s.365 - General protections

Application made under s 365 - extension of time - application dismissed

• [1] Lachlan Bridgman has made an application under s 365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by Diprose Media Pty Ltd (respondent) in contravention of Part 3-1 of the Act. Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2). Mr Bridgman's dismissal took effect on 24 April 2025. The 21-day period ended on 15 May 2025. The application was lodged on 2 September 2025. For the application to proceed, Mr Bridgman requires an extension of time. The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in s 366(2)(a) to (e).

• [2] As to the reason for the delay (s 366(2)(a)), Mr Bridgman said that it was not until late August 2025 that he discovered evidence suggesting that his role had been replaced, namely online material from June that indicated a contractor was doing the same work that he used to do. Mr Bridgman said that until late August he had believed that his redundancy was genuine, but that his belated discovery suggested otherwise. But in his F8 application, Mr Bridgman said that at the time of his dismissal, the respondent told him that it might contact him regarding work as a contractor if its financial situation stabilised. It should therefore not have come as a surprise to him to see that contractors had been engaged. Further, the use of contractors some months after an employee's redundancy does not of itself call into question the legitimacy of the redundancy. In particular, the working arrangements that existed in June 2025 do not necessarily say anything about the circumstances at the time of Mr Bridgman's dismissal in April. Mr Bridgman also said that he was promised priority for contracting work. But the respondent said that it did not believe Mr Bridgman was interested in such work because he did not respond to information it gave him about contractor rates. This is not a case of a significant subsequent revelation that disclosed a cause of action. I do not consider that the reason for the delay weighs in favour of an extension of time.

• [3] As to the other mandatory considerations, Mr Bridgman did not take any action to dispute the dismissal with the respondent, other than lodging his application (s 366(2)(b)). I do not consider there to be any relevant prejudice to the employer (s 366(2)(c)). And I do not consider that there are any matters that are relevant to the question of fairness between Mr Bridgman and other persons in a like position (s 366(2)(e)). I consider these to be neutral factors. As to the merits (s 366(2)(d)), Mr Bridgman submitted that he was made redundant after raising concerns regarding unpaid overtime and penalty rates. The respondent stated that Mr Bridgman was dismissed because his position was redundant and had not been replaced, that the company had been sustaining losses, and that contractors were later used for busy periods. The assessment of the merits in an extension of time matter is necessarily a preliminary one. In my view, Mr Bridgman raises an arguable claim to which the respondent has a plausible response. I consider the merits to be a neutral factor.

• [4] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s 366(2), I am not satisfied that there are exceptional circumstances in this case. Consequently, there is no basis for the Commission to extend time. The application is dismissed.

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