s.365 - General protections

Application for the Commission to deal with a dismissal dispute under s.365 of the Act - application filed 7 days out of time - extension not granted - application dismissed.

• [1] On 7 May 2035, Mr Kallum Stott made a general protections application involving dismissal to the Fair Work Commission pursuant to s.365 of the Fair Work Act 2009 (the Act). As it was evident from Mr Stott's Form F8 - General Protections Application Involving Dismissal (Form F8) that the application was not made within 21 calendar days after Mr Stott's dismissal took effect on 9 April 2025, Mr Stott was required to seek an extension of time in which to file his general protections application. The Respondent to this application is NBN Co Limited (Respondent) and in its Form F8A - Response to General Protections Application (Form F8A) it objected to Mr Stott's application on the basis that the application was lodged out of time.

• [2] The Act allows the Commission to extend the period within which an application under s.365 of the Act must be made only if it is satisfied that there are "exceptional circumstances", taking into account the factors in s.366(2)(a) to (e). Briefly, 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.[1] 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.[2] The requirement that the matters outlined in s.366(2)(a) to (e) be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of Mr Stott's application for an extension of time.

• [3] 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.[3]

• [4] The delay required to be considered is the period beyond the prescribed 21-day period for making an unfair dismissal application. It does not include the period from the 9 April 2025 date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 30 April 2025. 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 7-day delay, or any part of that delay, beyond the 21-day period.[4]

• [5] There is no dispute that Mr Stott was dismissed with immediate effect on Wednesday, 9 April 2025 and that Mr Stott was aware this was the case on that day. Mr Stott said that he accessed the Fair Work Commission website on Monday, 14 April 2025 and ascertained when navigating the website that free legal advice might be available through the Commission's Workplace Advice Service (WAS). Mr Stott made a request for advice through the WAS by completing the required online form. He said that upon completing the form, he was informed that he would receive a telephone call within 5 business days. Mr Stott said that the next contact he had was on Wednesday, 7 May 2025, when the WAS 'partner' allocated to his request telephoned him. He said that they had a discussion during which the 21-day time period was confirmed and he was advised that he should lodge an application without delay. Mr Stott said this advice was subsequently confirmed in an email sent to him by the WAS 'partner' later that day and he proceeded to lodge his Form F8 at 4.57pm on 7 May 2025.

• [6] Mr Stott said he first became aware of the 21-day time period five days after his dismissal when he was navigating the Commission's website on Monday, 14 April 2025. Specifically, Mr Stott confirmed that when completing the WAS request form, he came across the caution that he had 21 days from the date of his dismissal to lodge a general protections application. Mr Stott said he nonetheless wanted to wait until he had spoken with someone about his circumstances before making an application and attributes the 7-day delay, at least in part, to the fact that it was not until 7 May 2025 that the WAS partner allocated to his request contacted him.

• [7] The Commission's webpages outlining the WAS arrangements are explicit when it comes to the 21-day time period. On the webpage Legal advice from the Workplace Advice Service, it is stated, "Some of our applications have strict deadlines. If you need help before a deadline, or are not eligible, look up where to find legal help." Further if the 'deadlines' hyperlink is then accessed, the user is taken to a further webpage that outlines that the Commission must receive a general protections dismissal application within 21 days after the dismissal took effect.

• [8] Additionally, a person checking whether they are eligible for the WAS is required to click on a hyperlink for a 'request form' which takes them to the webpage Request form for Workplace Advice Service. This webpage includes the following, prominent notification:

• This service is entirely separate from making a formal application to the Commission.
• You only have 21 days from the date of dismissal to lodge a formal application for unfair dismissal or general protections dismissal.
• If you need help sooner, or are not eligible, other legal help is available."

• [9] At that point, if the user then selects the option on the webpage that indicates they want to make a request for legal advice, the following text will appear on the webpage:

"There is currently a high demand for the Workplace Advice Service. It can take us up to 5 days to reply to your request for help. It will be longer again before you have your appointment.

• Using this service is entirely separate from making a formal application to the Commission.
• You only have 21 days from the date of dismissal to lodge a formal application for unfair dismissal or general protections dismissal.
• If you need help faster than that, or are not eligible, other legal help is available.
• If you need information about COVID-19 vaccination in the workplace please visit the Fair Work Ombudsman website."

• [10] I do not consider that the WAS partner not contacting Mr Sott until 7 May 2025 constitutes an acceptable or reasonable explanation for the delay. From 14 April 2025, Mr Stott was aware of the 21-day time period as a result of his navigation of the Commission's website and the making of a request for the WAS. There was nothing to prevent Mr Stott making an application earlier than 7 May 2025. Despite having been cautioned about the 21-day time period, it was Mr Stott's decision to hold off on making an application until he had spoken with "someone" from the WAS. He did not need to wait. Applications can be and are routinely made without legal or other professional advice by reference to the Commission's website. The website is replete with material designed to assist members of the public to prepare and lodge applications or obtain assistance. As things transpired, Mr Stott was able to prepare and file the Form F8 on 7 May 2025 within a matter of hours of his discussion with the WAS partner.

• [11] Mr Stott also attributed the delay due to mental illness he asserts he suffered as a result of the dismissal. In this regard, Mr Stott filed a report dated 15 June 2025 from Dr James Minson, a psychologist who conducted two 50-minute telehealth counselling sessions on 10 and 24 April 2025. Dr Minson opined that Mr Stott presented with extremely severe anxiety and depressive symptoms related to his dismissal because he had been left feeling that there was no recourse and was facing unemployment. The suggestion inherent in Dr Minson's report was that the dismissal had exacerbated Mr Stott's pre-existing mental health symptoms. Mr Stott had attended five 50-minute telehealth counselling sessions with Dr Minson before his dismissal, on 3, 14, 20 and 27 March and 3 April 2025, and said that the dosage of his medication had been increased following his dismissal. Mr Stott otherwise stated that he was not in the right headspace following his dismissal and needed time around his family.

• [12] As to the report of Dr Minson, which could not be tested, and Mr Stott's evidence regarding his state of mind following his dismissal, I am not persuaded Mr Stott had a medical condition that rendered him so debilitated that he could take no steps in response to his dismissal during the 21-day period that followed. This is because, as I have noted above, Mr Stott was able to navigate the Commission's website and make a request for assistance from the WAS shortly after his dismissal before electing to delay making an application. Further, while I accept that Mr Stott may have experienced depressive symptoms, stress and a negative reaction as a result of his dismissal, this is not of itself unusual. Stress, anxiety, shock and a degree of trauma from a dismissal are not uncommon reactions. It is also apparent that Mr Stott had pre-existing mental health symptoms and while his medical dosage increased following his dismissal, neither a change in the frequency of his telehealth counselling sessions followed his dismissal and nor was any new or additional medical treatment considered necessary.

• [13] Having regard to the evidence before me, I am not persuaded there were circumstances within the 21-day period prescribed for making the application that provide a credible reason for the 7-day delay. Nor do I consider there was an acceptable or reasonable explanation for the 7-day delay. I consider the delay can largely be attributed to Mr Stott's decision to hold off on making an application until he had spoken to "someone", even though he knew that he had 21 days to make the application. That decision was Mr Stott's alone, and I do not consider this decision and/or his reaction to his dismissal constitute an acceptable or reasonable explanation for the delay in this case. The absence of an acceptable or reasonable explanation weighs against granting an extension of time.

Action taken to dispute the dismissal - s.366(2)(b)

• [14] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may be treated as favouring the granting of an extension of time. Although Mr Stott had no contact with the Respondent following his dismissal, he consulted the Commission's website and completed the WAS request form before eventually making the application. I am satisfied that Mr Stott's conduct can be characterised as taking action to dispute his dismissal and that this weighs in favour of an extension of time, albeit not to any great extent.

• [15] Mr Stott made no submission that there is prejudice to the Respondent, while the Respondent submitted that prejudice would be occasioned if an extension of time was granted and it incurred management downtime, cost and expense in defending the late application. The Commission's consideration of this criterion looks to prejudice beyond the usual requirement of having to respond to a claim. I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. However, the mere absence of prejudice is not in my view a factor that would point in favour of granting an extension of time. The consideration is a neutral one.

• [16] I am required to "take into account" the merits of the application in considering whether to extend time 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. Mr Stott alleges he was dismissed for baseless grounds of performance not previously raised because he was just shy of serving the minimum period required for him to be protected from unfair dismissal because his managers did not want to deal with the disability he suffers on account of his anxiety and depression. The Respondent submitted that the reason for Mr Stott's dismissal was a genuinely held belief that he was not suitable for ongoing employment having regard to conduct and performance issues during his probationary period. The Respondent further submitted that its decision maker was unaware that Mr Stott had anxiety or depression, or any other medical condition, and that he did not take into account any disability when making the decision to terminate Mr Stott's employment.

• [17] The merits of the case would depend on factual findings made by a court after hearing the evidence. I am not able to make any firm assessment of the merits. Because I do not consider the merits to tell for or against an extension of time, I regard them as a neutral consideration.

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

• [18] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. Mr Stott did not bring to my attention any relevant matter concerning this consideration. The Respondent submitted that allowing this application to proceed would be unfair to other persons who have relied on similar circumstances and have been precluded from pursuing their general protections application. I am not persuaded by the Respondent's submission. Cases of this kind will generally turn on their own facts. I am unaware of any matter relevant to this consideration and therefore consider it to be neutral.

• [19] The requirement is that there be exceptional circumstances before time can be extended under s.366(2) of the Act. This 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. Having considered each of the considerations in s.366(2) of the Act, I have found paragraphs (c) - (e) are neutral, while paragraph (a) weighs against the granting of an extension and paragraph (b) weighs marginally in favour. Having considered these factors collectively, I am not satisfied that that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2).

• [20] Accordingly, I dismiss the application of Mr Stott to the Commission to deal with a general protections application involving dismissal. An order[5] to that effect will be issued with this decision.

Melbourne (in person and by Video using Microsoft Teams).

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

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

[4] 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].

[5] PR788823.

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