Jordan Trew [2026] FWC 698 (3 March 2026)

s.365 - General protections

Application made under s 365 - extension of time - application dismissed.

• [1] Mr Jordan Trew has made an application under s.365 of the Fair Work Act 2009 (Cth) in which he alleges that he was dismissed in contravention of Part 3-1. The applicant states that his dismissal occurred on 6 January 2026 and that he was forced to resign. Assuming for present purposes that the applicant was dismissed from his employment, the 21-day time prescribed by s.366(1) of the Act expired at 11:59 pm on 27 January 2026.[1] The applicant lodged his general protections application at 11:56 pm on 28 January 2026, one day late. In order for the application to proceed, the applicant requires an extension of time. The Commission can only extend time if it is satisfied that there are "exceptional circumstances", taking into account the matters in s.366(2) of the Act.

• [2] As to the reasons for delay,[2] the period of the delay concerned is the period between midnight on 27 January until 11:56 pm on 28 January, when the application was lodged. However, the circumstances from the date the dismissal took effect may be relevant in assessing whether the reasons for the delay are acceptable, reasonable or credible and may inform the weight that is attached to the reason. In this case, this relates to the circumstances in relation to the period between 6 January 2026 until midnight on 28 January 2026.

[3] The applicant's explanation for the delay is that on 27 January 2026 there was a power outage affecting his home from 7 pm due to extreme weather, and that the electricity provider advised that power would not be returned until 6 am the next morning. Whilst power did resume around 11:30 pm that night, the applicant had already left to stay at another location due to the power outage and states that he "therefore did not have access to all of my resources to submit the application before midnight."

[4] I do not accept that this is a reasonable explanation for the delay. The outage of power was for a short timeframe of 5 hours between 7pm and midnight on the very last day for lodging his application. I accept that the power outage during extreme weather was unusual. However, the applicant elected to not attempt to submit the application until the last minute, with the attendant risk of something going awry, which it did. The applicant had also temporarily relocated to somewhere else that had electricity, and no sufficient explanation has been provided as to why he was unable to submit the application from there. Importantly, the applicant does not specify which resources he did not have access to that were necessary to submit his general protections application before midnight. For example, the application form could have been submitted with the basic details before midnight and further information provided the next morning if necessary. The application form along with other information on the Commission's website makes it clear that an extension of time may only be given if there are exceptional circumstances, and that this is a high bar. Further, the application was not made until 11:56 pm the next night, almost a full day later, and no explanation has been provided for this period of delay. The absence of an acceptable reason for the delay weighs against a conclusion that there are exceptional circumstances and the granting of additional time.

[5] As to the matters in s.366(2)(b)(c),(d) and (e) I accept the applicant's submission that he had been in ongoing discussions since the day he tendered his resignation. However, the applicant has not detailed the nature of such discussions and whether they constituted action to dispute the dismissal. However, I have treated this as slightly in favour of a finding of exceptional circumstances. There is no prejudice to the employer, and this is a neutral factor.

[6] As to the merits of the application, the Applicant submits that his resignation was "the foreseeable consequence of sustained pressure, prejudicial alteration of working arrangements, and disregard of medical advice." The circumstances involved the applicant being required to cease solely working from home and attend the office on some occasions. In February 2025, the applicant sought and was granted an exemption from the then requirement to work at least some time from the office. Under a revised policy in August 2025, discussions ensued and on 23 October 2025 the applicant was informed he would be required to work one day per month from the office. His medical letter dated 20 October 2025 stated that he would be fit to trial working one day per month from the office from 17 November 2025. On the same date he was certified as being unfit for any work for a period followed by a staggered return to work, ultimately returning to his regular hours from 1 December 2025. The applicant says that he continued to experience pressure regarding implementation of the monthly office attendance requirement and conveyed to his manager the cumulative impact of "the situation" on his health, and that if "matters did not change", he feared he may be unable to continue his employment. From these events, the merits of the applicant's case do not appear strong. It appears that the applicant simply was strongly opposed to being required to attend the office at all. The employer appears to have acted reasonably and consistent with the applicant's medical advice that he was fit to trial working from the office one day per month, which was all he was being directed to do. The applicant had several alternatives to resigning. He could have raised a dispute under the enterprise agreement; he could have trialled the arrangements, consistent with his medical advice. In my view, the merits of the application is at best a neutral consideration. Finally, no relevant matters regarding the question of fairness between the applicant and other people in a similar position have been drawn to my attention.

[7] Taking into account the matters in s.366(2) of the Act, I am not satisfied that there are exceptional circumstances in this case. There is therefore no basis for the Commission to extend time for the applicant to make the application. The general protections involving dismissal application is therefore dismissed.

[8] I order that the application under section 365 of the Act made by Jordan Trew on 28 January 2026 in case number C2026/766 is dismissed.

[1] I consider the application for extension of time can be dealt with on the assumption that there was a dismissal from employment: Graeme Taylor v Department of Justice and Community Safety [2025] FWCFB 173 at [71]- [73].

[2] Section 366(2)(a) of the Act.

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