s.365 - General protections

General protections - jurisdictional objection - extension of time - no exceptional circumstances - application dismissed

• [1] The applicant has filed a general application dismissal application under s 365 of the Act.

• [2] Under s 366(1), such application must be made within 21 days of the dismissal taking effect or such further period as the Commission allows under s 366(2). Section 366(2) empowers the Commission to allow a further period if it 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.

• [3] The applicant's dismissal took effect on 18 June 2025. The 21-day timeframe under s 366(1)(a) expired on 9 July 2025. The applicant lodged his application to the Commission on 24 July 2025, being 36 days after the dismissal took effect.

• [4] Consequently, the applicant needs the Commission to grant an extension of time in order for the application to proceed.

• [5] The applicant's general protections application alleges that he was dismissed because of reasons or reasons which include his exercise of workplace rights under s 340 and because of certain protected attributes under s 351. The respondent denies these allegations.

• [6] The respondent contends that the applicant was dismissed because the applicant's performance failed to meet the required standard. The applicant denies that his performance was inadequate or that he failed to meet the required standards.

• [7] In this decision, I make no finding on whether or not the applicant's performance was in fact not at the required level or whether or not he was dismissed because of a reason or reasons which include the reasons that he exercised workplace rights or because of an attribute in s 351. My decision is only about whether or not the applicant should be granted an extension of time under s 366(2).

• [8] On 1 October 2025, I conducted a determinative conference to deal with the matter of whether the applicant should be granted an extension of time. The applicant represented himself and gave evidence on his own behalf. The respondent was represented by Ms Sheena Hoey (Head of Employee and Industrial Relations).

• [9] The applicant was employed by the respondent as a Senior Planner commencing on 22 January 2024.

• [10] In about November 2024, the respondent says that the applicant's manager raised concerns with the applicant regarding his performance. In the period between about November - June 2025, the respondent took various steps which it says were directed to address the performance concerns. This included the commencement in January 2025 of a formal performance improvement plan (PIP).

• [11] The applicant denies that his performance was in any way inadequate. The applicant contends that he performed effectively in his role. In March 2025, the applicant raised a formal grievance against his manager relating to the alleged performance concerns and commencement of a PIP.

• [12] The respondent engaged an external investigator who apparently found that the applicant's complaints were unsubstantiated. In late April 2025, the applicant was notified of the outcome of the external investigation.

• [13] From about late April until June 2025, the respondent says that further steps were taken under the PIP.

• [14] The applicant's employment was terminated on 18 June 2025 effective on that date. At a meeting on that date, the applicant was informed that his employment was being terminated. At the termination meeting, the applicant challenged the dismissal. The respondent's Head of Human Resources joined the meeting, and the applicant challenged the dismissal in a discussion at which she was present. The respondent did not resile from its decision to dismiss the applicant.

• [15] Immediately after the meeting, the respondent emailed the applicant a letter of termination dated 18 June 2025. The letter informed the applicant that his employment was terminated effective from close of business on that day. The letter stated that the reason for termination that the applicant had not performed to the level required by the PIP. The letter noted that the applicant would be paid in lieu of actual notice.

• [16] In the applicant's Form F2, he sets out the following in relation to the reason for the delay in making the application:

I was dismissed on 18 June 2025. The deadline for lodging this application was 9 July 2025. I am submitting this application on 23 July - 14 days late.

During this period, my son was awaiting heart operation at the Royal Children's Hospital. We received confirmation on 20 June that his pre-admission clinic would be held on 3 July and the operation on 8 July. My wife and my son were both under considerable emotional distress, and I was supporting them during this critical time.

I was also actively seeking a second medical opinion to ensure that this operation was the best option. I had to accompany my son to multiple hospital appointments, manage logistics, and assist in medical decisions - which delayed my ability to focus on this legal process.

On 3 July, during the pre-admission clinic, the hospital advised that the operation would be rescheduled to a later date

. While this meant the operation was postponed, the emotional stress and disruption to our family remained ongoing, as we had to quickly reorient our planning and care around this unexpected change.

I have attached supporting documents, including the hospital's official operation notification (20 June), appointment records, cardiology evaluations, and written summaries of consultations held between 3 and 8 July 2025.

As soon as my son's medical situation stabilised, I took immediate steps to prepare and file this application. I respectfully submit that this short delay was due to exceptional personal circumstances, and I request that the Commission accept the application out of time under section 366(1) of the Fair Work Act.

• [17] As noted above, the applicant was dismissed effective close of business Wednesday 18 June 2025 and notified of the dismissal on that date.

• [18] The applicant gave evidence that between about 19 June 2025 and 22 or 23 June 2025 he used the time to focus on starting to make his case. The applicant says he was concentrating on writing out details about his case which were complicated, and he rewrote this several times to make it earlier to understand. The applicant says that he was "completely concentrating on ... getting the facts and summarising things". The applicant says that he wanted to "finish that process" before he returned his mobile phone and laptop to the respondent "After getting the important ... the file which I need only for .. this case." At this stage, it was apparent that the applicant had not identified a particular form of action.

• [19] By Monday 23 June 2025, the applicant says that he got "all the information" he needed but it was "not sorted out or not ... formatted or written in a in the proper way, I'm happy about, but at least I have all the information I need." On 23 June 2025, the applicant returned his work computer and laptop to the respondent.

• [20] On 20 June 2025, the applicant received a notification from the royal children's hospital that his son should attend a preclinic at the hospital on 3 July 2025 with a serious surgery for his son to be scheduled for 8 July 2025. The applicant says that this notification was devastating for the applicant's spouse and son. The applicant says that he was preoccupied with supporting his wife and son and arranging further medical opinions. The applicant says that circumstances occupied his focus between 20 June 2025 until 3 July 2025.

• [21] On Thursday 3 July 2025, at the preclinic, the applicant was notified that his son's operation scheduled for 8 July 2025 would not go ahead.

• [22] As at 3 July 2025, the applicant then had six full days and four full working days to file his application within the 21-day timeframe, noting that the 21-day timeframe expired on 9 July 2025.

• [23] The applicant says that in working days between Friday 4 July 2025 until about Monday 8 July 2025 he was looking for lawyers to take on his case. The applicant said that he contacted about 10 - 12 lawyers in this period. However, the applicant says that he was unable to find a lawyer to do so.

• [24] The applicant says that as at 3 July 2025, he was aware that there was a 21-day time limit for an unfair dismissal application.

• [25] On Tuesday 8 July and Wednesday 9 July 2025, the applicant undertook his own personal research about how to prepare an application to the Commission himself. The applicant's evidence indicates that this research included reading information on the Commission's website. The applicant says that he was initially looking at unfair dismissal and figured out that he did not have a right to use that option including because his income was greater than the high-income threshold.

• [26] Initially, the applicant said in evidence that on 8 or 9 July 2025, in the course of his research, he identified that he could make a general protections dismissal application. The applicant says that he did a lot of research to reach this conclusion and that it was not easy for him to do so.

• [27] Later in his evidence, the applicant said that he became aware of the possibility of a general protections application on around 11 July 2025 and then undertook his own research into such an application from about 14 July 2025.

• [28] The applicant says that during the research on 8 and 9 July 2025 referred to in paragraph [25] above, he assessed that he would "not be able to do it" and that he "also continued to look for ... lawyers after the cut off date."

• [29] The applicant indicates that after 9 July 2025, he contacted a further three to five lawyers.

• [30] I note that the application was filed in the Commission on 24 July 2025. During the determinative conference, I asked the applicant why he was not able to file the application more promptly after 9 July 2025.

• [31] The applicant said that after 9 July 2025 he endeavoured to find a lawyer who would take on his case on a deferred payment basis even though the 21 days had expired and further ... "I was trying to do my ... work in .. a in a perfect way like put everything together in a in a good presentable, and the clear way, I guess that's why it took me a while to complete that."

• [32] The applicant said that he understood that it was "very rare" that the Commission would accept an application filed after the 21 days. The applicant said that "... I crossed the line already so ... I didn't have the urge to finish it as fast as possible. My ... main target was to finish it as accurate as possible. And also as fast as possible, but I mean without compromising any of the accuracy and the quality of the submission."

• [33] The applicant said that from 14 July 2025, he was checking whether he could make a general protections application. The applicant said in three days prior to filing the application he prepared his application, using that time to "compile everything, rephrase it and submit the application."

1. In order for the Commission to allow this further period of time, it must be satisfied that there were 'exceptional circumstances' which led to the application being made outside of the time frame. Exceptional means that the circumstances were out of the ordinary course, unusual, special or uncommon.[1] Exceptional circumstances may be comprised of a single exceptional event, or a series of events which, taken together, are exceptional.[2] Therefore, the assessment of whether exceptional circumstances arise in a given case involves a consideration of all of the relevant circumstances.[3]

1. The relevant period of the delay is the time between the date that the 21-day deadline elapsed and the date on which the application was actually filed. In this matter, the period of delay is between 18 June 2025 and 24 July 2025. The absence of an explanation for any part of the delay will usually weight against the Applicant, however a credible explanation for the entirety of the delay will usually weigh in the applicant's favour. Nevertheless, all of the relevant matters (including the reason for the delay) must be taken into account.[4]

• [36] In assessing whether there are exceptional circumstances which enliven a discretion to extend time, I assess the various considerations in s 366(2)(a)-(f) as follows.

• [37] Under s 366(2)(a), it is necessary to consider the reason for the delay.

• [38] The applicant's stated reason for the delay, set out in his F8, substantially relates to impact of having to deal with and support his immediate family arising from his son's medical circumstance. As noted above, on 20 June 2025, the applicant was notified that his son would have serious surgery on 8 July 2025. I also note that on 3 July 2025, the applicant was notified that the operation scheduled for 20 July 2025 would not proceed. I accept that that in the period between 20 June 2025 and 3 July 2025, the applicant's ability to pursue matters relating to his dismissal was compromised by his son's medical situation including because of the direct impact on the applicant and the support he was required to provide his spouse and son including endeavouring to identify alternative medical information.

• [39] However, I do not consider that the circumstances relating to applicant's son provide an adequate explanation for the entirety of the delay.

• [40] Firstly, it is apparent that in the period between 20 - 23 July 2025, the applicant seems to have devoted significant time and effort in recording details related to his dismissal including collating documents from his work laptop. This included writing and rewriting details relating to the dismissal. This was a period when the applicant was aware of his son's scheduled surgery for 8 July 2025.

• [41] Secondly, in his F8 the applicant stated that even after 3 July 2025, the emotional stress related to his son's surgery was such that emotional stress and disruption to his family remained ongoing. These matters were put in support of an extension of time. When asked for further information about this, the applicant seemed to accept that these matters did not affect his ability to deal with or file an application. However, he qualified his answer by suggesting that matters related to his son's health prior to 4 July 2025 had affected him in that he was not able to get a lawyer in the period from 20 June 2025 - 3 July 2025 because of being preoccupied with his son's health. It is apparent from the applicant's evidence, that emotional stress after 3 July 2025 did not prevent him from making an application to the Commission. Furthermore, in the period after 3 July 2025, the applicant contacted some 12 lawyers and undertook his own research into dismissal general protections applications. These matters are not consistent with a conclusion that stress or family disruption after 3 July 2025 was such that the applicant did not have capacity or was even impeded in filing an application to the Commission at any time after 3 July 2025.

• [42] Thirdly, as at 3 July 2025, the applicant was notified that his son's operation would not proceed on 8 July 2025. As at 3 July, there were then six full days (four full working days) before the 21-day time limit expired. During parts of this period (ie the working days between about 3 July and 8 July 2025), the applicant seems to have prioritised trying to obtain legal representation to pursue an application to the Commission regarding dismissal by contacting some 12 lawyers. I note also that on 8 and 9 July 2025, the applicant undertook personal research into preparing an application himself including research on the Commission website but assessed that he could not do so.

• [43] Fourthly, during the course of this research the applicant became aware of general protections dismissal applications and the 21-day timeframe for such applications. This was either on 8 or 9 July 2025 or 11 July 2025. The applicant reached the view that a general protections application was not likely to be accepted by the Commission out of time. Given that assessment, the applicant prioritised completing the general protections application to his satisfaction rather than endeavouring to promptly lodge the application in the Commission. At least in the part of the period between 9 July 2025 and 24 July 2025, the applicant seems to have continued look for lawyers to take on his case. In these circumstances, a significant reason for the extent of the 15 day delay in lodging the application in the Commission, seems to be a conscious choice made by the applicant to prioritise getting the application in a state that he considered was of high quality, an election he made having assessed that a general protections application would not likely be accepted by the Commission outside the 21-day time limit.

• [44] Fifthly, the applicant says that if he had not lost the time in the period between 20 June - 3 July 2025 dealing with his son's prospective operation and the associated emotional stress, he would have lodged his application in the Commission within time. This hypothetical proposition would require me to engage in a speculative exercise. It does not assist in establishing an acceptable reason for the delay.

• [45] Sixthly, in the F8 the applicant says that as soon as his son's medical situation stabilised, he took "immediate steps to prepare and file this application." In his evidence, the applicant accepted that when he refers to "stabilised" he is referring to the advice received on 3 July 2025 that the operation would not go ahead. Having regard to this, it cannot be said that the applicant acted with any immediacy from 3 July 2025 in filing an application in the Commission. The applicant referred to steps he took after 3 July 2025 to contact lawyers and undertake his research as steps he took to prepare his application. These steps do not reflect immediacy of action in filing and in no way provide an acceptable explanation for the delay.

• [46] As I noted in paragraph [27] above, the applicant said that he was not aware of general protections applications until about 11 July 2025, which would have been day 23 after the dismissal took effect. This does not constitute an acceptable explanation for the delay.

• [47] I note that at the conclusion of the determinative conference, the applicant seemed to accept that the reason for the delay after 9 July 2025 was because of the demands of trying to find out what he could do to challenge his dismissal, conducting his research and preparing the general protections application. This does not constitute an acceptable explanation for the delay.

• [48] In these circumstances, I am not satisfied that there is an acceptable explanation for the delay. My lack of satisfaction of an acceptable explanation for the delay, weighs against the applicant.

Action taken by the applicant to challenge the dismissal

• [49] Under s 366(2)(b), the Commission is required to consider any action taken by the applicant to dispute the dismissal.

• [50] I note that the applicant's was informed of dismissal at a meeting on 18 June 2025. At the termination meeting, the applicant challenged the dismissal after he had been informed of dismissal. The respondent's Head of Human Resources joined the meeting and the applicant challenged the dismissal in a discussion at which she was present.

• [51] Otherwise, the applicant took no other step with the respondent to dispute the dismissal until the lodging his application to the Commission.

• [52] In these circumstances, I am prepared to weigh the consideration under s 366(2)(b), in favour of the applicant.

• [53] Under s 366(2)(c), the Commission is required to weigh prejudice to the employer (including prejudice caused by the delay).

• [54] The respondent initially identified prejudice because one of its witnesses in relation to issues raised by the application has resigned from employment with the respondent. However, there is no suggestion that the now former employee is unavailable to the respondent as a consequence of their resignation. The respondent also indicted that it had already obtained a witness statement from the employee. The respondent ultimately accepted that no prejudice flowed from the resignation of the witness.

• [55] I do not consider that the respondent has suffered prejudice including that caused by the delay in the application.

• [56] Consequently, I regard the consideration in s 366(2)(c) as a neutral matter.

• [57] Under s 366(2)(d), the Commission is required to take into account the merits of the application.

• [58] As I have noted above, the applicant contends that he was dismissed because of a reason or reasons which include the reasons that he exercised workplace rights or because of two attributes in s 351. Prima facie, the applicant seems to have exercised workplace rights and to have the attributes identified in the application.

• [59] The respondent denies that the applicant was dismissed for the exercise of workplace rights or because of the identified attribute in s 351. The respondent contends that it dismissed the applicant because he failed to meet the required standard of work performance and refers to its performance process. The applicant denies his performance was inadequate.

• [60] Given the factual and evidentiary conflict between the parties, the Commission is not able to express a view as to whether or not the applicant's general protections application has merit.[5]

• [61] Consequently, I regard the consideration in s 366(2)(e) as a neutral factor.

• [62] Under s 366(2)(e), the Commission is required to consider fairness as between the applicant and other persons in a like position.

• [63] This consideration is concerned with the importance of the application of consistent principles in cases of this kind.

• [64] I regard the consideration in s 366(2)(e), as a neutral factor.

• [65] Having considered and weighed the various matters in s 366(2)(a)-(e), I am not satisfied that there are exceptional circumstances which enliven my discretion to extend time. I have reached this view having weighed each of those matters individually and collectively.

• [66] Therefore, I decline to grant the applicant an extension of time.

• [67] I order that the applicant's general protections dismissal application made under s 365 be dismissed.

1. [1] Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [13].
2. [2] Ibid.
3. [3] Ibid [26].
4. [4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39].

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