Fair Work Act 2009

s.365 - General protections

General protections application involving an alleged dismissal - application filed outside 21 day time limit - no exceptional circumstances - application dismissed.

[1] On 4 February 2026, an application was lodged by Ms Kila Campbell (Applicant) under s 365 of the Fair Work Act 2009 (Cth) for the Fair Work Commission to deal with a general protections dispute involving a dismissal. The respondent to the application is the Applicant's former employer, Play-O-Rama Kids Central Pty Ltd (Respondent).

[2] Section 366(1) of the Act states that a general protections application involving a dismissal must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 366(2). The Applicant's dismissal took effect on 12 January 2026. The 21 day time period expired at midnight on 2 February 2026. The application was therefore filed two days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 366(2).

• [3] The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are 'exceptional circumstances'. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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 can be considered exceptional.[2]

[4] The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

[5] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

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

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

[6] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.

• [7] The delay required to be considered in s 366(2)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

• [8] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[5]

[9] The Applicant provided the following explanation for the delay in her general protections application:

"The reason for the delay is that I was unable to cover the fee at the time. I was also concerned about potential backlash from my previous employer."

[10] In an email to the Commission received on 28 March 2026, the Applicant expanded on her previous explanation for the delay in lodging her application in the Commission:

"... I maintain that the brief two-day filing delay caused no prejudice to the Respondent and occurred while I was still attempting to resolve these matters in good faith.

As a professional in a regional area, I had genuine concerns regarding 'small town talk' and the potential for professional backlash. I feared that taking legal action would make it difficult to secure future employment. This hesitation was a direct result of the misconduct I experienced after exercising my workplace rights.

I believe it is in the public interest to allow this case to proceed given the evidence of workplace misconduct and unpaid entitlements..."

[11] I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay in filing her general protections application in the Commission. A general protections application may be filed in the Commission without immediate payment of the modest $89.70 application fee. The fee can be paid after the application is lodged. Alternatively, an applicant can apply for a waiver of the application fee. Further, it is common for applicants to be concerned that commencing legal proceedings against their former employer may result in 'backlash' or cause difficulties in obtaining alternative employment. However, these concerns exist whether an application is filed within the 21-day period or, as was the case here, two days later. The existence of such concerns does not provide an acceptable or reasonable explanation for the delay. Nor does the fact that the Applicant was "attempting to resolve these matters in good faith".

[12] The absence of an acceptable or reasonable explanation for the delay in lodging the application weighs against a conclusion that there are exceptional circumstances.

[13] The Applicant says in her application that she "raised the concerns with the owner". I am prepared to accept that raising such concerns constitutes the taking of some action to dispute the dismissal.

[14] I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

[15] The Act requires me to take into account the merits of the application in considering whether to extend time.

[16] The Applicant contends that her application has merit because she exercised a workplace right about unpaid superannuation entitlements, which had been outstanding for more than 12 months. After raising this issue, the Applicant says that she experienced ongoing adverse treatment, including being excluded from discussions with her manager, being unable to perform her role effectively, being talked about behind her back, and being treated similarly by other staff. The Applicant contends that her work environment became extremely uncomfortable, and she felt that she had no option but to resign.

[17] The Respondent contends that the superannuation matter is currently being addressed as a priority by her accountant and any amounts identified as being payable will be paid. The Respondent contends that the Applicant's employment was not at risk; she made the decision to resign from her ongoing employment of her own accord. The Respondent says that the Applicant was advised that the superannuation matter was in the process of being rectified and the Respondent requested that any further discussions regarding the matter be directed to Ms Hutley rather than through other staff members. The Respondent contends that it remained open to communication with the Applicant and did not take any action to terminate or threaten the Applicant's employment.

[18] It is apparent that there is a contest between the parties as to whether any adverse action was taken against the Applicant because she raised the superannuation matter and, relatedly, whether the Applicant was forced to resign and therefore dismissed within the meaning of s 386 of the Act. The outcome of these contested matters in a final hearing would depend on a full examination of all the facts and circumstances, including cross examination of the relevant witnesses. Even though the Applicant has filed a body of documentary material to support her claim, the position of each party on these contested issues is arguable at this early stage of the proceedings. Having regard to all the circumstances, I consider it appropriate to treat the merits of the application as neutral.

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

[19] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.

[20] If this application were permitted to go ahead, it would turn on its own facts and circumstances. I do not consider that the question of fairness between the Applicant and other persons in a like situation has a material bearing on whether there are exceptional circumstances to justify the granting of an extension of time.

[21] Taking into consideration the matters I am required to take into account under s 366(2) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. In my view, the circumstances of this case are not out of the ordinary course, unusual, special or uncommon.

[22] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2). The application is therefore dismissed.

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

[3] Long v Keolis Downer [2018] FWCFB 4109 at [40]

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31]

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]

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