s.365 - General protections

Application to deal with contraventions involving dismissal - application filed out of time - exceptional circumstances not established - application dismissed.

• [1] This decision concerns an application made by Ms Krystal Jansen (Applicant) on 4 November 2025 under s.365 of the Fair Work Act 2009 for the Commission to deal with a general protections dispute involving her dismissal by CAPDA Pty Ltd (Respondent).

• [2] Section 366(1) of the Act requires that a general protections application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).

• [3] The Applicant's employment with the Respondent commenced on 17 March 2025 and was terminated on 12 August 2025. Her general protections application was made some 63 days outside the 21-day period prescribed by the Act and may only proceed if the Commission allows an extension of time.

• [4] The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]

• [5] Section 366 of the Act provides:

(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.

• [6] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:

"[13] In summary, the expression 'exceptional circumstances' has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe 'exceptional circumstances' as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural 'circumstances' as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of 'exceptional circumstances' includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

• [7] The onus of establishing exceptional circumstances lies with the Applicant.

• [8] I will now deal with each of the provisions of s.366(2) of the Act.

• [9] The period of delay requiring explanation to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason supports a finding that there are exceptional circumstances.[3]

• [10] The Act does not specify what reason for the delay might weigh 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 assessing whether exceptional circumstances exist, while 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.[4]

• [11] The Applicant provided the explanation for the delay as follows:

"The delay in filing my application arose due to a combination of exceptional circumstances, including my injury, medical restrictions, and incorrect advice regarding the appropriate application to file.

Following my dismissal, I was initially advised to lodge an unfair dismissal application, which I did within the relevant period. That application was later withdrawn once I became aware that the correct jurisdiction for my circumstances was a general protections dismissal application, given that my termination related to my injury and medical restrictions.

The time taken to understand the distinction between these applications, withdraw the unfair dismissal claim, and prepare and file the correct general protections application contributed to the delay.

This occurred at a time when I was also recovering from a significant injury that required the use of crutches and strict medical restrictions, including a six-month work from home certificate. During this period, I was managing ongoing pain, limited mobility, medical appointments, and the psychological distress associated with losing my employment in circumstances I believe were unlawful.

My capacity to promptly seek advice, attend appointments, and navigate the Fair Work process was materially impacted. When these factors are considered together, they constitute exceptional circumstances that explain and justify the delay in filing my application."

• [12] Having considered the matters put by the Applicant, I do not accept that they constitute exceptional circumstances. The Applicant has not provided any medical evidence to substantiate any incapacity that prevented her from filing the present application within time. During the relevant period, she was capable of filing an unfair dismissal application.

• [13] In respect of the Applicant's explanation for the delay caused by filing the 'wrong' application, the Commission's records indicate that the Applicant was contacted by the Commission on 1 September 2025 and advised that her unfair dismissal application could not proceed if she had not met the minimum employment period. Despite this, the Applicant did not file the present application until 4 November 2025. The Applicant has failed to provide a satisfactory explanation for this further period of delay.

• [14] Finally, it is well established that confusion about the correct application to make is not exceptional.

• [15] For these reasons, I am not satisfied that an acceptable explanation has been provided for the Applicant's failure to file this application within the statutory timeframe.

• [16] This weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

• [17] The Applicant submits that she contacted the Managing Director following her dismissal to seek alternative positions, additional training, and clarification of the reasons for her dismissal.

• [18] To the extent these actions could be said to constitute disputing the dismissal, I consider that this weighs only marginally in the Applicant's favour.

Prejudice to the employer (including prejudice caused by the delay)

• [19] Despite the relatively lengthy delay, I do not consider the Respondent would suffer any prejudice if an extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.

• [20] In Nulty v Blue Star Group Pty Ltd[5], the Full Bench said:

"It would appear that this factor, described in the Act as 'the merits of the application' is directed towards some elementary assessment of the potential prospects of the matter if the extension was granted and the matter proceeded to hearing and ultimately determination."

• [21] For the purpose of determining whether to grant an extension of time for the Applicant to file this application, the Commission 'should not embark on a detailed consideration of the substantive case.'[6]

• [22] The Applicant asserts that she was dismissed because of her injury and medical restrictions. The Respondent contends that she was dismissed during probation period for performance issues.

• [23] Given the absence of any evidence, I am unable to make any determination of the merits in this matter. I therefore find the merits to be a neutral consideration.

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

• [24] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[7] considered this criterion and said 'cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.'[8]

• [25] The Applicant submitted that allowing her application would be fair and consistent with the principles of the Fair Work Act, however did not point to any other persons in a similar position.

• [26] I consider this to be a neutral consideration in the present matter.

• [27] The matters the Commission must take into account do not support a finding that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. On this basis, no further time is allowed for the application to proceed and the application is dismissed.

[1] [2016] FWCFB 6963.

[2] [2011] FWAFB 975.

[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

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

[5] [2011] FWAFB 975.

[6] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

[7] [2015] FWC 8885.

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