s 365 - General protections

General protections involving dismissal - out of time - application dismissed

• [1] On 7 November 2025, Lorraine Kimberley (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. The Applicant had been dismissed from her position with Secure Journeys Pty Ltd (the Respondent) on 10 July 2025. 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(1)(b) of the Act.[1] The Respondent objected to the application on the basis that it was filed outside the 21-day period prescribed by s 366(1)(a) of the Act. The application had been made 99 days outside of the prescribed statutory period.

• [2] Having heard from the parties and having considered the materials filed, I considered it appropriate to determine the matter on the papers. 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, not satisfied that there are exceptional circumstances as contemplated by s 366(2) of the Act and therefore the application is dismissed. An Order[2] issues concurrently with this decision and my detailed reasons follow.

[3] Under s 366(1)(b) and (2) of the Act, the Commission has the power to extend the time within which an application for a general protections dismissal dispute can be made.

• [4] In Tamu v Australia for UNHCR,[3] a Full Bench of the Commission summarised the principles relevant to applications of this kind:

[16] Section 366(1) provides that a general protections application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2). The 21 day period prescribed in section 366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.

[17] Section 366(2) of the Act sets out the circumstances in which the Commission may grant an extension of time as follows:

"(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

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

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

[18] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension. A decision whether to extend time under section 366(2) involves the exercise of a discretion.

[19] The meaning of "exceptional circumstances" in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd ('Nulty'),[4] as follows:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance."

[20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.' (footnotes omitted)

• [5] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd ('Stogiannidis'),[5] a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers,[6] which had concluded that for 'exceptional circumstances' to be established, an applicant must provide reasons for the whole of the period of delay. In Stogiannidis, the Full Bench expressed:

[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time 'needs to provide a credible explanation for the entire period', it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.

• [6] It has been observed that the Act does not specify what reason for delay might tell in favour of granting an extension.[7] However, decisions of the Commission have referred to an acceptable[8] or reasonable[9] explanation. The absence of any explanation for any part of the delay may weigh against an applicant in the assessment of whether there are exceptional circumstances, whilst a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, however all of the circumstances must be considered.[10]

• [7] The relevant period required to be considered under s 366 is the period after the 21-day timeframe for lodging the application.[11] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[12]

[8] The Applicant relies on several factors for the delay in lodging her application.

[9] First, she was shocked and distressed by the sudden and unexpected nature of her dismissal. Second, having attempted to seek legal representation through multiple channels, each lawyer she consulted advised that she had no viable grounds to pursue the matter because she was still in her probationary period. Third, she was experiencing significant mental and emotional strain due to the abrupt loss of her primary source of income. Fourth, she had ongoing care obligations for certain persons. Fifth, although she later identified a lawyer who advised there may have been grounds for protection, this occurred after the statutory period and by this time she had secured employment allowing her the stability and clarity of mind to better understand and consider her situation.

[10] Briefly stated, none of these factors weigh toward finding a plausible reason or reasons for the delay period.

• [11] As was identified in in Bates v Joblink Plus Limited, having been drawn from the reasons of the Full Bench in Shaw v Australia and New Zealand Banking Group Ltd, stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves.[13] It is well-established that the loss of employment is a serious event in a person's life, and that the aforementioned responses and consequences are not unusual.[14] Financial hardship after the loss of a job is not unusual.

[12] Whilst it is accepted that an applicant's medical condition can be so significant that it affects the applicant's mental capacity to prepare and file an application with the Commission, this is not the case here. The Applicant's self-appraisal of her mental clarity, emotional strain and mental strain, forms an unreliable basis upon which to conclude that she suffered mental incapability that gave rise to part of the reason for the delay.

• [13] In Underwood v Terra Firma Pty Ltd, the Full Bench accepted the finding made at first instance that the applicant had failed to positively demonstrate that his depressive illness had impacted his mental capacity so as to prevent him from making the application within 21 days.[15] The Full Bench affirmed the findings that the medical evidence relied upon 'did not positively demonstrate that the Appellant's depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21-day time frame' and that no exceptional circumstances were established.[16]

• [14] In the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish that they were prevented from lodging an application due to a medical condition where the employee demonstrates capacity to act by performing other tasks following the dismissal.[17] In this case, there is no probative medical evidence showing incapacity at a particular time or times in the delay period. Further, the Applicant asserts that during the delay period, she secured alternative employment and sought out legal advice, which contradicts any claim that the Applicant was incapacitated during the delay period to the extent that she could not lodge her unfair dismissal application in time.

[15] The Applicant further relies upon the care requirements that were imposed upon her and her husband during the delay period for two other persons. In support of this assertion, the Applicant relies upon, in part, a document titled 'Discharge Summary' that shows that a person was admitted into hospital on 30 August 2025 and separated from the hospital on 11 September 2025. The Discharge Summary shows that the stay in hospital was 13 days. Further, the Applicant reports that the person had been in hospital for a period of six months, was discharged for two weeks and was then readmitted into hospital. Dates are not provided in respect of the other periods of hospitalisation. Whilst appreciative that the Applicant purports having held caring responsibilities for two persons, arguably, whilst hospitalised, care was being provided for one of those persons by a tertiary hospital. Further, the caring responsibilities that remained for the other person were shared between the Applicant and her husband, and those caring responsibilities do not appear to have negatively impacted upon the Applicant's ability to obtain further employment or to have sought out, on multiple occasions, legal advice.

• [16] As to the Applicant's attempts to obtain legal advice, no evidence is provided in respect of those attempts and as it stands, information on making applications regarding a dismissal is available on the Fair Work Commission website. If it is the case that the Applicant contends that her ignorance of the law, in part, delayed the making of her application, such ignorance has not been found to be an exceptional circumstance under the Act in relation to the granting of an extension of time.[18]

[17] The Applicant further mentioned that she had assumed responsibility for the emotional support of her husband. However, no cogent evidence was adduced as to why the Applicant's husband required particular emotional support, why this responsibility was delegated to the Applicant, and the period during which she assumed this responsibility.

[18] Whilst not unsympathetic to the Applicant's challenging circumstances during the period following the end of her employment and during the period of delay, the reasons relied upon by the Applicant, even in culmination and including being an emotional support for her husband, do not provide a sound basis for the reason for the delay. During the delay period the Applicant was able to secure employment. The Applicant's submission that she did not want to burden herself by pursuing her application within the statutory timeframe demonstrates that she made a choice to place little urgency and importance on the timely making of her application.

[19] I have considered the delay as the period beyond the 21-day period. Regard has been had to the circumstances from the date the dismissal took effect. I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the whole period of the delay in lodging her application, or part thereof. This weighs against a finding of exceptional circumstances.

• [20] Action taken by the employee to contest the dismissal, other than lodging a general protections dismissal dispute, may favour granting an extension of time.[19] The Applicant did not take action to dispute her dismissal.

[21] It follows that it is not the case that the Respondent had been placed on notice of the Applicant's grievance regarding her employment ending in the probationary period. This factor therefore weighs against a finding of exceptional circumstances.

[22] When considering the factor of prejudice to the employer, the Commission considers whether the delay has caused the employer to suffer prejudice and whether the purported prejudice would not have been suffered had the application been made within 21 days of the dismissal taking effect.

• [23] In GHD Pty Ltd v Black, it was said that it is well accepted that a lengthy delay gives rise to a general presumption of prejudice.[20] In that case, the Full Bench held on appeal that a 168-day delay may impair the recollection or availability of witnesses and thereby give rise to a relevant prejudice.[21] The length of the delay in this matter is some 99 days. However, I am not content to adopt the general assumption that the delay period may impair the recollection and availability of witnesses in this case. The Respondent's submissions do not reflect that an extension would cause it prejudice. It refers to having evidence that is contemporaneous, consistent and corroborated by documents. I am therefore content to find that the factor is neutral in the circumstances, observing that the mere absence of prejudice is not a factor that would tell in favour of the grant of an extension of time.[22]

[24] The Act requires me to consider the merits of the application in considering whether to extend time. However, in Nulty, the Full Bench of the then Fair Work Australia considered the principles applicable to the extension of time discretion under s 366 of the Act. In that case, the Full Bench said in respect to the merits of an application:

[36] It ought be regarded as well established that on an extension of time hearing it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).

• [25] In Telstra-Network Technology Group v Kornicki, the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth).[23] In that case, the Full Bench said in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[24]

[26] In her application, the Applicant refers to having asked the Respondent when she would receive owed penalty amounts, when more staff would commence to assist with the workload, and how certain programs were running with no staff. Whilst not clearly articulated, it appears that the Applicant relies upon the making of enquiries as constituting the workplace right and that her dismissal was the adverse action.

[27] For its part, the Respondent submits that its materials demonstrate a clear and documented basis for a lawful probationary termination unrelated to any purported workplace right.

[28] There is evidently a factual dispute between the parties that is unable to be determined as this stage of the proceedings. It is therefore difficult to conclude that the substantive application is not without merit. I have therefore concluded that this factor is neutral.

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

[29] The criterion of 'fairness as between the person and other persons in a similar position', was considered by Deputy President Gostencnik, as he then was, in Morphett v Pearcedale Egg Farm, where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[25]

• [30] The Commission's consideration of the factor under s 366(2)(e) of the Act is concerned with the consistent application of principles in applications of this kind.[26] This ensures fairness as between an applicant and other persons in a similar position. However, applications for an extension of time generally turn on their own facts, and it follows that in the circumstances of this case, the consideration of fairness between the Applicant and persons in a similar position is a neutral consideration.

[31] The conclusion as to the existence of exceptional circumstances will turn on a consideration of all the relevant matters and the assignment of appropriate weight to each.

[32] 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, not satisfied that there are exceptional circumstances as contemplated by s 366(2) of the Act. Whilst appreciative that the Applicant has provided multiple reasons for the delay in making her application, these reasons are uncompelling in the context of the Act and the meaning attributed to 'exceptional circumstances' within that framework. The other factors I am obliged to consider do not lean towards a finding that the circumstances confronting the Applicant were exceptional. I am therefore unable to grant an extension of time, and the application must be dismissed.

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

[2] PR796464.

[3] [2019] FWCFB 2384.

[4] [2011] FWAFB 975.

[5] [2018] FWCFB 901 ('Stogiannidis').

[6] [2010] FWAFB 7251.

[7] Pottenger v Department of Caffeine [2018] FWC 3403, [31].

[8] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9].

[9] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

[11] Long v Keolis Downer [2018] FWCFB 4109, [40].

[12] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] ('Shaw').

[13] [2024] FWC 884, [19], citing Shaw (n 12), [15].

[15] [2015] FWCFB 3435.

[17] See Ballarat Truck Centre Pty Ltd v Kerr [2011[ FWAFB 5645, [15].

[18] Uhlhorn v P and J Mentiplay Investments Pty Ltd [2013] FWC 1353, [21].

[19] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300 ('Brodie-Hanns').

[20] [2023] FWCFB 38, [51] ('GHD'), citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556, and Brodie-Hanns (n 19) 299-300.

[23] (1997) 140 IR 1.

[25] [2015] FWC 8885, [29].

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