//
[89]
[2026] FWC 609
General information, not legal advice.
Fair Work Commission
2026-02-25
Original judgment source is linked above.
s.365 - General protections
Parker Hannifin (Australia) Pty. Limited, Chris Menke
Application to deal with contraventions involving dismissal
[2] On 18 December 2025, he made an application alleging he was dismissed from his employment with PHA in contravention of Part 3-1 of the Act, and that Mr. Chris Menke was involved in that dismissal (collectively the Respondents). General protections applications are required to be made within 21 days of the dismissal taking effect. His application was 29 days late.
[3] The Commission has power to extend the time for making the application if the Commission is satisfied that there are exceptional circumstances under s 366(1)(b).
[4] On 23 February 2026, I heard Mr. Williams's extension of time application by determinative conference using Microsoft Teams. Mr. Williams appeared and represented himself. In attendance for the Respondents were Ms. Madeline Sedrak, Country HR Manager ANZ, and Mr. Menke, Operations Manager.
[5] For the following reasons, I grant an extension of time for Mr. Williams to file his application to 18 December 2025.
When must an application for the Commission to deal with a dispute be made?
[6] Before dealing with the dispute, I must be satisfied that the application was made on time.
[7] Section 366(1) 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).
Was the Application made within 21 days after the dismissal took effect?
[9] Mr. Williams's application was filed on 18 December 2025. It was 29 days late. I therefore need to consider whether to make an order to extend the period to make the application.
(b) any action taken by Mr. Williams to dispute the dismissal.
(c) prejudice to the Respondents (including prejudice caused by the delay).
(e) fairness as between Mr. Williams and other persons in a similar position.
[14] Mr. Williams gives one reason for delay, that he was "advised by his doctor to prioritise his health."
[15] Mr. Williams gave further details of this in his oral submissions. He stated that sometime after his was dismissed, he went to his general practitioner and was advised not to make an application "until his health stabilised" and "that was exactly what I did, I followed his advice" Mr. Williams also stated "two days before he filed his application" he went back to his GP and told him he was feeling "less stressed" and his GP advised him that he could now make the application.
I am writing in support of my patient, Leonard Williams, who was advised to submit paperwork to the Fair Work Commission within the required 21-day period. Unfortunately, he was unable to meet this deadline due to significant stress related to ongoing issues in his workplace.
During this period, he experienced heightened psychological distress, which substantially affected his ability to organise, complete, and lodge the required documentation within the mandated timeframe. His symptoms were severe enough to impair his concentration, decision-making capacity, and overall functional ability.
... The delay was not due to neglect or lack of intention, but rather the direct impact of his stress and reduced capacity during this time.
[17] The Respondents' submissions on the reasons for delay blandly state "the medical material provided does not establish that [Mr. Williams] was unable to lodge a timely application."
[18] The witness statement of Mr. Boddenberg filed for the Respondents says that Mr. Boddenberg was "unaware of any medical evidence provided contemporaneously to the Respondent that indicated the Applicant was incapacitated or otherwise unable to lodge an application during the relevant period."
(i) stress, shock, confusion and similar conditions are not exceptional circumstances in
(ii) a depressive illness might point towards exceptional circumstance if the illness had a
material impact upon the applicant's capacity to lodge the application within the
(iii) the evidence should positively demonstrate that the applicant's depressive illness had
an impact on their mental capacity so as to prevent the lodging of the application
(iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to
[20] The medical report of Dr. Butrev stops short of expressing an opinion that Mr. Williams suffered from a diagnosed mental illness. He refers to "significant stress" and "heightened psychological stress."
[21] I do not take proposition (i) in the Deputy President's summary to mean stress can never be a good reason for delay. Rather, it means stress is not an exceptional circumstance in and of itself. The effect of proposition (ii) and (iii) is that stress could be a good reason for delay if it had a material effect on an applicant's capacity to lodge the application in time. Proposition (iv) suggests an incapacity by reason of stress would require medical evidence.
[22] The medical report of Dr. Butrev unequivocally states that psychological distress substantially affected Mr. Williams ability to "organise, complete, and lodge the required documentation within the mandated timeframe". He goes on: "... The delay was not due to neglect or lack of intention, but rather the direct impact of his stress and reduced capacity during this time". Mr. Williams' treating doctor is of the opinion that his heightened stress and his consequential lack of capacity explain the delay.
[23] There is no contrary evidence to rebut Mr. Williams' oral evidence that he was advised by his doctor not to make an application and that he made an application only on confirmation by his doctor that he could do so.
[24] I accept the medical opinion of Dr. Butrev. The heightened psychological stress Mr. Williams was suffering substantially affected Mr. Williams' ability to organise, complete, and lodge his application and led to the delay. This provides a good reason for the delay and counts in favour of an extension of time being granted.
WHAT ACTION DID MR. WILLIAMS TAKE TO DISPUTE THE DISMISSAL?
[25] I asked Mr. Williams if he took any action to dispute his dismissal between the date of his dismissal and the filing of his application. In his oral evidence, he stated he sent an e-mail contesting his termination after it had taken effect.
[26] During the conference, Ms. Sedrak located an e-mail Mr. Williams had sent to Mr. Boddenberg around the time of his termination and sent it to my Chambers. The e-mail was dated Monday 27 October 2025, which is two days before his termination, and contains proposals for alternatives to his redundancy. This cannot be action to dispute his dismissal because the dismissal was yet to occur.
[27] After he had been shown the e-mail Mr. Williams conceded he made no attempt to contest his dismissal between the date he was terminated and the date he made this application. He did submit that he was not in a state to contest the dismissal because of his "mental stress."
[28] The medical opinion of Dr. Butrev infers Mr. Williams may have been medically incapable of contesting his dismissal during the period of delay. Taking into account the evidence of medical incapacity, his failure to contest the dismissal should not count against an extension of time being granted.
[29] I find Mr. Williams did not take action to dispute his dismissal before he lodged his application in this matter. This may have been as a result of his reduced capacity due to the heightened stress he was experiencing. In those circumstances this is a neutral factor in a consideration of whether to extend time.
WHAT IS THE PREJUDICE TO THE RESPONDENTS (INCLUDING PREJUDICE CAUSED BY THE DELAY)?
[31] Mr. Williams submissions state "I am not aware of any specific concerns regarding prejudice to the employer if my application is allowed to go ahead. However, I understand any change can bring uncertainty."
That observation was reasonable in the context of a case where the delay in the Appellant filing her unfair dismissal application is 101 days. The observation us also consistent with the Full Bench in [GHD Pty Ltd v. Kevin Allan Black] where the relevant delay was 168 days.[11]
[33] The delay here is far shorter than the length of delay considered in Shiralee Dollar. I do not accept that a delay of 29 is likely to cause a forensic disadvantage due to fading memory. The Respondents' submissions do not identify any other prejudice. In those circumstances this is a neutral factor in a consideration of whether to extend time.
[34] Mr. Williams's submissions on the merits of his application include:
The redundancy was not genuine because the role still exists and is now being done by someone else. My dismissal was harsh. unjust and unreasonable and therefore qualifies as an unfair dismissal claim. I was bullied by Chris my manager his brother at work and treated unfairly"
As for the merit of my application. It's based on a genuine dispute regarding my employment termination, and I got evidence to support my claim.
[36] The Respondents were reluctant to make any submissions on the merits in their written material. Under the heading "procedural safeguard" in their outline of submissions they state:
The Respondent's submissions and evidence[ce] are strictly confined to the issue of late lodgement. The Respondent reserves all rights in relation to the merits of the Applicant's claims and any further evidence or witnesses that may be called should the Commission grant an extension of time.
[37] In the 21 January statement of Mr. Boddenberg, he states:
This statement is provided solely in response to the Commission's directions and is limited to matters relevant to the issue of late lodgment.[12] The Respondent does not concede that the substantive merits of the Applicant's claims are properly before the Commission at this stage.
[38] It should be noted in the directions I issued on 15 January 2026, I ordered the parties to address all the matters in s 366(2), including subsection 366(2)(d) which refers to "the merits of the application".
An unfair dismissal claim is not general protections claim
[39] In this application Mr. Williams has attempted to put an unfair dismissal square peg into the round hole of a general protections claim. The question of the genuineness of a redundancy, or whether the decision to dismiss him was "unfair", are not relevant to a general protections claim. If Mr. Williams believes those issues can be ventilated through an application under the general protection provisions of the Act, he is mistaken.
[40] The only issue in a general protections claim is whether he was dismissed for a reason that included a protected reason. It is not clear from Mr. Lawrence's application why he says he was dismissed for exercising a workplace right. The filed material does not refer to Mr. Williams making a complaint during his employment for which he was dismissed. In the course of the hearing, however, Mr. Williams submitted he had made a complaint against Mr. Menke, the second Respondent, during his employment. In the conference Mr. Menke explained the circumstances:
"12 people working overtime. There were 12 eggs. There was 24 bits of bacon and there were 12 buns. And I told everyone in advance multiple times and Lenny proceeded to grab 3 eggs, six bits of bacon. And other people would have missed out. So, I'm not sure what Lenny would have expected me to do otherwise, but I did what I felt was fair for everyone else at the time."
[41] Mr. Menke reprimanded Mr. Williams for the amount of food he had taken in front of 12 people having breakfast. Mr. Williams later complained to Mr. Menke that the food would be wasted and that it was unfair of him to raise it in front of everyone ("the Breakfast Complaint"). Mr. Williams made no submissions on any other complaints he had made while he was employed.
Is the Breakfast Complaint sufficient to amount to an exercise of a workplace right to found an application under s 365?
There is no textual or contextual basis for construing s 341(1)(c)(ii) as requiring a complaint ... to be underpinned by a right or entitlement to make it, whether sourced in the employee's contract or sourced elsewhere.[16]
[45] Mr. Williams' claims of a lack of genuineness in his redundancy, or that his dismissal are unfair are irrelevant to a general protections claim.
[46] It is possible the Breakfast Complaint is a complaint under s 341(c)(ii) on the liberal interpretation of that provision. I wish to emphasise I put it no higher than a possibility. A full assessment of the Breakfast Complaint, or a finding of fact that this complaint was a factor in the decision to dismiss Mr. Williams is not possible without a full hearing which would include the testing of evidence from the relevant witnesses on oath.
[47] I consider the prospects of a general protections claim founded on the Breakfast Complaint to be low but not unarguable. In the circumstances where the applicant has an arguable case it is not appropriate for merits to count in favour or against a finding of an extension of time being granted. This factor is therefore neutral.
FAIRNESS AS BETWEEN MR. WILLIAMS AND OTHER PERSONS IN A SIMILAR POSITION
[48] No compelling arguments were made by either party about this factor. This factor is therefore neutral to the extension of time being granted.
IS THE COMMISSION SATISFIED THAT THERE ARE EXCEPTIONAL CIRCUMSTANCES, TAKING INTO ACCOUNT THE MATTERS ABOVE?
[49] Mr. Williams provides a good reason for the delay under s 366(2)(a). This factor counts in favour of an extension of time being granted.
[50] The other four factors namely, action taken to dispute the dismissal under s 366(2)(b), prejudice to the employer under s 366(2)(c), merits under s 366(2)(d) and fairness between persons under s 366(2)(d) are all neutral.
[51] One factor, Mr. Williams reasons for the delay, counts in favour of an extension of time being granted. The four other factors in s 366(2) are neutral. Therefore, on balance, taking into account all the factors in s 366(2), I am satisfied there are exceptional circumstances to justify an. extension of time being granted.
[52] Under s 366(1)(b), I order the time for Mr. Williams to make his application be extended to the date it was filed being 18 December 2025.
[53] In due course, a notice of listing will be issued for the s 368 conference to deal with the dispute.
[2] Singh v BSG Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[7] This is nine days before Mr. Williams filed his application.
[8] [2021] FWC 3903, [25]. I have removed the case references from the excerpt.
[9] The claimed prejudice is unexplained.
[14] For example, Shea v. TRUenergy Services Pty Ltd (No 6) [2014] FCA 271.
Printed by authority of the Commonwealth Government Printer
Leonard Williams
Parker Hannifin