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[2026] FWC 525
General information, not legal advice.
Fair Work Commission
2026-02-20
Original judgment source is linked above.
s.365 - General protections
Application to deal with contraventions involving dismissal - out of time - no exceptional circumstances - application dismissed
[1] Mr Joshua Meyer (the Applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (the Act) in which he alleges that he was dismissed in contravention of Part 3-1 of the Act.
[2] The Applicant alleges that he was dismissed effective from 1 December 2025. This Application was lodged on 13 January 2026. The application was lodged 22 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] I have determined this matter on the papers on the basis of the Applicant's Form F8. The application has not been served on the Respondent.
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:
Section 366(2)(a) - Reason for delay
[6] The Applicant initially filed an unfair dismissal application, followed by a general protections application involving dismissal. The Applicant states that, as a result of a
"procedural misunderstanding", he did not withdraw the unfair dismissal application before lodging a general protections application. Both claims were withdrawn on 12 January 2026. The Applicant then lodged this application the following afternoon, on 13 January 2026.
[7] The Applicant did not have the minimum period of employment necessary for an unfair dismissal claim. The initial Form F2 was without merit to begin with. The Applicant now seeks to rely on ignorance of the law as a reason for delay.
[8] Ignorance of the operation of s.725 of the Act does not provide an acceptable reason for delay. The Applicant states that "procedural misunderstandings" should not prevent his application from being heard. But it is not just a procedural misunderstanding. The multiple applications provisions under part 6-1 of the Act are not a mere formality, they provide fairness in ensuring that the employer is not required to defend multiple dismissal-related applications at once.
[9] Additionally, there was a further delay of one day between the Applicant discontinuing his two previous applications and lodging this one. That delay is not explained.
[10] The Applicant has not provided an acceptable reason for the delay. This weighs against a finding of exceptional circumstances.
Section 366(2)(b) - Any action taken by the person to dispute the dismissal
[11] The Applicant provided a screenshot of a text message which appears to have been sent to the Respondent on 2 December 2025. The Applicant told the Respondent that he would be starting an unfair dismissal process. I find that the Applicant took action to dispute the alleged dismissal prior to lodging this application.
[12] This consideration weighs in favour of granting an extension of time.
Section 366(2)(c) - Prejudice to the employer (including prejudice caused by the delay)
[13] I consider that prejudice to the employer is a neutral factor in this matter.
Section 366(2)(d) - Merits of the application
[14] The "dismissal" notification relied on by the Applicant stated that his shifts had been cancelled. It seems this may be referring to the Applicant no longer being required to provide work for the host. It is not entirely clear that the Applicant had been terminated from his employment with the labour hire provider, as opposed to no longer being offered shifts with that host. This is a matter which bears on the merits of the application.
[15] The Applicant asserts that he was dismissed as a result of making complaints about working conditions. The Applicant refers to an injury and taking time off work in the material. The causal nexus is not entirely clear but on the material before me, I find that the claim is not devoid of merit.
Section 366(2)(e) - Fairness as between the person and other persons in a like position
[16] The Applicant says that an extension of time should be provided to "uphold fairness for all employees in similar circumstances." I note that employees in similar circumstances have been denied extensions of time. Some recent decisions where the Commission did not provide an extension of time after the applicant filed multiple dismissal-related applications, and then filed a further one out of time, include: O'Reilly v S & E Education Pty Ltd [2026] FWC 115, Hill v Navitas Pty Limited [2026] FWC 73, Carty v We Are Gracie Pty Ltd [2025] FWC 3770 and Lyttle v Eva Copper Mine Pty Ltd [2025] FWC 3333.
[18] 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].
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