s.365 - General protections

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

[1] On 10 December 2025, Mr Amponsem lodged an application pursuant to 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 dispute is Mr Amponsem's former employer, Calvary Aged Care Limited.

[2] Mr Amponsem contends that Calvary contravened the general protections provisions in dismissing him from his employment. Calvary contends that Mr Amponsem's application was filed outside the 21 day time period and there are no exceptional circumstances to warrant an extension of time being granted.

[3] This decision only deals with Calvary's contention that the application was filed outside the 21 day timeframe provided for in the Act and an extension of time should not be granted.

[4] On 21 January 2026, I conducted a hearing, by telephone, in relation to the application by Mr Amponsem for an extension of time. Mr Amponsem gave evidence at the hearing. Both parties made submissions on the extension of time issue.

[5] 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). Mr Amponsem's employment with Calvary came to an end on 30 October 2025. Mr Amponsem lodged his general protections application in the Commission on 10 December 2025. The application was therefore filed 20 days outside the 21 day period. Mr Amponsem asks the Commission to grant a further period for the application to be made under s 366(2).

• [6] 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]

[7] 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.

[8] 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.

[9] 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.

• [10] 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]

• [11] 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]

[12] The relevant timeline of events may be summarised as follows:

• On 30 October 2025, Mr Amponsem was dismissed in relation to his ongoing incapacity to return to work after being absent from work on workers' compensation for about eight months. At all times during the process relating to Mr Amponsem's incapacity, he was represented by the Health Services Union, including in the meeting when he was informed that he was being dismissed.

• Prior to his dismissal, Mr Amponsem had prepared a draft general protections application not involving a dismissal. He sent his draft application to the HSU but it was not filed in the Commission.

• About two weeks after his dismissal, Mr Amponsem had a discussion with Mr Tim Judge, Industrial Officer of the HSU. Mr Judge explained to Mr Amponsem that he could make an unfair dismissal application or a general protections application to challenge his dismissal. Mr Judge expressed the view that Mr Amponsem should pursue an unfair dismissal claim because his prospects of success in a general protections claim were not good. Mr Amponsem's initial response was to say that, if his prospects in a general protections claim were not good, such a claim should not be pursued.

• On about the twenty first day after his dismissal took effect, Mr Amponsem says that he spoke with Mr Judge and told him that he had an instinct that he should put in a general protections application. Mr Amponsem claims that Mr Judge said that he would prepare the application.

• On 20 November 2025, being the twenty first day after Mr Amponsem's dismissal took effect, Mr Judge filed an unfair dismissal application on behalf of Mr Amponsem in the Commission. Mr Amponsem was copied in to the email sent by Mr Judge to the Commission filing the unfair dismissal application. Mr Amponsem claims that he did not read this email or the unfair dismissal application attached to the email. Mr Amponsem claims that Mr Judge told him that he had made a mistake by filing the wrong application or in the wrong jurisdiction, but Mr Judge would fix his mistake.

• On about 1 December 2025, Mr Amponsem had a conversation with Mr Judge about potentially negotiating a settlement with Calvary. Mr Amponsem claims that this was the first time that he became aware that Mr Judge had filed an unfair dismissal application on his behalf. Following this conversation, Mr Judge sought to negotiate a settlement with Calvary. No deal was struck.

• On 8 December 2025, Mr Judge filed a notice of discontinuance on behalf of Mr Amponsem in the Commission. The notice of discontinuance related to Mr Amponsem's unfair dismissal application.

• On 10 December 2025, Mr Amponsem filed a general protections application in the Commission.

[13] Mr Amponsem provided the following explanation for the delay in his general protections application:

"First I am sorry for this being out of time because my initial application was on time but I had to discontinue that because my representative lodged the wrong application which was unfair dismissal instead of general protections and the one withdrawn was U2025/18673 as case name.

... the day was not because of negligence but of being misled and not being fully represented..."

[14] I do not accept Mr Amponsem's evidence that he did not read the email sent by Mr Judge to the Commission on 20 November 2025. That email had the subject "F2 Unfair Dismissal Application K Amponsem v Calvary". It referred to the "attached F2 Unfair Dismissal application and attachments". The unfair dismissal application was attached to the email. Mr Amponsem understood that 20 November 2025 was the twenty first day after his dismissal took effect. He accepted that the email from Mr Judge dated 20 November 2025 was important. It does not ring true that Mr Amponsem did not read the email or the subject line of the email. Mr Amponsem was not able to provide any cogent explanation for the alleged mistake which he says Mr Judge told him about and which he relies on to explain why he did not read the email. I find, on the balance of probabilities, that Mr Amponsem did read the email from Mr Judge on 20 November 2025, with the result that he was aware on 20 November 2025 that an unfair dismissal application had been filed on his behalf in the Commission.

[15] In any event, Mr Amponsem accepts that he was aware, on about 1 December 2025, that an unfair dismissal application had been filed on his behalf in the Commission. Mr Amponsem was not able to provide any persuasive reason as to why it took him a further nine days - until 10 December 2025 - to lodge his general protections application in the Commission. The fact that Mr Judge was seeking to negotiate a settlement with Calvary during this period does not provide a reasonable or explanation for this nine day delay.

[16] Taking into account all the circumstances, I do not consider the matters relied on by Mr Amponsem, individually or together, to be an acceptable or reasonable explanation for the 20 day delay in filing his general protections application. I am satisfied that Mr Amponsem was aware on 20 November 2025, being the twenty first day after his dismissal took effect, that an unfair dismissal application had been filed on his behalf in the Commission. In the alternative, he became so aware on about 1 December 2025, but did not file his general protections application until 10 December 2025. I do not accept Mr Amponsem's submission that representative error caused the delay. Even accepting that Mr Amponsem told Mr Judge, on about the twenty first day after his dismissal took effect, that he had an instinct that he should put in a general protections application and Mr Judge said that he would prepare the application, this does not explain the delay from 20 November 2025, at which time the unfair dismissal application was filed and Mr Amponsem became aware of it, or alternatively 1 December 2025, until the general protections application was filed on 10 December 2025.

[17] The absence of an acceptable or reasonable explanation for the delay in lodging the application on 10 December 2025 weighs against a conclusion that there are exceptional circumstances.

[18] Mr Amponsem took action to dispute his dismissal by filing his unfair dismissal application in the Commission. He also informed Calvary on the day of his dismissal that he did not accept the decision. Further, Mr Amponsem sent two emails to Calvary to ask for a review of the decision to terminate his employment but did not receive a response. This action taken by Mr Amponsem to dispute his dismissal weighs in support of Mr Amponsem's contention that there are exceptional circumstances.

[19] I cannot identify any significant prejudice that would accrue to Calvary 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.

[20] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the general protections application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.

[21] In his general protections application, Mr Amponsem contends that Calvary has contravened the general protections provisions of the Act on the basis that adverse action was taken against him because of his mental disability and temporary absence from work because of illness or injury, and he exercised workplace rights by making a complaint about an unsafe and unreasonable return to work plan.

[22] Calvary contends that it terminated Mr Amponsem's employment because he was unable to perform the inherent requirements of his role from February 2025 until his dismissal on 30 October 2025. Mr Amponsem accepted in his evidence that he was only fit to work two days per week at the time of his dismissal. As a full-time chef, this meant that Mr Amponsem could not fulfil the inherent requirements of his position. Calvary also submits that Mr Amponsem's injury was not temporary and it is not aware of any complaint made by Mr Amponsem about a return to work plan. Calvary denies the other allegations made by Mr Amponsem.

[23] On the basis of the material before the Commission, I am of the view (as was Mr Judge) that Mr Amponsem's prospects of success in relation to his general protections application are weak. There is no dispute that Mr Amponsem was absent from work and unable to perform the inherent requirements of his job for a considerable period of time. The termination letter records Mr Amponsem's ongoing medical incapacity as the reason for his dismissal.

[24] Having regard to all the circumstances, I consider the merits of the application to weigh against Mr Amponsem's argument that there are exceptional circumstances.

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

[25] 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.

[26] I do not consider that there are any relevant matters concerning this consideration. I therefore consider this to be a neutral consideration.

[27] 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 Mr Amponsem, 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.

[28] 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).

[29] Mr Amponsem's general protections application is dismissed because it was lodged in the Commission more than 21 days after his dismissal took effect and there are not any exceptional circumstances to warrant an extension of time being granted.

Mr M. Douglas, Calvary National Manager for Workplace Relations, appeared for Calvary.

[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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