Kaiqiang Xue [2026] FWC 806 (11 March 2026)

s.365 - General protections

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

[1] Mr Kaiqiang Xue (Mr Xue) 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. 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). Mr Xue's dismissal occurred on Sunday 21 December 2025. The 21-day period ended on Monday 12 January 2025 (see s 40A of the Act, and s 36 of the Acts Interpretation Act 1901 as in force on 25 June 2009). His application was lodged on 23 January 2025 (11 days out of time). For this application to proceed, Mr Xue requires an extension of time. The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in s 366(2)(a) to (e).

[2] Mr Xue has filed multiple applications with the FWC relating to his dismissal. Mr Xue was notified by email from Client Services on 16 January 2026 regarding a Minimum Employment Period issue for the first lodgement, being a s.394 application. Mr Xue was then notified by email from Client Services on 16 January 2026 of a multiple lodgement issue regarding his s.365 application, which was lodged second on 10 January 2026 before discontinuance of the s.394 application was provided. Mr Xue was also sent an SMS messages requesting a "call back" to discuss both applications. Client services have no record of having received any calls or emails from Mr Xue until 23 January 2026 when he discontinued the first and second lodgements and filed this present application.

[3] As to the reason for the delay (s 366(2)(a)), Mr Xue says that he was genuinely confused about the Unfair Dismissal and General Protections application processes. He mistakenly believed that he needed to file both to protect his rights, not realising this was prohibited under the Act. He says his primary intent was always to pursue a General Protections claim, but he simply used the incorrect form initially.

• [4] It is well accepted that ignorance of the existence of a legal right or the timeframe for lodgement associated with that right is not an exceptional circumstance.[1] Accordingly, I do not accept that Mr Xue's confusion between an unfair dismissal application and a general protections' application amounts to an exceptional circumstance.

[5] As to the other mandatory considerations, I accept that Mr Xue took action to dispute the dismissal by sending his employer an email on 25 December 2025, which I infer was in relation to his dismissal (s 366(2)(b)). This weighs marginally in favour of an extension. I do not consider there to be any prejudice to the employer associated with the relatively short delay in his case (s 366(2)(c)), nor do I consider that there are any matters that are relevant to fairness between Mr Xue and other persons in a like position (s 366(2)(e)). I consider these to be neutral factors.

[6] As to the merits (s 366(2)(d)), I do not consider the merits of the present case to tell for or against an extension of time. I regard the merits as a neutral consideration.

[7] 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 his case. There is no basis for the Commission to extend time. The application is dismissed. I order accordingly.

[1] Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472 at [23]; Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [14].

Printed by authority of the Commonwealth Government Printer