s.365 - General protections

Application to deal with contraventions involving dismissal - application filed sixty-nine days out of time - no exceptional circumstances - application dismissed

[1] Ms Koebi Edwards (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission). The Applicant claimed her employment was terminated by the Maddison Health Care Pty Ltd (the Respondent) in breach of Part 3-1 of the Fair Work Act 2009 (Cth) (the Act).

[2] The application was lodged on 7 October 2025, sixty-nine 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] Prior to lodging this claim, the Applicant had lodged an unfair dismissal application on 15 July 2025. The Respondent objected to that application. On 7 October 2025, Commissioner Simpson held a hearing for the unfair dismissal matter. In that hearing, the Commissioner determined that the Respondent was a small business employer, and consequently the Applicant had not met the minimum employment period of twelve months. The application was dismissed by way of an ex tempore decision of Commissioner Simpson on 7 October 2025. An order dismissing the application followed soon after.

[4] On 7 October 2025, at 1:05pm, approximately three hours after the unfair dismissal application was dismissed, the applicant lodged the Form F8 application for this matter.

[5] The Respondent initially made a number of objections to this application, including that it was filed out of time. The Respondent expressly withdrew two objections - that the Applicant had not been dismissed, and that the minimum employment period had not been met. The latter objection did not apply anyway, as this is not an unfair dismissal matter.

[6] The Respondent initially objected to the application on the basis of it being in contravention of the multiple applications provisions in ss.725 to 733 of the Act. It is not clear if that objection is still pressed. For completeness, I note that the bar to multiple applications in s.725 of the Act does not apply in this case. The general protections application was not lodged until after the unfair dismissal application had been dismissed because the minimum employment period had not been met. Section 729 therefore does not apply as the unfair dismissal had already failed for want of jurisdiction at the time the general protections application was lodged.

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

[7] Section 366 of the Act provides when a further period is granted to accept a late application.

(1) An application under section 365 must be made:

(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.

[8] 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]

Section 366(2)(a) - Reason for delay

[9] The Applicant's reasons for delay, as explained in the Form F8, are as follows:

I would like to provide an explanation for why I did not file a General Protections claim within the 21-day timeframe. At the time, I focused on lodging an unfair dismissal claim, which I submitted within the required 21 days. My intention was to address the matter promptly and through the appropriate legal channel

At the time, I was not fully aware of certain relevant details, including the number of employees working under Maddison, which affected my understanding of the appropriate claims to lodge. Had I known these details earlier, I would have filed the General Protections claim within the 21 days.

My delay was not due to negligence but to the procedural requirements and my lack of full information at the time. I respectfully request that the claim be considered despite the delay, as I acted promptly in lodging the unfair dismissal claim and only sought to pursue the General Protections claim once I understood it was necessary and applicable.

[10] During the hearing, the Applicant that she had spoken to "Fair Work" (either the Commission or the Ombudsman) after her employment ended, and she knew that unfair dismissal claims and general protections claims were separate applications. She claims she was advised that if the unfair dismissal claim "fell through" she would be able to lodge a general protections claim and seek an extension of time. The Applicant claimed she was advised that it was better to do an unfair dismissal claim first.

[11] When I asked the Applicant about why she lodged both claims, she stated it was because she had a bad feeling about how she had been treated and wanted to receive an outcome.

[12] The Applicant claims that she was "not aware of the full details" at the time of her unfair dismissal application. There is little explaining on what basis the Applicant believed the Respondent was not a small business employer. It seems to have simply been based on the Respondent having associated entities. The existence of an associated entity, by itself, does not indicate that the employer is not a small business. Commissioner Simpson accepted the Respondent's evidence that while there were a number of associated entities, the Respondent is the only employing entity within the group.

[13] The Applicant has not provided an acceptable reason for delay. Choosing to file the wrong application is not an exceptional circumstance. The Applicant made a forensic choice to pursue an unfair dismissal application first, though she was aware that a general protections application could also be made in cases of dismissal. That is not to say, as the Applicant appears to suggest, that the two jurisdictions are interchangeable. A general protections application is a very different thing to an unfair dismissal application and requires more than a feeling that one has been treated unfairly.

[14] The Applicant has provided no acceptable reason for the delay. This weighs against a finding of exceptional circumstances.

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

[15] The Applicant's unfair dismissal application lodged on 15 July 2025 clearly put the Respondent on notice that the Applicant actively disputed her dismissal. This weighs in favour of a finding of exceptional circumstances.

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

[16] The application was lodged sixty nine days outside the 21-day statutory timeframe. Further, the Respondent has already responded to a claim which was framed in very similar terms to the current general protections application. Though the unfair dismissal matter did not proceed beyond a jurisdictional hearing, there is a very real potential for prejudice, in my view, if the Respondent is required to respond to a claim with the same factual substrata as a claim they already responded to.

[17] I consider that this weighs against an extension of time.

Section 366(2)(d) - Merits of the application

[18] It is not appropriate to embark on a detailed exploration of the merits of the matter when considering whether to grant an extension of time.

• [19] In Kornicki v Telstra-Network Technology Group,[2] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

[20] The Applicant argues that she was dismissed in contravention of s.352 of the Act as she did not attend a shift due to having a migraine.

[21] I find the claim is not devoid of merit. This factor is neutral.

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

[22] Neither party provided submitted that there were others in a like situation who had been granted an extension of time. I note it is common for applicants to initially file an unfair dismissal application, and then file a general protections claim later.

[23] I find this to be a neutral factor in this application.

[24] Having regard to all the matters set out above, 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].

[2] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

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