s.365 - General protections

Application to deal with contraventions involving dismissal under s 365- extension of time - application dismissed.

[1] Ms Katherine Foyster (the Applicant) has made an application under s.365 of the Fair Work Act 2009 (Act) in which she alleges that she was dismissed in contravention of Part 3-1 of the Act by The Trustee for the Lightbell Trust (the Respondent). It is clear - and the Applicant acknowledges - that the application was lodged outside of the 21-day limit imposed by the Act. The dismissal took effect on 20 December 2025, meaning the application was due to be lodged by midnight on 10 January 2026. The application was not lodged until 3 February 2026, meaning it is twenty-four days late. Where an application is lodged outside of the 21-day limit it can only proceed if the Applicant is granted a further period of time for lodgment under s.366(2) of the Act.

"The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position."

[3] It is a requirement of the Form F8 Application that an applicant who is lodging an application outside of the 21-day time limit must address these issues when completing the form. The Applicant in the present matter has completed the relevant section of the Form F8 and as such I have been able to make an assessment of each of those matters, which is set out below.

[4] In her Form F8, the Applicant attributes the delay to her acceptance that the employment relationship had ended and her focus on finding alternative employment. She further conceded that she had found such alternative employment and having done so took the matter of her employment with the Respondent to be concluded.

[5] The Applicant submits that subsequent events - which are not described in detail but appear to be some action taken by the Respondent to cause the loss of her new employment - caused her to re-assess her position. She submits that having made this decision she acted promptly to lodge her application.

[6] In summary, the reason for the delay is that the Applicant initially decided not to pursue a remedy for the manner of her dismissal. This does not weigh in favour of a finding that exceptional circumstances exist. The Applicant's dismissal was either in breach of the general protections or it was not. If the Applicant believed that it was in breach then she had the option to pursue the matter by lodging an application within the required time limit. She did not do so. She has now, albeit in response to alleged actions by the Respondent, changed her mind and wants to pursue the dismissal.

[7] However, her application is clearly out of time. The Parliament has imposed a time limit for applications and that time limit should be rigorously observed. The granting of an extension is limited to exceptional circumstances and the Applicant having decided not to pursue a remedy and then changing her mind is not an exceptional circumstance. As such, this matter counts against a finding of exceptional circumstances.

• [8] Previous cases[1] have found that this matter is relevant where an applicant has dealt directly with the respondent to contest a dismissal. The Applicant submits that she challenged her decision by disputing the decision in writing, albeit that she does not explain what this challenge entailed. I am prepared to accept that a written challenge was made but given the lack of detail as to what it involved, I find that it weighs on slightly in favour of a finding of exceptional circumstances.

• [9] The Applicant submits, and I accept, that there would be no serious prejudice to the Respondent if the matter was heard. However, as has been found by the FWC previously[2], an absence of prejudice to the respondent does not weigh in favour of a finding of exceptional circumstances. As such, I regard this matter as neutral in my consideration.

[10] The Applicant submits that her case has merit. However, as is usually the case, the Commission does not have the benefit of having tested the evidence in a hearing. Consistent with previous practice, I therefore make no finding on merit and regard this matter as neutral in my consideration.

Fairness as between the person and other persons in a like position

[11] The Applicant's submissions in respect of this matter misapprehend the intention of this provision. The provision is to draw the FWC's attention to persons within the applicant's knowledge who are in a similar position to themselves and have had a finding issued by the FWC. To illustrate, if the Applicant had identified another person in very similar circumstances to his own who had been granted an extension, this would assist his case.

[12] However, this matter is seldom called upon as applicants rarely identify such persons. In this case, with no persons identified I regard the matter as neutral in my considerations of a finding of exceptional circumstances.

[13] The Applicant's submissions with respect to other matters essentially repeated her submissions regarding the reason for the delay and do not add any weight to the case for

[14] I have assessed the matters set out in s.366(2) of the Act. Of those five matters, three are neutral, one weighs slightly in favour of a finding of exceptional circumstances and the fifth weighs against such a finding. I am therefore satisfied that on balance there are no exceptional circumstances that would warrant an extension of time. The application is therefore outside of the time limit imposed by the Act. As such, it must be dismissed and I so order.

[1] See for example Jenson Curtin v High Country Plumbing & Gas Fitting Pty Ltd [2022] FWC 2916 at [10].

[2] See for example Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [21].

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