Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - exceptional circumstances - extension of time not granted - application dismissed.

[1] Ms Schilke (Applicant) has made an application under section 365 of the Fair Work Act 2009 (the Act) alleging that she was dismissed from her employment in circumstances that involved a contravention of Part 3-1 of the Act. Her former employer, Serco Citizens Services Pty Ltd (Respondent), disputes the application.

[2] It is not in dispute that the Applicant's employment with the Respondent came to an end on 18 August 2025. Nor is it in dispute that the present application was filed on 22 September 2025. This is 35 days after the dismissal and 14 days after the expiry of the time limit set in section 366(1)(a) of the Act for the making of the application.

[3] As the Application was filed out of time, an extension of time is required in order for the Application to proceed. This decision deals with the issue of whether such an extension will be provided. Section 366(2) of the Act provides that the Commission may allow a further period for an Application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

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

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

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

• [4] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)[1] a Full Bench of this Commission considered the provisions in s.366(2) of the Act, and said:

"[14] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension. A decision whether to extend time under s.366(2) involves the exercise of a discretion."

Furthermore, the Full Bench in that case described the task of discerning exceptional circumstances in a manner that was not consistent with a mere "tick a box" approach to the enumerated considerations, but rather involved an evaluation taking into account matters of weight and degree.[2]

• [5] The meaning of 'exceptional circumstances' in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty)[3] as follows:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

[6] The matter before me proceeded by way of an online hearing on 5 December 2025, wherein neither party was externally represented. The only witness in the proceeding was the Applicant. She was cross examined. Both parties filed written materials in support of their positions pursuant to directions issued on 10 November 2025.

• [7] Where paragraph (a) of subsection 366(2) requires the reason for "the delay" to be taken into account, the relevant delay is to be taken to be the period between the expiry of the time limit (in this case 8 September 2025) and the filing of the application (in this case 22 September 2025), and does not include the period from the date the dismissal took effect to the end of the 21 day period. Nonetheless, events and circumstances preceding "the delay" may be considered for the purposes of determining the reason for "the delay" and ultimately whether that reason supports a finding that there are exceptional circumstances.[4] An acceptable explanation of the entirety of the delay is not required to make a finding of exceptional circumstances, however it is relevant to have regard to whether the applicant has provided an explanation for the entirety or any part of the delay.[5] Three explanations were offered in this regard.

• [8] The first explanation related to the Applicant's capacity. The Applicant described in her materials a decline in her mental health leading up to, aggravated by and persisting beyond her dismissal. The decline in mental health was said to culminate in suicidal ideation, struggling to perform basic daily tasks, an inability to make sound decisions, an inability to understand formal processes and an inability to lodge an application. This decline in functioning and health was said to have occurred against a setting of Attention Deficit Hyperactivity Disorder (ADHD) which had impacted the Applicant's capacity to accurately perceive deadlines and sequence tasks and her capacity to assess whether a claim was open to her. The Applicant says she sought support from a psychologist in relation to her mental health difficulties, initially through a program available at her workplace and later through a referral obtained as part of a mental health plan prepared by her general practitioner. That mental health plan however was not prepared until October of 2025, after the application was filed. The Applicant estimates that her extreme level of incapacity persisted for "at least 2-3 weeks" after her dismissal.[6]

[9] The second explanation was that there were personal events in the relevant period that were productive of distress. These included a difficult relationship with her daughter and the serious ill health of her stepbrother of 50 years and his wife, the latter of whom had a terminal illness and succumbed to it a month or so after the present application was filed.

[10] The third explanation was said to be uncertainty as to her legal rights.

• [11] The Respondent did not cross examine the Applicant on matters relating to the reasons for delay that had been advanced, save to seek to confirm that the Applicant was able to engage with and respond to the processes leading to her dismissal in a timely manner. In response to that line of questioning, the Applicant drew a distinction between being required to respond during a meeting and creating a document.[7]

[12] It was not suggested by either party that there was any action taken after the dismissal to dispute it, other than the making of the present application. I treat this as a neutral consideration.

• [13] The employer submitted that the 14 day delay was not productive of any additional prejudice. The Applicant submitted that there was an absence of prejudice.[8]

[14] Self-evidently, the granting of an extension of time disadvantages the Respondent in the sense that it neutralises the strategic advantage that the mere lateness of the filing arms the Respondent with, but that can hardly be said to be exceptional. I regard the issue of prejudice to be neutral in my considerations.

• [15] In determining this extension of time application, the parties have not been required to provide detailed evidence on the merits of the substantive matter. This would not have been an appropriate course. Rather, the instant task insofar as it concerns the merit of the matter is to determine whether the Applicant can establish the matter is not without merit.[9]

[16] Having had regard to the Applicant's application and discussion at the hearing, it is evident that the essence of the Applicant's substantive case is that her ADHD is a condition for which she required reasonable adjustments. Her contention is that, instead of receiving reasonable adjustments, she was performance managed and ultimately dismissed because of her condition or the manifestations of it.

[17] The Respondent in its written submissions said that the merits of the matter were a neutral consideration at best. At the hearing, it submitted that the claim had no merit. The Respondent says that it was never provided with proof of the Applicant's ADHD diagnosis, and that the standards it required the Applicant to meet and which she didn't meet were not discriminatory.

[18] There is evidently a factual dispute between the parties which informs the position taken on the merits. For my part I do not need to resolve those facts. The claim as articulated to me is not without merit, but much will turn on the resolution of those contested facts. It is not appropriate in these circumstances to treat the merits of the Application as other than a neutral matter.

[19] The Respondent was unable to point to any circumstances relevant to this consideration. The Applicant's submissions misunderstood the nature of the issue to be examined under this consideration and did not expand upon it at the hearing.

[20] In all the circumstances I treat this as a neutral matter.

[21] I am required to determine whether any of the matters identified above, either individually or collectively, are sufficient to establish exceptional circumstances and whether such exceptional circumstances warrant the exercise of my discretion to extend time for the making of the application.

[22] In the circumstances of this matter, with all other circumstances being neutral, the reasons for delay are instrumental to the outcome in this case. The Respondent was correct to identify that the absence of any medical evidence supporting the Applicant's claims of incapacity (which relate to the first explanation and to an extent also the second explanation) are relevant to my determination of the extension of time application. I do not regard the third explanation, which related to the Applicant's lack of understanding of her rights, to be a matter that is exceptional or capable of meaningfully contributing to the other matters raised so as to elevate their collective force.

• [23] The decision of Deputy President Easton in Bianca Mamo v. ICLED Australia[10] provides clear guidance on how the Commission can take into account the experience of mental illness in an assessment of exceptional circumstances in the relevant sense. Deputy President Easton reviewed the caselaw relating to mental incapacity in extension of time applications in the Commission and identified the following principles relevant to the consideration of that reason as reason for delay:

(a) stress, shock, confusion and similar conditions (as a response to a dismissal) are not exceptional circumstances in and of themselves;

(b) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant's capacity to lodge the application within the statutory time limit;

(c) the evidence should positively demonstrate that the applicant's depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame; and

(d) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient.

[24] In my view, these matters are relevant considerations not only for establishing whether a level of incapacity rises to the level of being exceptional, but also whether, as a matter of discretion, the exceptional circumstances justify the extension sought. The Respondent had an opportunity to cross examine the Applicant to suggest that she had been exaggerating her level of incapacity, but did not do so.

[25] I am troubled by the lack of medical evidence in this case. However, equally I accept that it is inherently unlikely for a person to untruthfully claim a level of incapacity that led to thoughts of suicide. Further, my impression of the Applicant is that she was credible witness, although she was not (and made no claim to be) an expert witness on mental illness and mental capacity. The finding I make on the material before me is that there was a confluence of circumstances relating to the Applicant's family situation and mental health following the dismissal, that rose beyond the stress, shock and similar conditions that typify the experience of dismissal from employment. The circumstances were exceptional and more likely than not reduced her capacity to file an application within the statutory time limit or at best made compliance with the time limit more difficult than it would have been for a person not facing those circumstances. The circumstances were out of the ordinary course and uncommon.

[26] However, I am not satisfied that the exceptional circumstances I have found, with all their imprecision, are such as to warrant as a discretionary matter the granting of the extension of time required to allow the matter to proceed. In particular, in the absence of medical evidence, I am not satisfied as to the precise extent and duration of the Applicant's reduced capacity to file the application. This is highly material to the central consideration in this case, being the reasons for delay. For that reason, I must decline the grant the extension of time and I must dismiss the Applicant's application.

[1] [2018] FWCFB 901

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) [2018] FWCFB 901 at [38]- [39].

[3] [2011] FWAFB 975.

[4] Kurtev v. KCB Australia & Anor [2025] FWCFB 13 at [24], Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [17].

[5] Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [18].

[8] Exhibit A2 at Hearring Book page 10.

[9] Withers v. Contare [2022] FWC 967 at [33]- [37].

[10] [2021] FWC 3903.

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