s.365 - General protections

Application to deal with contraventions involving dismissal - application lodged 53 days out of time - no exceptional circumstances - application dismissed

• [1] Mr Jon Barnes (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 19 September 2025. The Applicant claims his employment was terminated Motorama Springwood (the Respondent) in breach of s.340, 343, 348 and 358 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Applicant was dismissed effective from 7 July 2025. The 21-day period following the effective date of dismissal ended on 28 July 2025. The Application was lodged 53 days outside of the 21-day statutory timeframe prescribed under s.366(1)(a) of the Act. The Application can only be accepted if the Commission allows an extension of time, taking into the factors in s.366(2) which I have considered below.

• [3] With the parties' consent, I have determined the application for an extension of time on the papers.

Should an extension of time be granted under s.366(2) of the Act?

• [4] Section 366 of the Act provides when a further period may be granted to accept a late application.

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

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

(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 like position.

• [5] There must be exceptional circumstances in order to be granted a further period to lodge this application. In summary, exceptional circumstances are:

• Out of the ordinary course, unusual, special or uncommon. It does not need to be unique, unprecedented or vary rare.

• • It can be 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. [1]

Section 366(2)(a) - Reason for delay

• [6] The Applicant explained his delay in the Form F8 as follows:

I did not file within 21 days as I was actively pursuing resolution directly with the employer and its Parent company Servco, in good faith

Since my dismissal I have: ● submitted a detail complanit & settlement Proposal to Serveco ● Gathered all evidence, including TXT messages from the [Dealer Principal] that appear outside the HR process ● Loged a Legal Aid application with complete case file

My delay was due to focusing on these avenues rather than filing immediately. Given the seriousness of the [Dealer Principal]'s conduct, the absense of Proper HR Process in my dismisal, and the fact that I acted promptly once I understood fair work was the correct path, I respectfully request that this application be accepted out of time.

• [7] In the Applicant's submissions, he elaborated on the dates of the actions he took prior to lodging this claim:

On 9 September 2025 I posted a review online expressing how the dismissal had affected me. This led to phone calls and text messages from my former manager on 12 September 2025 that were aggressive in tone...

15 September 2025 - I sent a detailed email to Servco's Vice President of HR raising my concerns.

19 September 2025 - I lodged my application with the Fair Work Commission.

20 September 2025 - I sent a follow-up email to Servco as I had received no acknowledgement.

26 September 2025 - I sent a third email to Servco making another attempt to resolve matters.

• [8] I note that none of the actions the Applicant's actions took place within the 21-day period following the effective date of his dismissal. The Applicant's excuse that he was delayed in filing this claim as he was pursuing alternative means of resolution is very weak. The Applicant did not do anything until after the limitation period had already expired.

• [9] The earliest action taken by the Applicant was on 9 September 2025, when the Applicant posted a Google review of the business. I have not been provided with a copy of that review. Further, I question whether posting one disaffected Google Review could be considered an action taken to the dispute the dismissal. Even if I accepted that the review put the Respondent on notice that the Applicant intended to challenge his dismissal, the Applicant did not post the review until 43 days after the limitation period expired.

• [10] The other reasons provided for the delay include that the Applicant "did not understand the 21-day rule" and that he had been emotionally impacted by the dismissal. Neither of these explanations are acceptable reasons for delay. It is well established that an ignorance of the law does not constitute an exceptional circumstance. Neither is an emotional reaction to having one's employment terminated an exceptional circumstance. Having an emotional reaction to a change in life circumstances is common and expected.

• [11] I find that the Applicant has not provided an acceptable explanation for the delay of 53 days. This weighs against the extension of time.

Section 366(2)(b) - Any action taken by the person to dispute the dismissal

• [12] As detailed above, the Applicant posted a negative Google review of the business on 9 September 2025. The Applicant also sent an email to an email address of a related entity of the Respondent on 15 September 2025. That email does not specifically address the circumstances of the Applicant's dismissal but rather requests that the actions of the Respondent's Dealer Principal be investigated.

• [13] The Applicant refers to making an application in the Queensland Human Rights Commission and making an enquiry with Legal Aid. I have not seen evidence for either of those actions.

• [14] There is no evidence of the Applicant taking action to dispute the dismissal within the limitation period. I find that this factor weighs against an extension of time.

Section 366(2)(c) - Prejudice to the employer (including prejudice caused by the delay)

• [15] The Applicant submitted that the delay will not cause prejudice to the Respondent. The Applicant stated: "My correspondence to Servco was sent well before any steps were taken in these proceedings and gave clear notice of the issues I was raising." The suggestion that the Respondent had notice of the claim well in advance is, on the evidence, untrue.

• [16] The Respondent submitted that granting an extension of time would cause unduly prejudice.

• [17] In the circumstances, considering the lengthy delay, I consider there is prejudice to the employer. I consider this factor to weigh marginally against an extension of time.

Section 366(2)(d) - Merits of the application

• [18] It is not appropriate to embark on a detailed exploration of the merits of the matter when considering whether to grant an extension of time.

• [19] In Kornicki v Telstra-Network Technology Group,[2] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

• [20] In this case, it appears that the Applicant is mounting an argument that his termination was "not a genuine redundancy" and he appears to principally refer to conduct engaged in by the Respondent after the dismissal. In a general protections application involving dismissal, these are fundamentally misconceived arguments. I consider that the application has little merit.

• [21] I find this factor weighs marginally against an extension of time.

Section 366(2)(e) - Fairness as between the person and other persons in a like position

• [22] The Applicant did not provide submissions on this point. I note that it is common for applicants to be ignorant of the statutory timeframe for dismissal related applications. That does not give rise to an exceptional circumstance.

• [23] Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. Accordingly, the extension of time is not granted and the application is dismissed.

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

[2] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

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