s.365 - General protections

Application to deal with contraventions involving dismissal - extension of time - application dismissed.

[1] Mr John Crees (the Applicant) has made an application under s.365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed on 5 November 2025 in contravention of Part 3-1 of the Act by BCI Minerals Limited (BCI). It is clear - and the Applicant acknowledges - that the application was lodged outside of the 21-day limit imposed by the Act. Where an application is lodged outside of the 21-day limit it can only proceed if the Applicant is granted a further period of time for lodgment under s.366(2) of the Act.

"The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

(d) the merits of the application; and

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

[3] It is a requirement of the Form F8 Application that an applicant who is lodging an application outside of the 21-day time limit must address these issues when completing the form. The Applicant in the present matter has completed the relevant section of the Form F8 and as such I have been able to make an assessment of each of those matters, which is set out below.

[4] In the first instance, I note that the Applicant also lodged an unfair dismissal claim against BCI with respect to his termination. This claim was lodged on 25 November 2025 - being within the 21-day limit - and was allocated case number U2025/18582. It appears that after initial conciliation the Applicant withdrew this application and lodged the present application on 28 January 2026, being some 84 days after his dismissal and thus 63 days out of time.

[5] Notwithstanding this, the Applicant in his submissions seeks to attribute the delay to medical issues and investigations. He submitted that he:

"...had a medical event related to my heart that remains under investigation and which is still not completely resolved. It is not an everyday occurrence; I am dealing with an unknown issue relating to chest pain/heart concern."[1]

"Had I not had my heart to worry about and was in a perfect physical and mental state that delay would not have happened."[2]

[6] The Applicant further submitted that there were further complications related to the timing of his dismissal, contending that the medical situation was compounded by the public holidays and:

"The closure of most legal resources over the December holiday period."[3]

[7] While he does make mention of his unfair dismissal claim later on in his submissions, the Applicant makes no mention of it in respect of the reason for the delay. Instead he seeks to place blame for the delay on his medical condition, noting that there is no evidence provided to give details of that condition and he does not specify which period of time should be regarded as impacted by it. This time period is clearly relevant. There can be no doubt that the Applicant was capable of making an application in the period directly after his dismissal, as he lodged his unfair dismissal claim.

• [8] The Applicant could have lodged this application at that time instead of the unfair dismissal claim and it would have been within the required time limit. He did not do so. He may seek to say that he did not understand the differences between an unfair dismissal claim and a s.365 general protections dismissal claim. Such an argument would be to no avail. As has been decided on many occasions by the FWC, lack of knowledge of the laws regarding dismissal and the requirements of filing applications is not an exceptional circumstance.[4]

• [9] With respect to the issue of the Christmas period, the FWC has previously found that this is not an exceptional circumstance[5] and in any case, the Applicant had already submitted his unfair dismissal claim long before the Christmas period began.

[10] In summary, I find that the reason for the delay was that the Applicant lodged an unfair dismissal claim, pursued that claim to first conciliation, and then decided to withdraw that claim and pursue this claim. Nothing in his medical circumstances prevented him lodging his unfair dismissal claim and so he could have instead lodged this claim. The fact that he chose - perhaps ill-advisedly - to lodge that claim instead of this claim is not an exceptional circumstance.

[11] I should add that I am in no way suggesting that the Applicant's medical issues are trivial or that they are anything other than genuine. However, the reality is that they did not prevent him from lodging his unfair dismissal claim and so in my view the delay in lodging this claim is not due to his health issues but rather his decision to lodge that claim in November rather than this present claim. Given that reason, I find that the reason for the delay weighs against a finding of exceptional circumstances.

[12] The Applicant submits that he made the unfair dismissal application to the FWC within the required time limit. He also submits that he emailed BCI immediately after dismissal making queries about the dismissal and the reasons put to him at the time he was advised that

his employment would not be extended beyond the probationary period.

• [13] Previous cases[6] have found that this matter is relevant where an applicant has dealt directly with the respondent to contest a dismissal. I am satisfied in this instance that the Applicant has made it clear that he was contesting the dismissal in a manner whereby BCI was aware of his intentions. This weighs in favour of a finding of exceptional circumstances.

• [14] The Applicant submits that there would be no prejudice to BCI if his matter were allowed to proceed. I accept this is the case. However, as has been found by the FWC previously[7], an absence of prejudice to the respondent does not weigh in favour of a finding of exceptional circumstances. As such, I regard this matter as neutral in my considerations of a finding of exceptional circumstances.

[15] As with most circumstances where there is consideration of an extension of time, it is not possible to make any reasonable assessment of the merits of the application without testing the evidence from both parties. Consistent with previous practice of the FWC, I am regarding this matter as neutral in my considerations of a finding of exceptional circumstances.

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

[16] The Applicant's submissions in respect of this matter misapprehend the intention of this provision. The provision is to draw the FWC's attention to persons within the applicant's knowledge who are in a similar position to themselves and have had a finding issued by the FWC. To illustrate, if the Applicant had identified another person in very similar circumstances to his own who had been granted an extension, this would assist his case.

[17] However, this matter is seldom called upon as applicants rarely identify such persons. In this case, with no persons identified I regard the matter as neutral in my considerations of a finding of exceptional circumstances.

[18] The Applicant in addressing this matter made an appeal to general fairness and the need to hold employers accountable. I do not regard this as assisting his case. Applications lodged in time will address the issues of fairness and - to the extent necessary - holding parties accountable. In imposing a time limit, the Federal Parliament has decided that to be given access an applicant must comply with a time limit. Implicit in this limit is the notion that some applicants may not gain access because of that limit. The Parliament has nevertheless imposed the limit and it must be complied with other than in exceptional circumstances.

[19] In assessing the relevant matters prescribed by the Act I find that they are neutral, save for the reason for the delay - which weighs against a finding of exceptional circumstances - and actions taken to dispute the dismissal, which weighs in favour. However, on balance, I find that there are no exceptional circumstances that would warrant granting an extension of time. As such, the application is made out of time and must be dismissed, and I so order.

[1] See Form F8 answer to Question 1.4 at paragraph (a).

[4] For example, see Alvarenga v Rebel Sport Ltd [2025] FWC 3929 at [10].

[5] For example, see Smith v KJM Contractors Pty Ltd [2010] FWC 5515 at [45]-[46].

[6] See for example Jenson Curtin v High Country Plumbing & Gas Fitting Pty Ltd [2022] FWC 2916 at [10].

[7] See for example Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [21].

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