s.365 - General protections

Application to deal with contraventions involving dismissal - filed out of time - extension of time not granted - application dismissed

• [1] Ms Kexin Di (Ms Di/Applicant) has made an application under s.365 of the Fair Work Act 2009 (Cth) (Act) in which she alleges that she was dismissed by Lovetech Group Pty Ltd (Lovetech/Respondent). The application was filed on 5 September 2025. 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).

• [2] Ms Di submits her dismissal occurred on 4 September 2025. The Respondent submits that the Applicant voluntarily resigned from her employment and expressed her intention to resign, both verbally and in writing, including on 31 March 2025, 3 April 2025, 11 April 2025, and 23 April 2025.[1]

• [3] On 24 April 2025, Ms Di unilaterally advised Lovetech that she would not be available for to work any further shifts until two issues in dispute were resolved.[2] The Applicant also provided a statutory declaration that confirms that on 24 April 2025, she wrote to the Respondent and unilaterally refused to attend work again until certain issues were resolved. The Respondent claims the Applicant 'ceased attending work' following her final shift on 23 April 2025.[3] It is uncontested that the Applicant did not work again for the Respondent.[4] The Applicant contends that she did not become aware her employment had come to an end until 4 September 2025; however, a review of the correspondence between the parties shows that there was an ongoing underpayment dispute lodged in the Magistrates Court by the Applicant and the communication between them was in relation to that dispute. On the Applicant's own evidence, she was engaged as a permanent part-time employee working an average of 14 hours per week.

• [4] It is necessary that I must first determine when the employment came to an end. On the basis of the evidence before me, I am satisfied that the employment of Ms Di with Lovetech came to an end on 24 April 2025 when Ms Di unilaterally decided to withdraw her availability to work any further shifts.

• [5] The 21-day period therefore ended on Thursday, 15 May 2025. The application was lodged on 5 September 2025, 113 days late. For the application to proceed, Ms Di 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)-(e).

• [6] As to the reason for the delay (s.366(2)(a)), Ms Di claims, firstly, that she submitted a claim for unpaid leave on 23 April 2025. However, there is no evidence before the Commission that the leave in question was ever approved. In the absence of written leave approval from the Respondent, I find it inconceivable that the Respondent consented to five months' leave without pay, especially in circumstances where there was correspondence between the parties requesting the return of the Respondent's keys to their premises. I find it more likely that Ms Di's refusal to attend any further shifts on 24 April 2024 was accepted as a resignation by Lovetech, and Ms Di's failure to follow up at any time and inform Lovetech that she was available to work further supports the Respondent's contention that Ms Di resigned when she unilaterally withdrew her labour on 24 April 2025, repudiating her employment arrangements.

• [7] Ms Di gave a number of further reasons for her delay in filing the application. These are that:

(a) her father passed away on 14 May 2025. Ms Di contends that this was sudden and caused devastating grief and a mental breakdown.

(b) she was the victim of a severe racial hate crime on 27 April 2025 by drug-affected neighbours. Ms Di submits that the police intervened; however, the event caused extreme psychological shock.

(c) following these events, Ms Di suffered a physical and mental collapse. Ms Di has stated she called the helpline for support but on 27 November 2025, Medicare was approved and treatment commenced on 1 December 2025.

(d) as a non-native speaker, Ms Di is isolated and all of her correspondence relies on translation software, thereby preventing her from expressing her thoughts as effectively as a native speaker.

(e) with assistance from Fair Work and the Queensland Magistrates Court, Ms Di contacted multiple community legal centres but she was unable to obtain any legal advice until 5 January 2026.

• [8] In consideration of these reasons, and on the basis of the material before me, I make a number of observations. Ms Di did not provide sufficient medical evidence or other evidence to support the gravity of the first three of these reasons, individually or as a group, being of sufficient substance to explain the lengthy delay in lodging her application. In respect of the reasons of not being a native speaker and being unable to obtain legal advice, I note that on Ms Di's own timeline, during the period of delay, she filed an underpayment claim in the Queensland Magistrates Court, made various calls to the Fair Work Ombudsman, had various interactions with the Queensland Industrial Relations Commission (QIRC) and the Fair Work Commission (FWC), and complied with directions from the QIRC and the FWC, including making extensive submissions and filing relevant evidence.

• [9] All of this demonstrates that Ms Di was indeed capable of filing this present claim within the required timeframe and that she did not require any legal assistance to do so. Filing an application is relatively straightforward, as Ms Di ultimately discovered, and can be done by phone or email. I reject Ms Di's suggestion that the delay in lodgement was caused by her inability to retain a lawyer. The Commission is very accessible to the general public. Lawyers are not required in order to complete the short, simple Form F8. I do not accept that the above matters prevented or seriously impeded the possibility of timely lodgement of the F8 application form. In my assessment, the reasons for delay weigh against a conclusion that there are exceptional circumstances in this case.

• [10] Ms Di states that she did not conclude her employment had come to an end until 4 September 2025. For the reasons set out in paragraphs [3] and [6], I find that it is implausible that Ms Di did not believe her employment had come to an end until 4 September 2025. On the basis of my finding at paragraph [9], I find Ms Di's reasons for her delay weigh against the granting of an extension of time, pursuant to s.366(2)(a).

• [11] As to the other mandatory considerations, I accept that Ms Di took other action to dispute an alleged underpayment; however, I do not accept she took any other action to make herself available for work or to dispute her cessation of work until she filed this matter with the FWC on 5 September 2025 (s.366(2)(b)). This weighs marginally against an extension.

• [12] I consider there to be a slight prejudice to the employer associated with the relatively long delay in this case of 115 days (s.366(2)(c)). I consider this to weigh against the granting of an extension of time, albeit very slightly. I do not consider that there are any matters that are relevant to fairness between Ms Di and other persons in a like position (s.366(2)(e)). I consider this to be a neutral factor.

• [13] As to the merits (s.366(2)(d)), Ms Di submitted that her employment came to an end as a consequence of her exercising a range of workplace rights. However, on Ms Di's evidence, I conclude that it was her who brought the employment to an end by unilaterally refusing to attend work until the complaints she made had been addressed to her satisfaction, which does not of itself speak to any contravention of Part 3-1 of the Act. I consider that Ms Di has some limited aspects of her case that might be capable of an adverse action element; however, a more detailed assessment is not possible given the limited information before me. The merits of the matter would also depend on findings made by a court after hearing the evidence. I therefore regard the merits as a neutral consideration.

• [14] 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 this case. There is no basis for the Commission to extend time. The application is dismissed.

[1] DCB p.99, Respondent F8A, Q1.2, paragraph 1.

[3] DCB p.99, Respondent F8A, Q1.2, paragraph 1.

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