise passed between the parties were taken into evidence.

[5] At the outset of the hearing I raised with the Respondent that it appeared to me that the Applicant in his communication of the previous day (set out above at paragraph [3](s)), no longer wished to pursue an application that I disqualify myself from further hearing the matter. However, out of an abundance of caution, I invited the Respondent to address me on whether a fair-minded observer might reasonably apprehend that I might not bring an impartial mind to the questions I was required to decide in this matter. The Respondent was not of the view that there were any reasons that I ought recuse myself from dealing with the matter. In the circumstances, I did not consider that there was a live issue of bias with respect to this matter and continued with the hearing.

[6] I sought submissions from the Respondent in relation to the application brought by the Applicant for a "certificate of release", as referred to in paragraph [3](n) above. I expressed a preliminary view to the Respondent that the relief that was sought in that application was not a form of relief I was empowered by the Act to grant and that, to the extent that what was being sought was a certificate under subsection 368(3) of the Act, I could not provide such a certificate prior to at least determining the extension of time application in the Applicant's favour. The Respondent did not advance a contrary view.

[7] The application made by the Applicant's Form F1 is hereby dismissed.

[8] The application was filed on 8 November 2025 and stated that the date the dismissal took effect was 11 October 2025, whereas the Respondent was of the view that the employment ended on 10 October 2025, by way of resignation.

• [9] Attached to the Respondent's form F8A was an e-mail communication from the Applicant to a Mr Stephens, dated 9 October 2025.[1] In that e-mail, the Applicant advised that 10 October 2025 would be his last roster at the Defence Plaza site and that "I refuse to stay underpaid & I've decided to move on with a better career option to look after my loved ones". This followed an e-mail of the same date from the Applicant to a Mr Mulartschuk of the Respondent indicating that "This Friday, 10th Oct, 20205, will be my last roster as a full-time security guard at the Defence Plaza".[2] Further, in his earlier (and now withdrawn) unfair dismissal application, the Applicant had identified 10 October 2025 as the date his dismissal took effect. The Respondent submitted at the hearing that the Applicant did not work after that date. In all circumstances, I find that the termination of the Applicant's employment took effect on 10 October 2025. Having resolved that issue, I consider that this is an appropriate case for the determination of the extension of time application without the necessity of expressing a concluded view about whether the circumstances of the employment coming to end constituted a dismissal within the meaning of section 386 of the Act.[3]

[10] That being the case, if the manner of bringing the employment to an end was a dismissal within the meaning of section 386 of the Act, the application was lodged 29 days after the dismissal and 8 days after the expiry of the time limit set in section 366(1)(a) of the Act for the making of the application.

[11] As the application was filed out of time, an extension of time is required in order for the Application to proceed. This decision deals with the issue of whether such an extension will be provided. Section 366(2) of the Act provides that the Commission may allow a further period for an Application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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 similar position.

• [12] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)[4] a Full Bench of this Commission considered the test for extending time for applications for the Commission to deal with disputes over dismissal involving a contravention of Part 3-1, which appears in s. 366(2) of the Act, and said:

"[14] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension. A decision whether to extend time under s.366(2) involves the exercise of a discretion."

Furthermore, the Full Bench in that case described the task of discerning exceptional circumstances in a manner that was not consistent with a mere "tick a box" approach to the enumerated considerations, but rather involved an evaluation taking into account matters of weight and degree.[5]

• [13] The meaning of 'exceptional circumstances' in s.366(1) was also considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty)[6], as follows:

"[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."

• [14] Where paragraph (a) of subsection 366(2) requires the reason for "the delay" to be taken into account, the relevant delay is to be taken to be the period between the expiry of the time limit (in this case 31 October 2025) and the filing of the application (in this case 8 November 2025), and does not include the period from the date the dismissal took effect to the end of the 21 day period. Nonetheless, events and circumstances preceding "the delay" may be considered for the purposes of determining the reason for "the delay" and ultimately whether that reason supports a finding that there are exceptional circumstances.[7] An acceptable explanation of the entirety of the delay is not required to make a finding of exceptional circumstances, however it is relevant to have regard to whether the applicant has provided an explanation for the entirety or any part of the delay.[8]

• [15] The reasons for delay advanced by the Applicant in his application and in e-mail correspondence with the Commission[9] suggest a misunderstanding by the Applicant of the appropriate processes to follow to dispute the circumstances relating to the ending of his employment. The Applicant's materials indicate he first contacted the Fair Work Ombudsman, who referred him to the Commission. [10] He then, on 29 October 2025, made an unfair dismissal application within time. He says he was contacted by the Commission the following day, and was informed his application did not meet some requirements (presumably the minimum employment period). He said his unfair dismissal claim was withdrawn and the application fee refunded and that he was informed he could make general protections application and that "a special circumstances clause may be implemented". However, as noted above, the Applicant did not in fact make the General Protections Application until 8 November 2025.

[16] The Respondent submitted that if the telephone call took place when the Applicant said it did, the Applicant still had a day in which he could have lodged the present application on time and that his failure to act sooner than he did after that call is unexplained. The Respondent further submitted that there was sufficient information available on the Commission's website for the Applicant to have understood that a 21 day time limit would apply to his General Protections claim.

• [17] The Applicant clearly made an error in first filing an unfair dismissal case in relation to the events that have transpired here, having not appreciated the minimum employment period requirement. Having filed that application relatively late during the 21 days following the termination and then becoming aware of the error with only a day to spare is important context when assessing the reasons for delay. However, a misapprehension of one's rights or how to pursue them is not considered an explanation that - without more - assists the finding of exceptional circumstances in the Applicant's favour.[11] The difficulty for the Applicant in this case is that there is no evidence or explanation foreshadowed in the materials provided that indicates anything "more" in the relevant sense.

[18] The Applicant made an unfair dismissal application on 29 October 2025, however this was withdrawn prior to it being served on the Respondent. Prior to making that application, the Applicant made some inquiries with the Fair Work Ombudsman. There is no suggestion that those inquiries were brought to the attention of the Respondent.

• [19] The Applicant further stated in his correspondence with the Commission[12] that he contacted the Base Manager of the Respondent prior to lodging the (subsequently withdrawn) unfair dismissal claim, seeking to be reinstated and threatening legal action if that did not occur. The Applicant is of the view that unfair dismissal application was lodged after he had waited for a response for a week and had not received one.

[20] Ms Wilson submitted that she had been instructed by Mr Mulartschuk that there had been no correspondence from the Applicant after he ceased work and that she was not separately aware of any contact either by phone or e-mail, until the present application was received.

[21] There is clearly a contest on the basis of what is essentially unsworn statements about this issue. Given the tone of the Applicant's communications with the Commission and the deep sense of grievance conveyed therein concerning the circumstances that have led to this matter being brought forward, I consider it more likely than not that the Applicant did in fact convey his desire for a remedy after his employment ended and prior to commencing his first Application.

• [22] The 8 day delay in this case is not so extensive as to lead to a presumption of prejudice. A material prejudice is essentially one that would not arise had the proceedings been commenced in time.[13]

[23] The Responded submitted prejudice has arisen in the context of the additional effort and time to respond the extension of time application, which would not have arisen had the Application been brought within time. Indeed, there has, as the background demonstrates, been several months dedicated to attempting to get this extension of time application ready to proceed, substantially as a result of the Applicant's non-compliance. Nonetheless, the Respondent accepts that its capacity to defend the substantial claim has not been affected by the delay.

[24] I regard the issue of prejudice as neutral to my consideration.

• [25] In determining this extension of time application, the parties have not been required to provide detailed evidence on the merits of the substantive matter. This would not have been an appropriate course. Rather, the instant task insofar as it concerns the merit of the matter is to determine whether the Applicant can establish the matter is not without merit.[14]

[26] So far as can be discerned from the information provided, the Applicant asserts that the reason for his dismissal relates to his complaints about underpayment not being rectified and failure by his employer to honour what he understood to be a transfer to casual employment at an alternate location from a particular date, which is an agreement he said he made in response to his concerns about underpayment in his full time role performing work at the Respondent's Defence Plaza site. As I apprehend it, in the absence of further elaboration from the Applicant, the dismissal lies either in the repudiation of agreement that his employment would convert to casual employment at that other location from what he asserts to be the agreed date, or being "forced" to remain underpaid until such time that agreement was honoured. The Respondent for its part submits that the Applicant could not have converted to a casual position until such time as he signed a casual contract, which he had not done. It has also stated on its response to the application that there was no underpayment.

[27] There are clearly substantial factual disputes between the parties that are inappropriate to resolve and are incapable of being resolved in the context of the present extension of time application. In all the circumstances, I treat the merits of the matter as a neutral consideration in my assessment.

• [28] I do however digress to note that the Applicant's expressed concerns about what he considered to be an underpayment appear to have been taken into consideration on the basis that this issue had been raised with the Department of Defence and, as at September 2025, the Respondent was awaiting an outcome.[15] It would be reasonable to expect the Applicant to be informed of any such outcome that affected his interests, even if he is no longer an employee.

[29] Neither the Applicant nor the Respondent were able to highlight circumstances sufficiently similar to warrant consideration. I regard this matter as neutral in the circumstances.

[30] Having had regard to the considerations I am required to, I am not satisfied that there are any matters that demonstrate exceptional circumstances, either individually or in combination, so as to enliven the discretion to allow an extension of time. Whilst the Applicant's likely raising of a dispute with the Respondent would factor into my consideration of the duration of any extension of time were the discretion available, the raising of such a dispute is not in and of itself an exceptional circumstance. There is no credible or acceptable reason for the delay in this case and the remaining matters are neutral on the question of whether exceptional circumstances exist.

[31] In light of my conclusion that there is no basis for the grant of an extension of time, the Applicant's application must be dismissed. For the avoidance of doubt, this result does not affect the Applicant's right to pursue any underpayments that he believes are due to him.

[32] An order giving effect to this decision is published separately.

[3] See Taylor v. Department of Justice and Community Safety [2025] FWCFB 173 at [71]- [72].

[4] [2018] FWCFB 901

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) [2018] FWCFB 901 at [38]- [39].

[6] [2011] FWAFB 975.

[7] Kurtev v. KCB Australia & Anor [2025] FWCFB 13 at [24], Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [17].

[8] Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [18].

[11] Mundell v. Avon Products [2013] FWC 1368, at [21], Nicolas v. Nortask [2014] FWC 5324 [62].

[13] Clarke v. Service to Youth Council Incorporated [2013] FCA 1018 at [31]

[14] Withers v. Contare [2022] FWC 967 at [33]- [37].

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