s.365 - General protections

Application to deal with contraventions involving dismissal - 70 days out of time - whether exceptional circumstances - no exceptional circumstances - application dismissed

[1] Mr Keyurkumar Patel has made an application under s 365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed in contravention of Part 3-1 of the Act.

[2] Mr Patel alleged that he was dismissed effective from 10 September 2025. The Application was lodged on 10 December 2025. The application was lodged 70 days outside of the 21-day statutory timeframe prescribed under s.366(1)(a) of the Act. The application can only be accepted if the Commission allows an extension of time, taking into the factors in s.366(2) which I have considered below.

[3] I have determined this matter on the papers on the basis of the extensive material filed by the Applicant with his Form F8. The application has not been served on the Respondent.

Should an extension of time be granted under s.366(2) of the Act?

[4] Section 366 of the Act provides when a further period may be granted to accept a late application.

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

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

(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 like position.

[5] There must be exceptional circumstances in order to be granted a further period to lodge this application. In summary, exceptional circumstances are:

• Out of the ordinary course, unusual, special or uncommon. It does not need to be unique, unprecedented or vary rare.

• • It can be 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. [1]

[6] I note the Applicant worked for the Respondent for two years, on two consecutive one-year, fixed term contracts. The Respondent stated in the contract that it was for a "Specific Task or Project". This bears on whether the Applicant was "dismissed" within the meaning of s.386 of the Act.

[7] The Applicant was given notice via email from his manager on 15 July 2025 that the contract would not be renewed following its expiry on 10 September 2025. He was given formal notice on 24 July 2025 via letter that his contact would be ending on 10 September 2025. This means that the Applicant had almost nine weeks' notice of the end of his employment. He had then had a further 21 days to lodge the application within the statutory timeframe. Despite having almost three months in which he could have prepared this application, the Applicant somehow managed to lodge the application two months out of time.

[8] The Applicant provided the following reasons for delay:

• - The Applicant's son was completing his Grade 12 exams, and the Applicant did not want to "disturb the family environment"
• - The Applicant's mother-in-law was unwell, and the Applicant was planning to fly overseas for surgery
• - The Applicant was not able to get an appointment with a lawyer
• - The Applicant was "mentally disturbed" due to being terminated
• - The Applicant reached out to his former employer regarding unpaid additional hours, but did not receive a reply

[9] None of the above matters are an acceptable reason for delay. The Applicant has not provided a reason for delay which, individually or collectively, amounts to exceptional circumstances.

[10] Firstly, it is unclear why the Applicant's son's exams should have any bearing on the general protections application, let alone delay the application by almost two months.

[11] Secondly, overseas travel does not provide an acceptable reason for delay and does not explain a delay of almost two months. The Applicant did not provide medical evidence aside from a graphic photo of what is presumably his mother-in-law's injury. The Fair Work Commission website can be accessed online, and the Applicant could have lodged the application even while overseas. This is not an acceptable reason for delay.

[12] Thirdly, it is not uncommon for there to be delays in obtaining an appointment with a lawyer. This is not an exceptional circumstance. I note the Applicant referred to the person he sought legal advice from in August 2025 as being "his lawyer". That solicitor is a lawyer at a community legal centre which provides pro bono advice. I have seen no evidence that she was retained to act for the Applicant or to file this application. At most, it seems she might have provided legal advice in a scheduled appointment in July or August 2025. This is not a matter of representative error.

[13] On 21 August 2025, the Applicant was informed clearly by the legal centre that the wait time for an appointment was 3 to 4 weeks and that all question for the solicitors could only be discussed in a scheduled appointment. Nevertheless, the Applicant sent an email on 21 August 2025 to the community legal centre as follows:

Subject: Follow-Up on Lodgement to FWC and Outstanding Overtime Payment

1. I'm writing to confirm the status of the lodgement to the FWC following the email

sent to [redacted]. Could you please update me on the progress?

... I would appreciate your response on both matters at your earliest convenience. 2 - 3

weeks will delay the lodgement and I need correct advice before the lodgement.

[14] Again, there is no evidence that the legal centre had been retained to lodge an application in the Commission. However, what this email shows to me is that the Applicant was aware of the need for timely lodgement in the Commission on 21 August 2025. And yet, he did not lodge this application until almost four months later.

[15] Fourthly, the Applicant did not elaborate in what way he was "mentally disturbed". He has provided no medical evidence to convince me that he was incapable of lodging the application within time, particularly given his long notice period.

[16] Finally, the Applicant's statement that he was following up with the employer regarding allegedly unpaid hours is not convincing. I have reviewed the email which I believe the Applicant is referring to. It was sent by the Applicant to the Respondent's HR on 21 August 2025. As far as I can tell, this is the only email he sent referring to alleged unpaid additional hours. There is no evidence he followed up in any way. Further, it is not necessary for the Applicant to wait until the Respondent gets back to him before lodging an application in the Commission. The general protections application is distinct from a claim of underpayment.

[17] It appears that the real reason for the delay is that the Applicant applied through a recruitment process for a permanent position with the Respondent and was rejected on 9 December 2025. He lodged the application the next day. This is not a satisfactory reason for delay. The Applicant's own evidence proves that he challenged the Respondent's decision not to extend the contract or redeploy him in at least August 2025. It is not an acceptable reason for the delay for the Applicant to wait until the Respondent rejected him from an application for a different position before lodging this application.

[18] The Applicant has not provided an acceptable reason for the delay. This weighs against an extension of time. The Applicant's stated reasons for the delay do not amount to exceptional circumstances, either collectively or individually.

Section 366(2)(b) - Any action taken by the person to dispute the dismissal

[19] I find that the Applicant did dispute the alleged dismissal prior to lodging this application. The evidence demonstrates that he queried why the Respondent did not convert his role to a permanent position in July 2025. Further, in an email to the Respondent's HR officer on 21 August 2025 he stated that he believed his complaint to his manager about going above his expected responsibilities contributed to the decision to not extend his contact. As this email was sent after the Applicant received the notice of the end of his contract, I consider it is action taken to dispute the dismissal.

[20] This consideration weighs in favour of granting an extension of time.

Section 366(2)(c) - Prejudice to the employer (including prejudice caused by the delay)

[21] A delay of 70 days is significant. However, in the absence of evidence from the Respondent, and noting the Respondent is a relatively large employer, I consider that this factor is neutral.

[22] As stated above, there is a threshold issue which must be overcome of whether the Applicant was "dismissed" under s.386 of the Act noting he was stated to be on a fixed term contract (which was for two years' duration in total) and that contract was not renewed. This is a hurdle which the Applicant must overcome if his application goes forward.

[23] The Applicant appears to have the view that he was entitled to be offered permanent employment once his contract expired. It is unclear where he thinks that entitlement derives from.

[24] The Applicant makes a claim that his contract was not renewed because wrote to his manager about the work he was performing being beyond the scope of his role. I find that that aspect of the claim is not devoid of merit. I find that this factor is neutral.

Section 366(2)(e) - Fairness as between the person and other persons in a like position

[25] The Applicant did not provide reasons which address this consideration other than saying that he contributed to the operations and that others would now benefit from his work. This consideration is neutral.

[26] Having regard to all the matters set out above, and having regard to the lengthy delay and the absence of an acceptable reason for delay, I am not satisfied that exceptional circumstances exist in this matter. Accordingly, the extension of time is not granted and the application is dismissed.

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

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