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[2026] FWC 732
General information, not legal advice.
Fair Work Commission
2026-03-05
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 5 March 2026.
s.365 - General protections
Queensland Police-Citizens Youth Welfare Association
Application to deal with contraventions involving dismissal - application filed before Applicant was dismissed - application not validly made - application dismissed
[2] On 11 February 2026, the Respondent lodged a Form F8A objecting to the application on the basis that it had not dismissed the Applicant. The Respondent stated that it was conducting a disciplinary process for which no determination has been made. On 16 February 2026, the Applicant emailed the Commission saying "Hi fair work I have now been dismissed, please add this to my file and arrange conciliation." The attached termination letter states:
We refer to our letter dated 12 February 2026 asking you to show cause why your employment should not be terminated following the substantiated findings regarding your conduct as Service Manager at Wynnum Fun Squad. We have considered the written response you provided on 12 February 2026 together with all information obtained during the investigation process.
The findings demonstrated that you engaged in conduct inconsistent with PCYC policies and procedures. The conduct identified represents a serious failure to model appropriate behaviour, exercise sound judgement, and uphold your obligation to maintain a psychologically safe environment for staff and children.
We confirm the decision to terminate your employment within your probation. The termination of your employment is effective today, 16 February 2026.
[3] When the file was allocated to my Chambers on 24 February 2026, I raised the issue that the application appeared to have been lodged prematurely. My Chambers sent the following email to the Chambers:
I refer to the above matter. This matter has been allocated to Deputy President Lake.
The Applicant filed a s.365 application on 17 January 2026. She attached with the Form F8 application a Form F8C application for alleged contraventions not involving dismissal. Upon reviewing the application, it seems the Form F8 was filed after the Applicant was stood down but before her employment was terminated. Please note, being stood down pending an investigation is not the same thing as being terminated.
On 16 February 2026, the Applicant emailed the Commission advising she had been dismissed and she attached a copy of a termination letter. That email is attached as service on the Respondent.
Under s.366(1) of the Fair Work Act, an application for a general protections application involving dismissal must be made "within 21 days after the dismissal took effect". The Deputy President's preliminary view is that the Applicant applied to the Commission before her dismissal took effect. Therefore, the application was lodged out of time, and the Deputy President is required to hold a hearing to determine whether to dismiss the application or waive the irregularity regarding the date the application was made (see Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070 and Pooler v Hodgson Lawyers Pty Ltd [2025] FWC 1186).
Alternatively, the Applicant may discontinue this application and lodge a new application, within the 21-day period following the effective date of dismissal, as it appears from the termination letter that the Applicant was dismissed effective from 16 February 2026.
The Applicant is to advise how she wishes to proceed. The Applicant's options are to: (1) proceed with this application, noting there will be a jurisdictional hearing or (2) discontinue this application and, if she wishes, lodge a new s.365 application. Please note, if the Applicant chooses to proceed with this application she will be required to prepare for and attend a jurisdictional hearing which may incur time and costs for both sides.
[4] Perhaps the suggestion for the Applicant to discontinue and lodge a new application was too subtle.
[5] The Applicant responded stating that she wished to continue with the application. She argued that:
The Applicant notes the strict 21-day timeframe imposed by s.366(1) of the Fair Work Act 2009. Requiring discontinuance and refiling would create unnecessary procedural duplication and carries a real risk of technical prejudice should any issue arise regarding the calculation of time.
Further, as recognised in Pooler v Hodgson Lawyers Pty Ltd, the Commission has discretion to address procedural irregularities where dismissal of the application would cause prejudice and where doing so would elevate form over substance. In this matter, dismissing the application would serve no substantive purpose and would instead cause avoidable prejudice to the Applicant.
[6] Pooler v Hodgson Lawyers Pty Ltd [2025] FWC 1186 (Pooler), which was a decision I made last year regarding a premature s.365 application, does not say anything about elevating "form over substance". I assume that submission comes from the AI Chatbot assisting the Applicant in this matter.
[7] The matter was listed for hearing on 5 March 2026. I sought submissions from both parties on the following matters:
a) whether the Commission exercise its discretion to waive any irregularity in the date of filing; or > > b) whether the application should be dismissed.
[9] The Applicant's employment contract states.
The Company may suspend you while an investigation into allegations of misconduct is being conducted, provided that we pay rostered wages under your remuneration package during the period of suspension.
[10] The Applicant was put on paid suspension on 16 January 2026. The Applicant said the Respondent could not suspend her because no investigation was underway on 16 January 2026. She argued that suspending her constituted a dismissal.
[11] The Respondent's letter to the Applicant on 16 January 2026 states:
We are writing to advise you that PCYC Queensland (PCYC) has received serious concerns about your conduct while performing your role as Service Manager at PCYC Wynnum Fun Squad.
Due to the seriousness of these concerns and the nature of the allegations, PCYC will need to undertake an investigation.
It is important to understand that no determinations about the allegations have been made and a comprehensive investigation will be conducted.
[12] The letter indicates that the suspension decision was made in order to conduct an investigation. I consider that the Applicant's arguments that the Respondent had no power to suspend her to commence an investigation into allegations of misconduct to be a strained interpretation of the contract.
[13] I find the Applicant was dismissed effective from 16 February 2026. This is a position which the Applicant accepted in later submissions and confirmed during the hearing.
[14] The Full Bench in Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070 found that the premature filing of an unfair dismissal application is an irregularity which can be waived under s.586(b). The Full Bench made the following comments:
[18] Section 394(2) is to be interpreted in the context that a person's employment must have been terminated in order to make an application for an unfair dismissal remedy.
[19] Section 394(2)(a) should not be read as itself establishing an anterior time limitation for the filing of an application for an unfair dismissal remedy; rather, it operates on the premise that s 394(1) requires that a person who may file such an application is a person whose employment has come to end at the initiative of the employer. On that premise, s 394(2)(a) requires that the application is to be filed "within" - that is, inside the limit of - 21 days after the "dismissal took effect". The use of this latter expression in s 394(2)(a) only is potentially confusing, in that it invites the proposition that the date of a dismissal and the date it takes effect may be two different things. However, having regard to our earlier analysis above, we do not consider that the expression refers to anything other than the time at which the applicant's employment relationship came to an end.
[20] Section 394(2)(b) confers a power on the Commission to extend the time for the filing of an application beyond the 21-day time limit prescribed by s 394(2)(a) in accordance with s 394(3). Section 394(3) requires that such an extension of time may only be allowed if the Commission is satisfied that there are "exceptional circumstances" taking into account six specified matters. The specific nature of this power and the highly prescriptive terms upon which it is conferred strongly indicate that s 394(2)(b) is the only power to extend the time for the filing of an unfair dismissal application and that it is not open to the Commission to extend time to lodge an unfair dismissal application by use of any general power it may otherwise possess under the Act. We return to this point later.
[21] The conclusion in the Decision that Mr Mihajlovic's employment relationship with the respondent terminated upon the expiry of his notice period on 5 September 2013 means that his application, filed as it was on 5 August 2013, was not made in accordance with the Act because the condition for the making of such an application specified in s 394(1) was not at that time yet satisfied. However, that is not the end of the matter, because it remains necessary to determine whether, in light of the fact that there is now no doubt that Mr Mihajlovic is a "person who has been dismissed", the prematurity in the lodgement of Mr Mihajlovic's application has the consequence that it is invalid and a nullity, or merely subject to a defect or irregularity which is capable of being cured by the use of the Commission's general powers.
[42] Section 394(1) is, we consider, a procedural provision which identifies who may make an application, similar to the statutory provision considered in Emanuele v Australian Securities Commission. It does not go to the jurisdiction of the Commission to grant an unfair dismissal remedy under Part 3-2 of the Act. An application which was filed prematurely is properly to be characterised as one which was not made in accordance with s.394(1) of the Act. We do not consider that the Act evinces a purpose to render any such application automatically invalid and of no effect. Rather, the Commission is conferred with a discretionary power to dismiss such an application under s.587(1)(a), either on its own initiative or upon application. The Commission also has a discretion under s.586(b) to waive any irregularity in the form or manner in which an application is made. We consider that Mr Mihajlovic's premature filing of his application constituted an irregularity in the manner in which he made his application capable of waiver under s.586(b).
[15] In the Pooler decision, I was of the view that the Full Bench's comments were also applicable to s.365 matters.
[16] The Pooler decision had similar to the facts in Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070. In both matters, the Applicant had been given a notice of termination. The Applicants then lodged an application during their notice period, but before the dismissal took effect. The facts of this matter are quite different. The Applicant had not been given notice of termination. On 17 January 2026, when she lodged the application, the only thing that had happened is that the Applicant had been suspended with pay. The suspension letter does not even mention termination. The letter states: "Any further action in relation to your employment will not be decided or taken until after you have had an opportunity to respond and the conclusion of the investigation."
[17] The Applicant said that, at the time of filing on 17 January 2026, she believed dismissal was "imminent" and "likely". The Applicant said the matter later "took the trajectory [she] suspected it would" and she was "formally dismissed" on 16 February 2026.
[18] On 11 February 2026, the Applicant emailed the Commission stating:
Unfortunately it has become clear that I completed the incorrect form. The way the employer was talking, I thought dismissal was imminent.
What do I do if my employer now say "Dismissed", I am hoping not to restart the waiting clock again.
I have responded to their "Oportunity to respond" process, but am yet to hear back. They continue to threaten me with dismissal. I don't want to waste anymore time.
[19] The Commission's case manager then replied to the application advising that the matter type could not be changed to a non-dismissal matter. It is not necessary for me to comment on whether that advice was correct. The case manager said the Applicant may wish to discontinue and lodge a new application.
[20] On 12 February 2026, the Applicant replied to the Commission, stating:
I do not intend to discontinue my general protections application.
At no stage have I been formally advised that dismissal has been ruled out, nor have I been notified of any final decision regarding my employment status. Further, I have not been informed how my substantive concerns have been assessed, addressed, or resolved.
In the absence of clear written confirmation of your organisation's position, including whether my employment has been terminated and the basis for any such decision, it would be inappropriate and unreasonable for me to withdraw my application.
I therefore confirm that I will be proceeding with the matter as lodged.
[21] At the time of filing, the Applicant had received no notice of termination. There was no reasonable basis for the Applicant to believe she had been terminated. I appreciate the Applicant suspected termination was likely. With hindsight, she turned out to be correct. However, the Respondent had not made a decision to terminate her employment on 16 January 2026. The Respondent followed what is an orthodox approach. They suspended the Applicant with pay; they gathered evidence and produced allegations; they put the allegations to the Applicant in writing for her response; they waited for the Applicant's response; they then provided a show cause letter. It was not until 16 February 2026 that the Applicant's employment was terminated.
[22] The Federal Court in Coles v Milford [2020] FCAFC 152 held:
[67] To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply. It is also open to a respondent to admit that a dismissal has occurred but dispute that the dismissal took effect within 21 days of the date that the application was filed. Such a dispute may give rise to an issue under s 366(1), involving as it does a question as to whether it is necessary for the FWC to determine whether more time should be "allowed" for the application to be made under s 365. That too is an antecedent dispute, going to the question of whether an application has been made. It is a dispute that must be resolved before the powers conferred by s 368 can be exercised at all.
[69] Whether or not it was open to the Deputy President to dismiss the application under s 587(1)(a) of the FW Act on the basis that it had not been made "in accordance with" the FW Act, may be left to a case in which the outcome might turn on it. The better view is that it is not necessary to identify an express power in the FWC to decline to act upon an application on the basis that it fails for want of jurisdiction. It may be that an application purportedly made by a person having no entitlement to make it is not an "application" for the purposes of s 587(1)(a) at all. Section 587(1)(a) has work to do in cases where an otherwise valid application has not been made in accordance with procedural rules made under the FW Act. The statutory note suggests that is its purpose (although the note does not form a part of the Act): see s 40A of the FW Act.
[23] In considering the evidence filed and the submissions made in the hearing, I am of the view that it is not possible me to waive what the Applicant says is merely an "irregularity". It is a matter of substance. The Applicant filed an application alleging she had been dismissed in breach of the Act a month before she was actually dismissed, in response to being stood down. At the time of filing, she had no reasonable basis to believe she had been dismissed. In fact, her correspondence demonstrates she knew she had not been dismissed. The application was not validly made under the Act.
[25] In this matter, I consider that the merits of the application are neutral. Some of the Applicant's arguments seem to concern alleged denials of procedural fairness, which is matter to be addressed in an unfair dismissal application, rather than a general protections application. However, the Applicant also argued that she had raised workplace grievances shortly before being suspended, which she alleges were the reason for her suspension. In that respect, the application is not devoid of merit.
[26] The Respondent did not submit that it would be prejudiced if the claim were to proceed. I note the Applicant has subsequently filed a further s.365 application, without discontinuing this matter. The Applicant said she did this as a "protective measure" to ensure the statutory time limits were complied with. Lodging a second application has had the opposite effect. The second claim falls afoul of s.725 of the Act. Causing the Respondent to respond to two applications at the same time has the potential to cause prejudice. However, the second claim is invalid and will not be able to proceed. I consider that prejudice is therefore neutral.
[27] If this application were dismissed, it would not cause prejudice to the Applicant, contrary to her submissions. The Applicant was dismissed effective from 16 February 2026. She could validly lodge a new s.365 application within the 21-day period following the effective date of dismissal without requiring a hearing on an extension of time. As the Applicant submitted, the 21-day limitation period expires on 9 March 2026. I consider that any inconvenience to the parties as a result of the Applicant lodging a new, valid application would be minimal.
I find that the application was not validly made under s.365 of the Act. Accordingly, the Application is dismissed.
[1] The Respondent's name has been corrected under s.586(a) of the Act.
[2] Applicant email to Chambers 3 March 2026 at 18:03
[3] Applicant email to the Commission, 19 February 2026 at 10:37
[4] Mihajlovic v Lifeline Macarthur [2014] FWC 1871, [5]
Printed by authority of the Commonwealth Government Printer
Kate Austin
[2026] FWC 732