Fair Work Act 2009

s.365 - General protections

Application for the Commission to deal with a dismissal dispute under s.365 of the Act - application filed 17 days out of time - extension not granted - application dismissed

[1] Ms Julie Saylor has made an application under s.365 of the Fair Work Act 2009 (the Act) in which she alleges she was dismissed by Wyndham City Council (Respondent) in contravention of Part 3-1 of the Act. Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2). In her Form F8 - General Protections Application Involving Dismissal (Form F8) lodged on 30 June 2025, Ms Saylor acknowledged that the Form F8 was not being lodged within the required 21-day timeframe. In its Form F8A - Response to General Protections Application (Form F8A), the Respondent has objected to Ms Saylor's application on the basis that it was lodged out of time.

[2] While it is not in dispute that Ms Saylor made her application outside of the 21-day statutory timeframe, the period of the delay was the subject of conjecture and 4 different periods were proffered, as set out below:

• 1) Notification on 19 or 20 May 2025 - 20-day delay (11 June 2025 - 30 June 2025): This is predicated on the Respondent having notified Ms Saylor of her termination with immediate effect when it sent her a termination letter by email at 5.13pm on Monday 19 May 2025. This email was sent to what the Respondent knew to be Ms Saylor's work and personal email addresses. If this is taken to have been when Ms Saylor was notified of her dismissal, the 21-day period ended on Tuesday 10 June 2025, by virtue of Monday 9 June 2025 being a public holiday in Victoria.[1]

It is alternatively predicated on the Respondent having notified Ms Saylor of her termination when Ms Carly Bird sent Ms Saylor the termination letter by email to an alternate personal email address of Ms Saylor at 11.51am on Tuesday 20 May 2025.[2] The text of this email was:

Council understands that you have a new email address as a result of a malware issue. Please note, we sent the attached email and termination letter to you yesterday at 5:13pm. We attach a copy of this email and the associated letter therein to this email for your records.

Please note, as you are no longer employed by Council, you are required to ensure that Council property is returned in a prompt manner. As such, given we understand you do not wish to have contact with Council at this stage, we will arrange an external courier to collect Council's property on 23 May 2025.

Whilst Council disagrees with your assertions below, as previously stated, Council remains committed to reviewing your separate concerns."

• 2) Notification on 21 May 2025 - 19-day delay (12 June 2025 - 30 June 2025): This is predicated on the Respondent having notified Ms Saylor of her termination by sending her the termination letter by express post on Tuesday 20 May 2025 to Ms Sayor's known residential address and there having been delivery confirmation from Australia Post that the letter was delivered at 10.47am am on Wednesday 21 May 2025.[3] Ms Saylor denied receiving the termination letter by express post.

• 3) Notification on 23 May 2025 - 17-day delay (14 June 2025 - 30 June 2025): This is predicated on Ms Saylor having acknowledged receipt of the Respondent's email sent on 20 May 2025 in an email she sent to Ms Carly Bird of the Respondent at 7.48am on 23 May 2025[4] and confirming at the determinative conference that she was aware that she was dismissed at this time. Ms Saylor disclosed that she hadn't checked her emails until 23 May 2025 because she was on sick leave.[5]

• 4) Notification on 26 May 2025- 14-day delay (17 June 2025 - 30 June 2025): This is predicated on Ms Saylor's pronouncement that she saw this as her last day because on this day she received a larger than usual salary payment, which led her to believe that this was her "final wage."[6]

[3] Having regard to these matters, I have determined that I will proceed on the basis that Ms Saylor's dismissal took effect on 23 May 2025, when Ms Saylor read the 20 May 2025 email from Ms Bird. As such, Ms Saylor's application was made 17 days late.

• [4] The Commission may allow a further period for the making of an application under s.365 only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in s.366(2)(a) to (e) of the Act. 'Exceptional circumstances' are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[7] Exceptional circumstances may include 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 can be considered exceptional.[8]

• [5] The requirement that there be 'exceptional circumstances' before time can be extended under s.366(2) of the Act has been described by a Full Bench of this Commission as imposing a "very high bar...required to be surmounted in order to obtain an extension of time to lodge an application".[9] The "very high bar" of this requirement contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is "fair" to do so.

[6] The Commission's obligation to take into account the matters outlined in s.366(2)(a) to (e) of the Act requires each of these matters to be considered and given appropriate weight in the assessment of whether there are exceptional circumstances.

• [7] As to the reason(s) for the 17-day delay (s.366(2)(a)), the Act does not specify what reason for the delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all the circumstances must be considered.[10]

• [8] The delay required to be considered is the period beyond the prescribed 21-day period for the making of the application. It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for, in this case, the 17-day delay, or any part of that delay, beyond the 21-day period.[11]

• [9] Addressing the period that immediately followed learning of her dismissal, Ms Saylor said that she experienced a decline in her mental health and emotional well-being which resulted in her experiencing migraines, developing a rash, suffering hair loss and enduring a lack of sleep. Ms Saylor was on a period of personal leave when she was dismissed and had attended a consultation with her general practitioner on or about 20 May 2025. Ms Saylor said that her next appointment took place in mid-June 2025 and gave details of medication she was being prescribed. In this regard, she produced ePrescription records that detailed medications prescribed on 16 and 22 May 2025. Five weeks after the lodgement of her application, new medication was prescribed during August, September and October 2025.[12] Ms Saylor said that the general practitioners she initially consulted were Dr Neil and Dr Chang and referenced a mental health plan having been developed in mid-June 2025. In addition, she filed a Medical Certificate from Dr Ravi Kukreja dated 7 November 2025 which confirmed that Ms Saylor started consulting him on 8 August 2025 for anxiety and depression.[13] Ms Saylor also produced a letter dated 4 December 2025 from a psychologist, Ms Helen Handsjuk. This letter detailed that Dr Kukreja had referred Ms Saylor to Ms Handsjuk on 1 September 2025 for anxiety and depression symptoms that had "reportedly commenced and intensified after Ms Saylor was unexpectedly terminated."

[10] Ms Saylor also gave evidence that during the period following 23 May 2025, she consulted Maurice Blackburn lawyers regarding WorkCover options, First Nations stakeholders and the Australian Human Rights Commission. These actions appeared to have occurred before she contacted the Fair Work Commission by telephone on 12 June 2025. Ms Saylor said that during this telephone call, she was informed that she was not eligible to make an unfair dismissal application and made aware in relation to the 21-day time limit. Ms Saylor also produced a copy of the text messages she received from the Commission after her telephone call with the Commission on 12 June 2025. These included:

1. A hyperlink for access to information about "general protections involving dismissal".
2. A hyperlink to the general protections "quiz".
3. A hyperlink for making an application online.
4. A caution regarding making application within the 21-day time limit expressed in the following terms, "Make sure you apply within 21 calendar days after your dismissal took effect."
5. A Fair Work Commission telephone number.
6. A hyperlink to information regarding the Workplace Advice Service.
7. A hyperlink for information in relation to sourcing legal advice.

[11] To the extent Ms Saylor relies on not having been able to access the contents of the termination letter to find out the reasons for her dismissal, and waiting for an opportunity to do so as a reason for the delay, I do not consider this constitutes an acceptable or reasonable explanation. At the point of her dismissal, Ms Saylor was already aggrieved by her experience as an employee of the Respondent. Further, whereas the reasons for the dismissal given by the Respondent were a failure to follow lawful and reasonable directions, a failure to provide requested information and the allegation that she re-engaged two employees without approval and the required paperwork, Ms Saylor's application is based on the allegation that she was dismissed because of her race and having been temporarily absent from work because of illness. It is therefore not apparent how not being appraised of the former might have impacted or informed being able to allege the latter.

• [12] Further, and as outlined above, Ms Saylor had already made enquiries about pursuing other avenues prior to contacting the Commission on 12 June 2025. Spending the time making those enquiries was of Ms Saylor's own choosing and having to weigh options and decide upon a course of action is a dynamic routinely confronted by prospective applicants. All the while, as can be seen from Ms Saylor's experience, the Commission is very accessible and has available extensive information to assist prospective applicants. While I accept Ms Saylor may not have had prior experience with either the general protections provisions or dealing with the Commission processes and the 21-day time period, it is well established that ignorance of one's rights will not usually provide an acceptable explanation for a delay in lodging an application within the time prescribed[14] and unfamiliarity is not exceptional. General protections applications can be and are routinely made by reference to the Commission's website.

[13] At the point of consulting the Commission, Ms Saylor was still just inside the 21-day time limit. Time was of the essence but it was not until 30 June 2025, 18 days later, that she lodged her application. Ms Saylor said it took her this long to complete the Form F8 and lodge her application due to having been traumatised and her resultant mental health. Ms Saylor gave evidence of experiencing a lack of sleep and suffering migraines and said that it was not until after 20 June 2025 that her medication started to be effective and she felt mentally and physically healthy enough to commence making her an application. Ms Saylor also said that it was at this time that she felt she had collated all the information she needed in order to do so. In particular, Ms Saylor described being "triggered" by the question on the Form F8 requiring an outline of why she was submitting her application.

• [14] I have noted the various steps Ms Saylor was able to take during the 21-day period following her dismissal and while I have also noted the certificate of Dr Kukreja, he was not a witness before me such that his observations could not be engaged with. Regardless, Dr Kukreja did not begin treating Ms Saylor until after she had lodged her application. I have, nonetheless, also had regard to Ms Saylor's evidence going to her state of mind and her symptoms following her dismissal. I would observe that Ms Saylor had also reported experiencing declining mental and emotional health with the accompanying loss of hair, serious rashes and a struggle with going to work as at the end of April, which was before her dismissal.[15]

[15] While I accept that Ms Saylor suffered from the symptoms she has reported, and that she experienced a negative reaction as a result of her dismissal, these things are not, of themselves, unusual. Stress, anxiety, shock and a degree of trauma from a dismissal are not uncommon reactions. In this case, I am not persuaded that Ms Saylor's symptoms rendered her so debilitated that she could not take the necessary steps to make an application during the 21-day period following her dismissal, or more expeditiously in the days that followed after having been made aware of the 21-day time limit and urged to apply within it. In my assessment, the reasons for delay weigh against a conclusion that there are exceptional circumstances in this case.

[16] As to the other mandatory considerations, I observe that Ms Saylor disputed the asserted dismissal in the email she sent Ms Bird on 23 May 2025 (s.366(2)(b)). This factor therefore weighs in favour of an extension. Secondly, I do not consider there to be any prejudice to the Respondent associated with the delay in this case (s.366(2)(c)) and consider this to be a neutral factor. Thirdly, Ms Saylor addressed the factor related to fairness between Ms Saylor and other persons in a like position by giving examples of other First Nations employees of the Respondent who had not been dismissed by the Respondent and another colleague who while also dismissed, was dismissed in person. Cases of this kind will generally turn on their own facts and I consider this s.366(2)(e) factor also to be a neutral factor.

[17] I am required to "take into account" the merits of the application in considering whether to extend time (s.366(2)(c)) so some assessment of the merits must be made. However, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding. I have outlined, in broad terms, the contest between the parties when it comes to the merits if the case in paragraph [11] above. The merits would depend on factual findings made by a court after hearing the evidence and I am not able to make any firm assessment at this stage. Because I do not consider the merits to tell for or against an extension of time, I regard them as a neutral consideration.

• [18] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s.366(2), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is dismissed. An order[16] to that effect will be issued with this decision.

[1] See s.40A of the Act, and s.36 of the Acts Interpretation Act 1901 as in force on 25 June 2009

[2] Digital Court Book (DCB) at 164, Ms Saylor had brought this alternate personal email address to the Respondent's attention on the evening of 19 May 2025.

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

[9] Mohammed Ayub v NSW Trains [2016] FWCFB 5500 at [36].

[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[11] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

[14] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

[15] Full complaint report dated 26 June 2025, page 14, DCB.

[16] PR794979.

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