s.365 - General protections

Application made under section 365 to deal with contraventions involving dismissal - extension of time - application dismissed.

[1] Ms Kudzanai Lindsay Ganyeka (the Applicant) has made an application under s.365 of the Fair Work Act 2009 (Act) in which she alleges that she was dismissed in contravention of Part 3-1 of the Act by Vivid Property Services Pty Ltd (the Respondent). It is clear - and the Applicant acknowledges - that the application was lodged outside of the 21-day limit imposed by the Act. The Applicant's dismissal took place on 9 January 2026, meaning her application was due to be filed before midnight on 30 January 2026. The application was lodged on 12 February 2026 meaning it was 13 days late. Where an application is lodged outside of the 21-day limit it can only proceed if the Applicant is granted a further period of time for lodgment under s.366(2) of the Act.

"The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

(d) the merits of the application; and

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

[3] It is a requirement of the Form F8 Application that an applicant who is lodging an application outside of the 21-day time limit must address these issues when completing the form. The Applicant in the present matter has completed the relevant section of the Form F8 and as such I have been able to make an assessment of each of those matters, which is set out below.

[4] The Applicant submits that at the time of dismissal she had a claim before the Fair Work Commission (FWC) lodged under s.372. This claim - being claim number C2026/183 - alleged that the Respondent had taken adverse action against the Applicant by way of seeking to expand her responsibilities while simultaneously reducing her salary. The Respondent denied that it had engaged in any adverse action. The parties took part in a conciliation conference before Deputy President Boyce on 11 February 2026, but the matter did not resolve.

[5] The Applicant submits that the present matter involves the same parties and the same facts, albeit that she now claims that the actions of the Respondent forced her to resign her position. The Applicant explains her thinking as follows:

"At the time of my resignation, I already had an active General Protections application in progress. I believed in good faith that the Fair Work Commission conciliation process for that claim would provide a forum to address the entirety of the conduct - including the forced nature of my resignation (constructive dismissal).

I waited to lodge the dismissal claim because I wanted to avoid duplicating proceedings and hoped to reach a settlement during the scheduled conciliation. I believed that "bundling" the issues was the most efficient way to resolve the matter without wasting the Commission's or the employer's resources.

It was only during the conciliation on 11/02/2026 that it became clear the employer refused to acknowledge the impact of the conditions leading to my resignation or offer any form of compensation. Upon realizing that the non- dismissal claim could not remedy the loss of my employment, I moved immediately to lodge this application."

[6] In summary, the delay in lodgment can be seen to be due to the Applicant incorrectly assuming that her s.372 matter could be expanded to encompass a new scenario, being one in which she had resigned but was claiming forced resignation. I note that the FWC's website contains, on the page used to access the Form F8C, (General Protections - no dismissal) the following statement (my emphasis):

"Only use Form F8C if you are a current or potential employee or worker who:

• has not been dismissed AND
• believes someone has taken 'adverse action' against you AND
• believes the laws protect you because the reason for the adverse action is illegal ('prohibited')."

[7] The Form F8C itself contains the following (emphasis in original):

This form is used to lodge an application with the Commission to deal with a general protections dispute not involving dismissal, under section 372 of the Fair Work Act 2009."

[8] As such, I am satisfied that it is clear to applicants that the Form F8C is used in circumstances where the employee has not been dismissed. Where an employee is dismissed, or alleges that their resignation was forced, they may lodge either a Form F2 claiming unfair dismissal if they are protected from unfair dismissal or a Form F8 claiming dismissal in breach of the general protections. The Applicant - who is protected from unfair dismissal - has not lodged either of these two complaints within the 21-day time limit imposed by the Fair Work Act (the Act) but rather persisted with her Form F8C application in circumstances where her situation has changed significantly.

• [9] Further, the Applicant provides no indication in her submissions of any attempt to seek advice about whether she could simply continue with her non-dismissal claim and avoid the need to lodge a separate claim to deal with her dismissal. Had she done so and given the findings in Ioannou v Northern Belting[1] regarding converting applications from one form into another, she would likely have been made aware that she needed to make a new and relevant application. Given this, I regard the reason for the delay as being the Applicant's lack of understanding of the correct process for lodging applications. As has been found repeatedly by the FWC[2] such lack of understanding does not constitute exceptional circumstances. As such, this matter weighs against such a finding.

• [10] The Applicant submits that she advised the Respondent in her letter of resignation that she was not leaving voluntarily but was resigning as she found their actions left her with no alternative. She further submits that she participated in conciliation at the FWC with respect to her s.372 claim. Previous cases[3] have found that this matter is relevant where an applicant has dealt directly with the respondent to contest a dismissal. The Applicant does not suggest that in her letter of resignation she flagged further action against the Respondent. However, she did express a view about the resignation being forced rather than voluntary. On that basis, I am prepared to accept that this matter weighs in favour of a finding of exceptional circumstances, albeit only slightly.

• [11] The Applicant submitted that there would be no prejudice to the employer if her matter was allowed to proceed and I accept that this is the case. However, as has been found by the FWC previously[4], an absence of prejudice to the respondent does not weigh in favour of a finding of exceptional circumstances. As such, I regard this matter as neutral in my consideration.

[12] The Applicant submits that her case has merit. However, as is usually the case, the Commission does not have the benefit of having tested the evidence in a hearing. Consistent with previous practice, I therefore make no finding on merit and regard this matter as neutral in my consideration.

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

[13] The Applicant's submissions in respect of this matter misapprehend the intention of this provision. The provision is to draw the FWC's attention to persons within the applicant's knowledge who are in a similar position to themselves and have had a finding issued by the FWC. To illustrate, if the Applicant had identified another person in very similar circumstances to his own who had been granted an extension, this would assist her case.

[14] However, this matter is seldom called upon as applicants rarely identify such persons. In this case, with no persons identified I regard the matter as neutral in my considerations of a finding of exceptional circumstances.

• [15] The Applicant repeated her claim about lack of understanding but also submitted that she was suffering from a mental fog that arose from her stress and anxiety - which she attributes to the Respondent's action - and that she was not capable of negotiating the requirements of a dismissal claim along with her s.372 claim. I do not accept this constitutes exceptional circumstances. The FWC has previously tended to accept that while persons who are dismissed are very likely to experience anxiety and stress, in the absence of compelling medical evidence that they were incapable of performing the task of lodging an application, such stress and anxiety is not considered exceptional.[5] I further note that the Applicant was capable of pursuing her s.372 claim including by attending a conciliation at the FWC during the period of delay. As such, I am not prepared to give any weight to this submission.

[16] I have considered the matters set out in s.366(2) of the Act. I find that three are neutral, one weighs against a finding of exceptional circumstances, and one weighs slightly in favour. As such, on balance I find that there are no exceptional circumstances. The application is therefore made out of time and should be dismissed and I so order.

[1] See Peter Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660 at [22].

[2] See for example Sofia Alvarenga v Rebel Sport Ltd [2025] FWC 3929 at [10].

[3] See for example Jenson Curtin v High Country Plumbing & Gas Fitting Pty Ltd [2022] FWC 2916 at [10].

[4] See for example Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [21].

[5] For example see Ms Susan Rose v BMD Constructions Pty Ltd [2011] FWA 673 at [10].

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