s.365 - General protections

Application to deal with contraventions involving dismissal - application made out of time -extension granted.

• [1] Life Without Barriers summarily dismissed Ms Kylie Fernandez on Thursday 18 September 2025. Ms Fernandez filed an application under s 365 of the Fair Work Act 2009 (Cth) on Sunday 12 October 2025, three days outside the statutory time limit. I conducted a determinative conference on Wednesday 26 November 2025 to hear evidence and submissions on whether an extension of time should be granted.

• [2] At the end of the determinative conference, I informed the parties of my decision that there were exceptional circumstances and ordered that the time for Ms Fernandez to make her application to the Commission under s 365 of the Act be extended to Sunday 12 October 2025. I advised the parties that full written reasons would be provided. I then conducted a conference under s 368 of the Act.

• [3] These are my full written reasons for my decision.

• [4] 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.

• [5] 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.[1] 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.[2]

• [6] 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.[3]

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

• [8] Ms Fernandez needed to lodge her application by midnight on Thursday 9 October 2025. The delay is the period commencing immediately after that time until Sunday 12 October 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]

• [9] 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.[5]

• [10] 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.[6]

• [11] Ms Fernandez was aware of the 21-day time limit. However, she says that from her dismissal to Sunday 12 October 2025, she was dealing with multiple matters that significantly affected her ability to file on time. This included the following:

• Ongoing family and domestic violence: It is not contested that Ms Fernandez and her children have been experiencing family and domestic violence since October 2024. Nor is it contested that this has led to Ms Fernandez needing to take extended leave from work and that Ms Fernandez has been certified as either unfit for work or with limited capacity to work throughout 2025. Ms Fernandez provided letters from her general practitioner and her psychiatrist in support of these grounds, which also explained that she has been diagnosed with a mental health condition. I accept Ms Fernandez's evidence in this regard.

• Legal proceedings: Ms Fernandez has had to attend Family Court proceedings regarding her children's custody and safety. Ms Fernandez provided details of the proceedings in the Family Court going back to June 2025. Ms Fernandez also explained that as she was legally unrepresented, she needed to dedicate time preparing for the Family Court Proceedings. I accept her evidence in this regard.

• Family crisis: Ms Fernandez's child suffered a significant health crisis in the days following her dismissal. Out of respect for Ms Fernandez and her family, I will not detail the specifics of this in this decision. LWB submitted that insufficient evidence was provided in support of this contention. I note that Ms Fernandez provided a letter from her psychiatrist that referred to this crisis, and it is consistent with the other issues Ms Fernandez was experiencing at the time. On balance, I accept Ms Fernandez's evidence in this regard.

• [12] Ms Fernandez also says that her mental health condition and subsequent medical restrictions, affected her capacity to complete administrative tasks.

• [13] LWB submits that Ms Fernandez's Family Court proceedings were not, "out of the ordinary" for her. Therefore, Ms Fernandez's Family Court proceedings do not justify her late filing.[7]

• [14] LWB also submits that Ms Fernandez's medical restrictions did not prevent her from representing her children in the ongoing Family Court proceedings; responding to her child's health crisis; or attending regular medical and legal appointments for herself or her children. LWB effectively argues that as Ms Fernandez had the capacity to deal with these matters, she does not have a good reason for why her general protections application was filed late.[8]

• [15] A respondent to a proceeding obviously has a right to defend its position and question whether an applicant has discharged their evidentiary onus. However, in circumstances like this, where LWB did not largely challenge Ms Fernandez's evidence, I found LWB's submissions to be unfortunate and misguided.

• [16] It is understandable, and even expected, that when confronting legal proceedings and health emergencies arising from sustained domestic violence that something will slip through the cracks. The combination of factors Ms Fernandez was dealing with would be objectively difficult for anyone to handle.

• [17] I am satisfied that the combination of domestic and family violence; the ongoing Family Court proceedings (that included two listings in the period between Ms Fernandez's dismissal and Sunday 12 October 2025); and Ms Fernandez's child's health crisis explain why her application was filed three days' late.

• [18] I find that Ms Fernandez has an acceptable explanation for why her application was filed late. I find that this is a factor that weighs in favour of a finding of exceptional circumstances.

• [19] This consideration is about whether a respondent is on notice that the applicant actively contests the decision.[9] Ms Fernandez's evidence is that she spoke with the Fair Work Ombudsman and met with a lawyer after her dismissal. I accept that Ms Fernandez took this action but find that this does not constitute action to dispute the dismissal. This is a factor that weighs against a finding of exceptional circumstances.

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

• [20] Ms Fernandez submits that as the delay is only three days, LWB have not experienced prejudice as all evidence, witnesses and records remain current and accessible.

• [21] LWB submits that it has invested significant time and resources to respond to Ms Fernandez's general protection claim and this current matter to determine whether an extension of time should be granted. LWB further submits that Ms Fernandez did not contact LWB after her dismissal to alert them to her potentially filing a general protections claim late. It is unclear how this is relevant to this consideration.

• [22] I find that the delay of three days has not caused prejudice to LWB. However, the absence of prejudice is not, of itself, conclusive of exceptional circumstances.[10] In these circumstances, I treat this consideration neutrally.

• [23] The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[11] Further, the primary consideration is whether Ms Fernandez has an arguable case.[12] 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.[13]

• [24] Ms Fernandez says that she was dismissed due to her family and career responsibilities and the psychological injury that developed from her employment with LWB. LWB says that it dismissed Ms Fernandez due to a non-work-related injury and an assessment that she could not meet the inherent requirements of her role.

• [25] 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.

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

• [26] Ms Fernandez submits that comparable matters before the Commission have recognised that short delays caused by health crises and urgent legal matters constitute exceptional circumstances, particularly where the applicant acted promptly. However, Ms Fernandez did not refer me to any of these comparable matters. LWB referred to other matters where the Commission has refused to grant extensions for shorter periods of time, but upon examination, those decisions do not bear any similarity to this current matter. I treat this consideration neutrally.

• [27] Having considered all the circumstances of this matter and the factors in s 366(2), I am satisfied that there are exceptional circumstances. I have given significant weight to the short length of the delay and my finding that Ms Fernandez has a satisfactory reason as for why her application was filed late.

• [28] As noted in [2] of this Decision, as a conference has been conducted in accordance with s 368 of the Act, the Commission's function in this matter is now concluded.

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

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

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

[7] Respondent's Outline of Argument, Digital Court Book 56 [7].

[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, at 299; Nicolas JR v Nortask Pty Ltd [2014] FWC 5324 [67].

[10] Jovcic v Coopers Brewery Limited [2023] FCA 797.

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

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

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

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