s.365 - Application to deal with contraventions involving dismissal

General protections application involving dismissal - application filed out of time - representative error - circumstances established to be exceptional - extension of time granted - application to proceed.

• [1] This decision concerns an application by Ms Lida Tajvar (Applicant) for relief under the general protections provisions involving dismissal pursuant to s 365 of the _Fair Work Act 200_9 (Act).

• [2] The Applicant's employment with Lovisa Pty Limited (Respondent) was terminated with effect from 10th June 2025. At the time of her dismissal, Ms Tajvar was aware of the requirement for any application to the FWC in relation to her dismissal be made within 21 days.

• [3] On 19th June, Ms Tajvar engaged Jewell Hancock Employment Lawyers to prepare and file a general protections application on her behalf. On 1 July 2025, she confirmed her instructions to Jewell Hancock to file her application with the FWC.

• [4] The general protections application was lodged with the FWC on 8th August 2025.

• [5] Section 366(1) of the Act states that an application such as this must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 366(2). The period of 21 days ended at midnight on 1 July 2025. The application was, therefore, filed 37 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made. The Respondent opposes this request.

• [6] The Act allows the Commission to extend the period within which a general protections involving dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor 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 of no particular significance, when taken together can be considered exceptional.[2]

• [7] The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [8] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

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

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

• [9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

• [10] The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an Applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the Applicant's favour, however all of the circumstances must be considered.[3]

• [11] The Applicant identifies the principal reason for the delay is by error, that her legal representative failed to file her application within the required time. That she was aware of the 21-day filing requirement, took steps to dispute her dismissal by engaging legal representatives to prepare and file her application, and gave clear written instructions it be filed by her representatives within the required time.

• [12] Ms Tajvar has provided uncontested evidence to Commission to support her version of events and relevant supporting material. This evidence clearly demonstrates her intent, action and instruction to ensure her application was filed within time.

• [13] Mr Andrew Jewell, Ms Tajvar's legal representative has also provided a witness statement in further support of his client's position. Mr Jewell's evidence is that he was engaged by Ms Tajvar to file her general protections application on 19th June 2025 and that on 1 July he received written instructions from her to file the application with the FWC.

• [14] Mr Jewell submits that at 9.06pm he sent an email to the FWC Registry with the heading 'Lida Tajvar' indicating attached for filing was her general protections application. His uncontested evidence is that while he intended to attach an application on behalf of the Applicant he had prepared, by error, he incorrectly attached a different file with the same name which was the application of another client. At 9.07pm on 1 July, Mr Jewell sent the Applicant an email advising that he had filed her general protections application with the FWC because he believed this is what he had done. Having not received an update from the FWC on Ms Tajvar's application after being asked by her to do so, on 8th August Mr Jewell contacted the FWC and was advised about the application he had filed on 1 July in error. It was at this time he checked the emailed sent to the FWC on 1 July and realised Ms Tajvar's application had not been filed as he thought. Mr Jewell immediately filed the correct application with the FWC on behalf of the Applicant.

• [15] Ms Tajvar presents no further reasons for the delay.

• [16] I have considered the contested evidence of both the Applicant and her representative. I accept this evidence establishes the Applicant took steps the dispute her dismissal within the required time by engaging legal presentation and provided them clear instructions. These instructions include her direction to file her application with the FWC within time. I accept this evidence.

• [17] That Ms Tajvar's application was not filed is the sole responsibility of Mr Jewell and his error. In previous decisions of the Commission considering instances of representative error, it is well established there is a distinction between the delay cause by the representative where the employee is blameless and when the employee has contributed to the delay.[4] This is the case in this instance.

• [18] Consequently, I am satisfied these circumstances meet the test of being considered "exceptional circumstances" as they are "unusual, out of the ordinary and uncommon". It is also the case I consider Ms Tajvar should not be disadvantaged by the error of her representative.

• [19] Because of these conclusions I am satisfied Ms Tajvar has presented a clear, reasonable and uncontested explanation as to why her application was not filed with the Commission until 8 August 2025.

• [20] This fact, in addition to those set above weigh in favour of an extension of time.

• [21] Ms Tajvar's evidence is that she was aware of the 21-day filing requirement and that she appropriately took steps to seek legal representation, providing clear instruction and direction that her application be filed with the FWC within the required time. This evidence is not contested and weighs in favour of the extension of time as the Applicant was entitled to rely on the diligence of her legal representation.

• [22] Ms Tajvar submits there is no prejudice arising for the Respondent should her application be permitted to proceed. The Respondent made no submissions on this factor. I have considered these submissions, and I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of an extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances and consider this a neutral factor.

• [23] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed, and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.

• [24] Ms Tajvar's submissions on the merits are that she was dismissed for reasons that including her physical disability and proposed personal leave. The Respondent denies these matters had anything to do with its decision to end her employment. In these circumstances, it is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

• [25] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. In the present case, Ms Tajvar submits allowing her application is not unfair to other persons in a similar position and relies on previous decisions of the Commission where an extension of time has been granted due to representative error.[5] The Respondent did not make any submission in this regard.

• [26] This being the case, I consider it would be unfair to the Applicant where in similar circumstances an extension of time has been granted and conclude this factor weighs in favour of the Applicant.

• [27] Having regard to the matters I am required to take into account under s 366(2), and all of the matters raised by the Applicant, I am satisfied that there are exceptional circumstances. In my view, the circumstances that she confronted described above, considered individually or together, met the test of being exceptional. Because I am satisfied that there are exceptional circumstances, I determine to allow an extension of time for her application to proceed under s 366(2).

• [28] The parties will be directed to participate in a s.368 conference by my Chambers in due course.

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

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

[4] Clark v Ringwood Private Hospital, P5279 (AIRCFB [1997] 74 IR 413.

[5] Dean-Villalobos v QGC Limited t/a QGC [2013] FWC 1537.

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