s.365 - Application to deal with contraventions involving dismissal

General protections dismissal dispute - extension of time

• [1] Mr Toms (Applicant) filed with the Commission an application under s. 365 of the Fair Work Act 2009 (Cth) against his former employer, Sunraysia Residential Services Inc (Respondent), alleging breaches of Part 3-1 of the Act. The application relates to written notice of termination being given by the Respondent to the Applicant in a letter dated 27 August 2024. That letter, inter alia, informed the Applicant that his "...final day of employment will be 8 October 2024". The dismissal followed a long period of absence, relating to an injury in respect of which a workers' compensation claim was made.

• [2] The application was filed on 31 July 2025. It was therefore filed 275 days outside of the standard time permitted by s. 366(1). An extension is required in order for the application to proceed.

• [3] Section 366(2) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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 similar position.

• [4] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters),[1] a Full Bench of this Commission considered this test for extending time 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."

• [5] 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.[2]

• [6] 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) 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."[3]

• [7] The matter before me proceeded by way of hearing on 10 November 2025, wherein the Respondent was granted permission to be represented. The Applicant was accompanied by his wife, Mrs Kara Toms, as a support person. The Applicant relied on a witness statement from himself and from Mrs Toms. The Applicant also provided a report from Mr David Lococo, psychologist. He also tendered an e-mail from a firm of solicitors concerning an inquiry he had made. The Respondent called no witnesses but did provide a number of documents that had been referred to in its written submissions. The Applicant and Mrs Toms were cross examined. I have had regard to written material provided and the oral evidence and submissions given at the hearing.

• [8] 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 29 October 2024) and the filing of the application (in this case 31 July 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.[4] 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.[5]

• [9] Two, related, explanations were offered in this regard. Firstly, it was said by the Applicant and his psychologist that he suffered from reduced capacity due to mental illness. Secondly, it was said by the Applicant that he received legal advice which "left me feeling hopeless" and which he accepted at the relevant time.

• [10] As to the first explanation, the Applicant's evidence is that he has had to "battle chronic depression and anxiety for 20 years", including a suicide attempt that left him with a permanent physical disability. His psychologist, Mr Lococo, was of the view that Mr Toms suffered from major depressive disorder with anxious distress with the following impacts:

"As a result of his depressive disorder, coupled with anxiety, Mr Tom's [sic] capacity to lodge Form F8 within 21 days following his dismissal was significantly compromised. Mr Toms lacked the capacity at the time to lodge the form within the prescribed timeline, and for some time after, due to his mental health problems and the impact on his functioning.

Mr Toms made slight improvement earlier this year and in April 20205 he returned to work...He was employed until June before ceasing his employment due to ongoing problems with his mental health, including problems with confidence and anxiety, coupled with a lack of employer trust."

• [11] Mr Lococo's report indicated that he had generally seen the Applicant weekly or fortnightly from August 2023 to the date of his report in September 2025. In its submissions, the Respondent seized on the Applicant's resumption of employment (brief as it was) in April of 2025 to make the point that his mental health difficulties were not productive of an incapacity for the entirety of the period of the delay. It also sought to establish that the Applicant's level of engagement in other matters was inconsistent with the level of incapacity asserted.

• [12] In Bianca Mamo v. ICLED Australia,[6] Deputy President Easton reviewed the caselaw relating to mental incapacity in extension of time applications in the Commission and identified the following principles relevant to the consideration of that reason as reason for delay:

(a) stress, shock, confusion and similar conditions (as a response to a dismissal) are not exceptional circumstances in and of themselves;

(b) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant's capacity to lodge the application within the statutory time limit;

(c) the evidence should positively demonstrate that the applicant's depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame; and

(d) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient.

• [13] The Applicant made a point in both his written materials and in the hearing to emphasise the lack of understanding and acknowledgement of the severity and persistence of his mental health condition:

"I've described depression and how it can bear at all levels, and its something that you don't recover from and I will live with for the rest of my life.....I nearly lost my life to an illness, how more exceptional is a person's life? Your whole life - that's exceptional. And if you nearly lose it to an illness how do they determine as a lawyer that that's not an exceptional circumstance..."[7]

• [14] In my assessment, the way in which the Respondent chose to conduct this matter amplified the lack of acknowledgement perceived by the Applicant and unnecessarily distressed and antagonised him. It is to be noted that the Respondent's position is that the termination of the employment of the Applicant came about because he was absent for medical reasons for more than 12 months and it was not satisfied that he would be able to ever perform the inherent requirements of his job on account of his mental health condition.[8] To then suggest in closing submissions that there was a question as to whether the Applicant did suffer a mental health condition[9] was most unedifying, particularly given that submission was made by an organisation that operates in the industry of disability support.

• [15] Nonetheless, the important point made by the Respondent is that the level of incapacity demonstrated by the evidence for the relevant period needs to be scrutinised. The Respondent suggested not much weight could be placed on the report of Mr Lococo, and certainly whist the Commission is not bound by the rules of evidence, there is merit in observing that the evidence was unable to be tested. An objection was foreshadowed but ultimately not pressed in relation to the report of Mr Lococo. Apart from identifying the Applicant's condition as a major depressive disorder with anxious distress, the significance of the report for present purposes are in the two quoted paragraphs set out at paragraph [10] above, which I refer to as Observation One and Observation Two respectively. The Respondent suggests that both are unreliable in the face of other evidence.

• [16] The Respondent submits that the following matters suggest that the Applicant truly did have capacity to file his Application on time:

(a) He was able to engage in detailed written debate and calculations concerning his entitlements and tax affairs approximately a month prior to being notified of his termination;

(b) He consulted with his psychologist before, at the time of, and after his termination reasonably regularly;

(c) He was able to attend his General Practitioner to maintain the currency of his certificates of capacity for Workcover purposes; and

(d) He approached a firm of Solicitors on the 20th day after the date his termination took effect.

• [17] I am not persuaded that these factors negate Observation One, for the following reasons:
• (a) The activities the Applicant engaged in July of 2024 may well be indicative of his capacity at or about that time, but the Applicant's dismissal did not take effect until October of 2024.[10] That is the reference point for Observation One. In his own evidence, the Applicant said he "crashed in August", in part because of the stress involved in attending to the entitlement and tax issues that he had identified in July.[11] This "crash" was a deterioration from a point that had already rendered him unfit to work.
• (b) Lodging a claim in the Fair Work Commission and continuing to receive care from a mental health professional (which occurred via video conference from the Applicant's lounge room chair)[12] are sufficiently different activities so as to preclude a rational inference that the capacity to the latter is necessarily conclusive of the capacity to do the former. I accept the Applicant's direct evidence that some of these appointments were better than others, some only lasted ten minutes and that he attempted the appointments because of "...how important it was to my wellbeing and getting better, trying to get better".[13]
• (c) Whilst the Applicant attended some of his General Practitioner appointments in person and some over the phone,[14] again we are talking about an activity that is fundamentally different to lodging a claim in the Commission. I accept the force of the Applicant's evidence that he felt compelled to continue these appointments to maintain the Workcover income: "...So I presented in some very, very poor states at the GP practice. But pay the bills I had to".[15]
• (d) I do not regard the Applicant's contacting of lawyers on the 20th day after the dismissal taking effect as inconsistent with the evidence of his incapacity. His evidence is that the Solicitors told him that they were unable to prepare an application in time and that an extension of time application would be unlikely to succeed. I do not accept the Respondent's submission that recounting the facts to a solicitor (which the Applicant submitted made him sicker in any event)[16] is equivalent to commencing a claim oneself.

• [18] Observation two attests to the Applicant's fitness to work in April of 2025. This is suggestive of some capacity, but the Applicant is quick to point out that he did not succeed in that employment. Nonetheless, I consider that the extent of recovery that permitted that employment to commence at all is suggestive of a capacity at or around that time to have completed a Form F8 to commence the present claim. Mrs Toms indicated that she observed from around February of 2025 a slow improvement in her husband's mood.[17] This is somewhat consistent with Observation Two.

• [19] During discussion in closing submissions, it seemed that the Applicant had essentially written off any prospect of commencing a claim under section 365 of the Act after being told by the Solicitors he had approached in October of 2024 that they would not be in a position to prepare it in a day and that an extension of time would be unlikely to succeed. Based on that, the notion of bringing a claim was "put to bed".[18] The Applicant's renewed interest in bringing a claim was not explained on the basis that the date that he lodged that claim coincided with the return for the first time in his capacity to do so. Rather, it was explained on the basis of a belief that his inability to remain in his new employment was a consequence of the ill effects of his employment with the Respondent, and it was fundamentally unjust to suggest that such a lasting and severe impact upon him was not an "exceptional circumstance".[19]

• [20] In the present matter, there is acceptable evidence of an incapacity of the relevant type and a mental state that is far more extreme than the usual, expected incidents of a termination of employment. The Respondent contends that the dismissal was brought about by the Applicant's inability to perform the inherent requirements of his position following an injury, extended absence and an absence of a forecast recovery or reasonable adjustments that would permit a return to work. The Applicant and his psychologist have explained the nature and severity of the Applicant's condition such that I accept that, at the time of the dismissal and for some period beyond the expiry of the 21 day time limit, the Applicant lacked the capacity to initiate the Application. But the evidence as to the period over which the incapacity extended at that level is inconclusive.

• [21] The Respondent drew my attention to Gonzales v. Department of Transport and Planning[20] and Jackson v. Core & Capacity Disability Support[21] in support of its opposition to the extension of time. In Gonzales there was an inconsistency between the evidence as the applicant's capacity and the conduct he in fact engaged in during the relevant period. In Jackson, the specificity of the medical evidence provided was regarded insufficient. In the current matter, I have found that the evidence demonstrates that the Applicant did suffer from an incapacity and that such incapacity is at least unusual or out of the ordinary course. Such incapacity provides a credible reason for some part of the delay.

• [22] Whilst it would be a fraught exercise to pinpoint precisely when the Applicant gained sufficient capacity to make an application, I accept that at around the time he was successful in obtaining alternative employment in April of 2025 such capacity existed. The fact that such employment was short-lived is in my view immaterial to the technical issue that falls for determination in the present matter. It was clearly highly material for the Applicant's well-being, and it would be wrong of me not to acknowledge that. The Applicant struck me as a considered and articulate advocate regarding the impacts of severe depressive illness and a person who could make a considerable and empathetic contribution to the disability services sector if and when his circumstances permitted this to occur.

• [23] In assessing the reasons for delay, I must weigh the fact that there is a credible explanation for part of the delay against the fact that there is also a substantial period for which such explanation is not available.[22]

Action taken by the Applicant to dispute his dismissal

• [24] It is not in dispute that the Applicant took some steps to initiate a section 365 application within time. Nor is it in dispute that the Respondent had no notice of this and that no application, until the present one, was made. Having regard to my findings as to the Applicant's capacity, I do not regard his apparent lack of engagement in the show cause process immediately prior to his dismissal as unhelpful to his extension of time application. His evidence on the reasons for this related to his capacity and to his belief that there was not much he could do about his termination because he understood that after 12 months on Workcover a termination was permitted.[23] In all of the circumstances, I regard his as a neutral consideration.

• [25] The Respondent has asserted it would be prejudiced by an extension being granted. It bases this on a submission that an employee who was a "primary witness" to matters the subject of workplace investigation of the Applicant is no longer employed by the Respondent. I do not regard this a persuasive submission in circumstances where the Respondent's case on the reasons for dismissal is wholly disconnected from the subject matter of the workplace investigation.

• [26] As the Respondent correctly points out, an extensive delay ordinarily gives rise to a presumption of prejudice.[24] However, in the circumstances of this case, the Respondent's case is that the uncontested show cause process which was followed by the dismissal was brought on by two things: the Applicant's record of absences and written material concerning the Applicant's injury. The Respondent has not articulated how it would be prejudiced in continuing to rely on that material. The lack of supporting evidence and lack of specificity in the submissions advanced on this issue are such that I can place no weight on them.[25] The absence of prejudice, as I have found and as unexceptional as it is, does not in and of itself weigh in favour of a finding of exceptional circumstances.[26]

• [27] Self-evidently, the granting of an extension of time disadvantages the Respondent in the sense that it neutralises the strategic advantage that the mere lateness of the filing arms the Respondent with, but that can hardly be said to be exceptional. I regard the issue of prejudice to be neutral in my considerations.

• [28] 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.[27] The Respondent submits that the Application should not be considered meritless.[28] It is not appropriate in these circumstances to treat the merits of the Application as other than a neutral matter.

Fairness between the person and other persons in a similar position

• [29] Neither party made submissions on this issue. I am not satisfied that this issue is a relevant consideration in the present matter.

• [30] Having taken each of the factors referred to in subsection 366(2) into account, I am not persuaded, on balance, to grant the extension of time sought by the Applicant.

• [31] The critical issue in this case is the reasons for delay, given that I have found all other factors to be neutral. Whilst the Applicant's experience of incapacitating mental illness for part of the period of delay is exceptional, there is an extensive part of the delay that is not accompanied by clear evidence of incapacity. Rather, there is some evidence of capacity in or about April of 2025 (more than three months before the present claim was filed). I do not consider the present circumstances provide a sound basis for finding of exceptional circumstances. Accordingly, the application must be dismissed.

• [32] An Order reflecting this decision is published separately.[29]

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

[3] [2011] FWAFB 975.

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

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

[6] [2021] FWC 3903.

[8] Respondent's submissions at paragraph 23, Exhibit R2.

[11] PN110, Exhibit A1 at Hearing Book page 11.

[20] [2024] FWC 3509.

[21] [2023] FWC 149.

[22] GHD v. Black [2023] FWCFB 38 at [41].

[24] GHD v. Black [2023] FWCFB 38.

[25] See Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16].

[26] Ozsoy v. Monstamac Industries [2014] FWCFB 2149 at [38].

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

[28] Respondent's written submissions at [24].

[29] PR795289.

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