s.365 - General protections

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

[1] Mr Joseph Rhyann Samson (Applicant) has made an application under s.365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed in contravention of Part 3-1 of the Act. S.366(1)(a) of the Act requires such applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s.366(1)(b). The Applicant said that the dismissal occurred on 11 April 2025. The 21-day period therefore ended on 2 May 2025. The application was lodged on 16 March 2026, 318 days out of time. In order for the application to proceed, the Applicant requires an extension of time. The Commission may only extend time of it is satisfied that there are 'exceptional circumstances', taking into account the matters in s.366(2)(a)-(f).

[2] As to the reason for delay (s 366(2)(a)), the Applicant said that there was uncertainty about the date and nature of the dismissal. After engaging solicitors to assist in addressing his entitlements, he did not appreciate that the 21 day timeframe might apply. This is not a good or reasonable explanation for the Applicant's delay in filing his claim of contraventions involving the General Protections provisions of the Act, approximately 10 months out of time. Even if confusion regarding the dismissal date is accepted, the Applicant has not provided a reasonable explanation for the very long delay in filing his claim of contraventions involving the General Protections provisions of the Act. The Applicant could have lodged his application within time. The reason for the delay weighs against an extension of time.

[3] As to the matters in ss.366(2)(b), (c) and (e), I note the following. I accept that the Applicant took some action to dispute his dismissal by contacting the Respondent about his dismissal (s.366(2)(b)). This weighs moderately in favour of an extension. There is no prejudice to the employer (s.366(2)(c)). I consider this to be a neutral factor. In my view, there are no matters that are relevant to the question of fairness between the Applicant and other people in a similar position (s.366(2)(e)).

[4] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested, but the merits (s.366(2)(d)) are nonetheless a factor that I am required to take into account in assessing whether there are exceptional circumstances.

[5] The Applicant submitted that he instructed to leave on 11 April 2025 by someone who was not employed by the employer and had no authority over his employment, no allegations were brought to him, and he was not given an opportunity to respond. After requesting payment of his entitlements, inconsistent explanations were provided and new allegations that were not raised during my employment were brought forward.

[6] The merits of the application turn on points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.

[7] I do not consider the merits of the present case to tell for or against an extension of time. I consider this to be a neutral consideration.

[8] The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking into account the matters in s.366(2) of the Act, I am not satisfied that there are exceptional circumstances in this case. Consequently, there is no basis for the Commission to extend time.

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