Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - application for extension of time - no exceptional circumstances - application dismissed

• [1] Ms Julie-Ann Ross (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 26 July 2025. The Applicant claimed her employment was terminated by Gold Coast Community Legal Centre (the Respondent) in breach of ss. 340, 341, 343 and 351 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Applicant's employment ended effective from 30 June 2025. The application was lodged 5 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] A recent decision of the Full Bench of the Commission in Taylor v Department of Justice and Community Safety [2025] FWCFB 173 considers the circumstances where the Commission needs to determine that there has been a dismissal prior to deciding whether to extend the time to make an application. The decision is in relation to unfair dismissal applications though the Full Bench's comments are also applicable to general protections applications involving dismissal.

• [4] The Full Bench appears to accept, at paragraph [72], that where the date the employment ended is not dispute, then it is not necessary to conclusively determine whether there has been a dismissal prior to deciding whether to grant an extension of time.

• [5] In this matter, the Respondent argues that the Applicant's employment ended through effluxion of time as a result of the expiry of her fixed term contract. The Applicant argues that she was dismissed. However, it is not contested that the Applicant's employment ended effective from 30 June 2025. Given there is no dispute about the date when the Applicant's employment ended, it is not necessary for me to determine whether the Applicant was dismissed within the meaning of s.386 of the Fair Work Act prior to considering whether to grant an extension of time.

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

• [6] Section 366 of the Act provides when a further period is 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.

• [7] 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

• [8] The Applicant advances two reasons for delay: representative error and emotional shock. She says that these circumstances cumulatively amount to exceptional circumstances which warrant an extension of time.

• [9] The Applicant is a solicitor, practising in family law.

• [10] The Applicant became aware of the dismissal on 3 June 2025. She was informed on that date that her employment contract would not be renewed. The contract expired on 30 June 2025. The Applicant was aware of the 21-day limitation period to file in the Commission.

• [11] The Applicant describes the events following 3 June 2025:

44. For the next two to three weeks I slept in my bed or on my lounge.

45. I only spoke on the phone a couple of times to friends and family.

1. I considered attaining a referral for psychological medical assistance as I knew that I was in a very bad place.[2]

• [12] The Applicant was referred by a colleague to Rubix Legal, who she contacted by phone on 27 June 2025. She had her first appointment on 1 July 2025.

• [13] The Applicant claims that Rubix Legal did not advise her of the 21-day limitation period. However, the Applicant also admits that she already knew of the limitation period.

• [14] The Applicant states that she was advised to attempt private negotiations prior to lodging a claim. The Applicant notes in her submissions:

It was suggested by Rubix Legal that I should attempt private negotiations as a first action in my matter. I agreed to this and a Client Contract was entered into by myself for the legal scope only of the preparation of letter of demand and a separate without out prejudice letter.

• [15] On 13 July 2025, the Applicant wrote to Rubix Legal as she concerned about the 21-day limitation period:

e. On the 14 July I received another correspondence from Rubix Legal suggesting that a claim may need to be filed to stop the clock while negotiations were ongoing.

f. This correspondence also stated that Rubix Legal don't hold instructions to also file the application in FWC and should I engage them to file the Application they would forward me a further scope agreement or alternatively I could file it myself.

• [16] The Applicant filed an unfair dismissal claim on 16 July 2025, within the limitation period. However, she says this was the "wrong form". On 22 July 2025, the day after the limitation period expired, after she had been researching, the Applicant formed the view that she should have lodged a general protections claim instead.

• [17] The Applicant contacted Rubix Legal on 22 July 2025, and they suggested that she file a general protections by midnight on 22 July 2025. The Applicant states that she was not informed that filing by midnight would cure the late filing, but that it was the best that could be done.

• [18] On 22 July 2025, the Applicant lodged a general protections application. She did not discontinue the unfair dismissal application. She claims that she was not informed of the bar to multiple dismissal-related applications under s.725 of the Act.

• [19] On 24 July 2025, the Applicant rang the Commission and was advised that her general protections application would not be considered as she had an existing unfair dismissal claim open. She states that she was advised that she would need to discontinue both applications and file a new application.

• [20] However, the Applicant did not discontinue both applications. She lodged a further general protections application on 24 July 2025. She wrote in her submissions:

1. I filed a new General Protections Application 24 July 2025. I did not receive a confirmation of this latest filing and was very concerned so I then rang FWC on the morning of 25 July 2025 to confirm they had received my last Application. Further that the previous Applications are now to be discontinued.

1. I was then informed that is not how it works I have to discontinue the previous Applications first before I file the final Application.

• [21] The Applicant discontinued the previous applications on the phone with the Commission on 25 July 2025. However, I note after speaking with the Commission, the Applicant did not lodge a further application until the following afternoon, 26 July 2025, at approximately 4:00pm.

• [22] The Applicant is not a lay person. She is a solicitor. I appreciate that she does not practise employment law. However, I have no doubt that she understands the effect of a limitation period and understands that courts and tribunals will require applications to be made using the correct form.

• [23] I do not accept the Applicant's argument of representative error. As the Applicant's submissions make clear, the scope of work she instructed her solicitor to perform was limited to private negotiations through without prejudice letters. Her solicitors were not instructed to lodge an application form in the Commission, to save costs. This was a choice the Applicant made.

• [24] The errors in lodgement were the Applicant's own errors. However, it is not clear to me why the Applicant perceived lodging an unfair dismissal application to be an "error". The procedural fairness matters she described in the hearing could substantiate an unfair dismissal claim. She appeared to have met the minimum employment period for unfair dismissal applications at the time of her dismissal. It could be that the Applicant simply decided that another jurisdiction would bring her a better result. That does not amount to representative error.

• [25] If it were true, as the alleged by the Applicant, that she was not informed of the 21-day limitation period by her solicitors, it is unclear why that should amount to a reason to grant an extension of time. The Applicant was independently aware of the limitation period. She has previously lodged a general protections application, using the correct form and within time, for a matter involving a different employer in 2016.

• [26] I note also that the Applicant was on notice about the date her employment would be ending since 3 June 2025. On the Applicant's own evidence, she first researched the "correct" application form to lodge on 22 July 2025, 49 days after being informed of the impending end of her employment. The Applicant received more notice of the end of her employment than most applicants in the Commission do. It is not explained why she could not have attended to researching the correct form during the 21-day limitation period.

• [27] Even if I accepted, which I do not, that the Applicant has an acceptable explanation for the delay until 22 July 2025, being when the first general protections application was lodged, there was still a further delay of 4 days until this current application was lodged.

• [28] In relation to the Applicant's claim that she was not informed by her solicitor of the bar against multiple dismissal-related applications, I note that there is no direct evidence from the solicitor to support that claim. Further, the Applicant limited the scope of the legal advice to matters relating to without prejudice offers. Her solicitors were not retained to advise her on filing an application. This is also a matter which the Applicant could have researched independently.

• [29] I note finally that the Applicant, even after being advised that she would have to discontinue the previous applications, did not do so. Then, after she finally discontinued the previous dismissal-related applications, she waited a further day to lodge this application.

• [30] The claim of representative error is rejected.

• [31] The Applicant notes that she experienced emotional shock and panic attacks after she was informed that her employment would be ending. I note that the Applicant appeared distressed during the hearing. The Applicant, however, did not provide any medical evidence.

• [32] I do not doubt that the Applicant experienced shock and distress following being informed that her employment would end. The Applicant was employed a Senior Solicitor. It is to be expected that losing that job would result in emotional shock and distress. However, I am not satisfied on the material before me that the Applicant's mental state was such that she was prevented from correctly lodging a general protections application within the 21-day statutory timeframe.

• [33] The Applicant has not provided an acceptable reason for the delay. This weighs against an extension of time.

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

• [34] The Applicant lodged an unfair dismissal application prior to the expiry of the 21-day period, on 16 July 2025. However, the application was discontinued prior to service on the Respondent. The Applicant further engaged a solicitor to send without prejudice correspondence to the Respondent, but the correspondence was not sent until after the 21-day limitation period expired. The further applications lodged by the Applicant on 22 July and 24 July 2025 were also discontinued prior to service on the Respondent.

• [35] I am satisfied that the Applicant took some action to dispute the dismissal prior to lodging this application. This consideration weighs marginally in favour granting an extension of time.

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

• [36] The Respondent submitted that it is entitled to expect that applications are filed within the statutory timeframe. I accept that submission, but I note that there is no evidence of prejudice as a result of the delay of 5 days.

• [37] I consider that this is a neutral factor.

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

• [38] 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.

• [39] In Kornicki v Telstra-Network Technology Group,[3] 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."

• [40] The Applicant claims that her employment was not a true fixed-term contract, as it provided rights to either party to terminate prior to the expiry date. The Applicant further asserts that the Respondent recruited for her role prior to the contract ending and that the Applicant's age was a factor in the decision to end her employment. The Respondent denies those allegations and states the decision not to renew the contract was because of performance concerns. On the material before me, I am satisfied that the application is not without merit. I find this to be a neutral factor in this application.

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

• [41] The Applicant did not provide any submissions on this point. I note that Members of the Commission have previously found that ignorance of the bar to multiple dismissal-related applications does not provide an acceptable reason for delay, including in recent decisions such as, Boland v Downer Edi Engineering Power Pty Ltd [2025] FWC 2770 at [13]; Kwok Kit Ng v Laing O'Rourke Australia Construction Pty Ltd [2025] FWC 2030 at [15]- [16] and Rising v Barto Gold Mining Pty Ltd & Yuxin Holdings Pty Limited [2025] FWC 1405 at [36].

• [42] I find this to be a neutral factor in this application.

• [43] 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].

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

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