s.365 - General protections

Application under s 365 - whether to extend time - application dismissed

• [1] Luke Bartlett has made an application under s 365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by North Richmond Community Health Limited in contravention of Part 3-1 of the Act. Section 366(1) 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 Bartlett's dismissal occurred on 21 February 2025. The 21-day period ended on 14 March 2025. The application was lodged on 25 March 2025. For the application to proceed, Mr Bartlett 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 factors in s 366(2)(a) to (e).

• [2] As to the reason for the delay (s 366(2)(a)), Mr Bartlett submitted that he had filed an unfair dismissal application on 14 March 2025, within the 21-day timeframe. He said that on 20 March 2025, the registry of the Commission advised him that he did not appear to have met the minimum employment period for unfair dismissal applications, and that on the same day he discontinued that application and lodged a general protections application. This is not a good reason for the delay, nor is it exceptional. There is ample information on the Commission's website about filing applications in the Commission. Mr Bartlett said that the information is hard to understand. I reject this. It is difficult to imagine how the Commission could do more to make its processes accessible to the public. Mr Bartlett also said that he had mental health problems following his dismissal, for which he sought medical assistance, and that his poor state of mind and stress affected his ability to submit his claim within the 21-day period. I am not persuaded that this seriously impeded the timely lodgement of the application. I note that Mr Bartlett was able to lodge the unfair dismissal application within 21 days. I do not consider that these reasons, whether individually or together, provide an acceptable reason or reasons for the delay. The reasons for the delay weigh against an extension of time.

• [3] As to the other mandatory considerations, Mr Bartlett took other action to dispute the dismissal by lodging an unfair dismissal application (s 366(2)(b)) but I afford this little weight. I do not consider there to be any significant prejudice to the employer (s 366(2)(c)) and I do not consider that there are any matters that are relevant to fairness between Mr Bartlett and other persons in a like position (s 366(2)(e)). I consider these to be neutral factors.

• [4] As to the merits (s 366(2)(d)), Mr Bartlett contended that he was unlawfully and unfairly dismissed for raising safety concerns after he was attacked while working at a medically supervised injecting room. The respondent submitted that it dismissed Mr Bartlett for exacerbating a high-risk situation and failing to follow its policies and procedures. I accept Mr Bartlett's submission that this is not a frivolous case and that the application raises serious allegations, but so do many applications under s 365, and the respondent's stated reasons for dismissal are also serious ones. The merits of the application would depend on factual findings made by a court. I will regard the merits as a neutral consideration.

• [5] Mr Bartlett also contended that it would be fair to extend time and allow the merits of his case to proceed, but the Commission can only extend time if there are exceptional circumstances. He also said that the delay in lodging the application was only a small one but this too is of little relevance. Most applicants for extensions of time follow relatively small delays, and advance the contention that it would be fair to extend time. There is nothing exceptional in these contentions, or in this application more generally.

• [6] 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. Mr Bartlett's general protections application is dismissed.

H. Lesirge for North Richmond Community Health Limited

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