s 365 - General protections

Application to deal with contraventions involving dismissal - application made out of time -extension not granted.

• [1] On 29 October 2025, Ms Kulali Atkinson applied to the Commission under s 365 of the Fair Work Act 2009 (Cth).

• [2] Ms Atkinson previously filed an application under s 372 of the Act regarding her employment with CDI (C2025/9200). The matter was allocated to me, and I conducted a conference for that matter on 13 October 2025. When Ms Atkinson's s 365 application was allocated to me, I wrote to the parties asking them to advise if they had any objections to me dealing with Ms Atkinson's s 365 application, given that I had conducted the conference for Ms Atkinson's s 372 application. Neither party objected.

• [3] Ms Atkinson resigned from her employment with CDI Electrics Pty Ltd, effective 29 August 2025. Ms Atkinson says that she was forced to resign. CDI disagrees. However, the parties agree that the employment relationship between Ms Atkinson and CDI ended on 29 August 2025, which makes Ms Atkinson's application 40 days outside the 21-day statutory deadline.

• [4] In Coles Supply Chain Pty Ltd v Milford,[1] the Full Court of the Federal Court observed that there may be an "appropriate case" where the Commission may avoid drawing a conclusion as to whether a dismissal has occurred and still proceed to determine an application for an extension of time.[2] In Taylor v Department of Justice and Community Safety,[3] the Full Bench of the Commission considered that in the context of an unfair dismissal application, an "appropriate case" includes one where an employee has resigned, there is a dispute about whether the resignation was "forced", but there is no dispute as to the date the employment ended.[4]

• [5] I find that the Full Bench's observations in Taylor are equally applicable to applications made under s 365. Accordingly, I am satisfied in this matter that it is appropriate to deal with the issue of Ms Atkinson's application being out of time first.

• [6] I conducted a determinative conference on Tuesday 16 December 2025. Ms Atkinson spoke for her case. Mr Steven Noske (Director), Mr Nik Philip (Finance Manager) and Mr Darryl Bower, attended for CDI.

• [7] Having considered the evidence of the parties and the factors in s 366(2) of the Act, I do not find that there are exceptional circumstances that justify an extension of time. Ms Atkinson's application must be dismissed.

• [8] The detailed reasons for my decision follow.

• [9] Section 366 of the Act provides that a s 365 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) if satisfied that there are exceptional circumstances.

• [10] It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique not unprecedented, nor even very rare.[5] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[6]

• [11] In determining whether there are exceptional circumstances, I must take into account the criteria in s 366(2). Each of the matters in s 366(2) must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[7]

• [12] I set out my consideration of each matter below.

• [13] Ms Atkinson needed to lodge her application by midnight on 19 September 2025. The delay is the period commencing immediately after that time until 29 October 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[8]

• [14] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[9]

• [15] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[10]

(a) Ms Atkinson resigned from her employment with CDI, effective 29 August 2025.

(b) On 17 September 2025, she filed an application under s 372 of the Act. Ms Atkinson submits that she was not informed that the facts "disclosed possible constructive dismissal" or that a s 365 application may have been the more appropriate mechanism for her situation. However, during the determinative conference Ms Atkison acknowledged that the responsibility for choosing what application to go with was hers.

(c) On 13 October 2025, Ms Atkinson and CDI participated in a conference before me.

(d) After the conference, Ms Atkinson obtained legal advice on 28 October 2025. From this legal advice, Ms Atkinson reached the view that the end of her employment met the definition of dismissal as per s 368 of the Act.

• [17] CDI submits that Ms Atkinson's account is inconsistent with contemporaneous documents, such as her s 372 application. CDI draws attention to the following from Ms Atkinson's Form F8C:

• At section 1.2, Ms Atkinson stated that on 11 September 2025, she spoke to a representative from the Fair Work Ombudsman regarding her dispute over an unpaid entitlement. The FWO representative advised her that they could not assist and referred her to a legal service.

• At section 2.1, Ms Atkinson stated that she sought financial compensation as a result of "constructive dismissal", and "recognition that my resignation was not voluntary but arose as a direct result of what I believe to be adverse action by CDI".

• [18] CDI submits that Ms Atkinson's Form F8C show that by 17 September 2025 - within the 21-day deadline - Ms Atkinson had already formed the view that she had been constructively dismissed, and her resignation was not voluntary.

• [19] During the determinative conference Ms Atkinson stated that she did feel that her resignation wasn't something she wanted to do, and she did question whether she had been constructively dismissed. However, Ms Atkinson chose to go with an application under s 372 as it was difficult to understand the difference between s 372 and s 365 and she thought that an application under s 372 was more appropriate pathway.

• [20] Ms Atkinson also says that her ability to recognise that she was forced to resign was impacted by the following issues:

(a) At the time of her resignation, she was the primary carer for her young daughter, who suffers from a medical condition that requires continuous supervision, attending medical appointments and emergency interventions.

(b) Dealing with family violence restraining order proceedings.

(d) Experiencing significant financial hardship due to the loss of her job.

• [21] Ms Atkinson submits that the above factors were substantial and materially affected her capacity to appreciate the difference between s 372 and s 365 and the 21-day deadline.

• [22] I accept Ms Atkinson's evidence regarding her serious personal matters and accept that they affected her time, resources and mental capacity to deal with matters. However, this is not a case where legal and family stressors prevented Ms Atkinson from commencing a proceeding on time. Ms Atkinson filed her s 372 application within 21 days of the employment relationship ending, and her Form F8C discloses her belief that she was constructively dismissed. Based on Ms Atkinson's own Form F8C, her personal matters did not prevent her from recognising that she was forced to resign.

• [23] I also appreciate that as a layperson it may be difficult to navigate the different types of action available in the Act. However, in this case, Ms Atkinson had the choice of filing a non-dismissal general protections claim or a dismissal general protections claim and she chose to file the first despite her belief that she was constructively dismissed.

• [24] I find that the reason why Ms Atkinson filed her application out of time is because after the conference on 13 October 2025, she reached the view that s 365 was a more appropriate pathway to pursue her disputes with CDI. I do not find that this is an acceptable reason for the delay.

• [25] I find that this is a factor that weighs against a finding of exceptional circumstances.

• [26] This consideration is directed at action taken to dispute the dismissal once it has occurred. Ms Atkinson raised actions she had taken to dispute issues with CDI prior to the employment relationship ending. These are not relevant to this consideration.

• [27] Ms Atkinson also says that she sought advice from a workplace lawyer to understand her rights and obligations. This was Ms Atkinson seeking advice and cannot be characterised as action taken to dispute the dismissal.

• [28] Based on the contents of Ms Atkinson's Form F8C, I do find that Ms Atkinson's application under s 372 did dispute the dismissal in substance, if not form. I find that this is a factor that weighs in favour of a finding of exceptional circumstances.

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

• [29] Ms Atkinson submits that the facts in this matter are recent and witnesses remain available; therefore, there is no prejudice to CDI.

• [30] CDI submits that there is prejudice as witnesses' recollection about Ms Atkinson's performance and attendance are already fading and management time and cost must not be devoted to a dismissal dispute that should never have arisen, given that Ms Atkinson resigned.

• [31] The parties argued over the significance of Ms Kulali retaining possession of a company laptop and whether that had any impact on the prejudice to the employer. Ultimately, I do not find that there is material prejudice to CDI.

• [32] However, the absence of prejudice is not, of itself, conclusive of exceptional circumstances.[11] In these circumstances I treat this consideration neutrally.

• [33] The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[12] Further, the primary consideration is whether Ms Atkinson has an arguable case.[13] In cases like this where there is not a full examination of the substantial merits, it is appropriate to assess any limited material through the prism of viewing the applicant's case at its most favourable.[14]

• [34] The parties disagree on whether Ms Atkinson was dismissed and the events leading up to the end of the employment relationship. This includes a dispute over whether CDI was able to alter the number of days that Ms Atkinson was to work from home; Ms Atkinson's work performance; and a disciplinary process that involved a written warning.

• [35] Given the limited evidence provided and the contested nature of the relevant events, I am unable to make any merit findings at this preliminary stage. I find that this consideration is a neutral factor in assessing whether there are exceptional circumstances.

2.5 Fairness as between the Applicant and other persons in a similar position

• [36] The parties did not make any substantive submissions that properly address this point. I do not make any findings regarding this consideration.

• [37] Having considered all the circumstances of this matter and the factors in s 366(2), I am not satisfied that there are exceptional circumstances. The statutory considerations are largely neutral, and I find that that lack of sufficient reason for the late filing outweighs the finding that Ms Atkinson did take action to dispute her dismissal.

• [38] As I am not satisfied that there are exceptional circumstances, I order that Ms Atkinson's application be dismissed.

[1] [2020] FCAFC 152.

[3] [2025] FWCFB 173.

[5] Nulty v Blue Star Group Ltd [2011] FWAFB 975 [13].

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

[8] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287 [12] (Watson VP and Smith DP).

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

[11] Jovcic v Coopers Brewery Limited [2023] FCA 797 [16](d); BQQ15 v Minister for Home Affairs [2019] FCAFC 218 [33]; Parker v R [2002] FCAFC 133 [6]; Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, 348-9.

[12] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 [14].

[13] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 [32]-[34].

[14] Ivan Cowen v Renascent Regional Pty Ltd [2021] FWCFB 2606 [42].

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