s 365 - General protections

General protections involving dismissal - out of time - extension of time granted

[1] On 10 February 2026, Linda Dixon (the Applicant) applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth) (the Act) for it to deal with general protections contraventions involving dismissal.

• [2] The Act requires an application made under s 365 to be lodged within 21 days after an applicant's dismissal took effect or within such further period as the Commission allows under s 366(2) of the Act.[1] As the Applicant asserted her date of dismissal was 19 January 2026, it was apparent that the application had been made one day late. Whilst the application was lodged outside the 21-day period prescribed by s 366(1)(a) of the Act, the Respondent submitted that it did not raise any jurisdictional objections to the application, and preferred that the matter proceed efficiently to the consideration of substantive issues. Parties held no objection to the matter being determined on the papers and I considered that was the appropriate approach, considering the circumstances of the case.

[3] For the application to proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 366(2) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the factors listed at s 366(2)(a)-(e). The issue before me is whether the circumstances are exceptional and, if they are, whether it is fair and equitable for an extension to be granted.

• [4] The Applicant contends that the late lodgement of her application arose from legal representative error. In support of that position, the Applicant relies upon the witness statement of her legal representative who has explained his error regarding the electronic lodgement of the Applicant's application. Having reviewed the materials filed, in my view, it was the conduct of the Applicant's legal representative that solely contributed to the period of the delay. However, it is important to highlight that the error made by the legal representative was inadvertent and does not reflect conduct that was tardy or untoward. The conduct of the Applicant must of course be examined because there are a number of principles which apply to cases concerning representative error in the context of an application.[2] In McConnell v A & PM Fornataro,[3] a Full Bench considered those principles in the context of an out of time application under s 365 of the Act. Those principles have been adopted and applied for the purpose of my consideration, which, in short, is that I consider the Applicant was blameless in regard to the delay period. There was nothing more that the Applicant could reasonably have been expected to do to ensure her application was filed within time. I therefore consider that the Applicant has provided a plausible reason for the delay period and this finding weighs toward a finding of exceptional circumstances.

• [5] Having considered the other factors that warrant consideration in these types of cases, I observe that it cannot be concluded that the Applicant's application is absent merit (s 366(2)(d)) and I consider this a neutral factor, as are the factors in s 366(2)(b) and (c). Regarding the consideration of fairness as between the person and other persons in a like position, previous decisions of this Commission, including Jordan v Multiplex Australasia Pty Ltd,[4] weigh toward a finding of exceptional circumstances given the conduct of the Applicant on this occasion is faultless in respect of the late lodgement of her application.

[6] As noted, in the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am, on balance, satisfied that there are exceptional circumstances as contemplated by s 366(2) of the Act and consider it fair and equitable that an extension of time is granted to 10 February 2026. Accordingly, the matter will be listed for conference.

[1] Fair Work Act 2009 (Cth) s 366(1).

[2] See, e.g., Davidson v Aboriginal & Island Child Care Agency (1998) 105 IR 1; Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728; Qantas Ground Services Pty Ltd v Rogers [2019] FWCFB 2759; Melios v Qantas Airways Ltd [2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd [2011] FWA 2802; Long v Keolis Downer [2018] FWCFB 4109.

[3] [2011] FWAFB 466.

[4] [2024] FWCFB 440.

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