s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - application made outside of 21-day time limit - no exceptional circumstances - application dismissed.

[1] On the 15 January 2026, Mr Luke Maumil (the Applicant) lodged an application (the Application) pursuant to s. 365 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment on 19 December 2025 by Empower YOUth OoHC Services (the Respondent) contravened his workplace rights. The Respondent filed its Form F8A response on 22 January 2026 objecting to the application on the basis that it had been filed outside the statutory 21-day filing period.

[2] Section 366(1) of the Act states that a general protections dismissal dispute application must be made 'within 21 days after the dismissal took effect', or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 366(2) of the Act. The period of 21 days ended at midnight on 9 January 2026. The Application was therefore filed 6 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s 366(2) of the Act.

[3] Following allocation of the matter to my Chambers on 19 January 2026, I reviewed the Form F8 filed by the Applicant , the F8A filed by the Respondent and decided it was appropriate to determine the matter on the papers.

[4] Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute if an application is made under s 365. For an application to be validly made under section 365, it (the application) must be made within 21 days after the dismissal took effect or such further period as the Commission allows pursuant to section 366 of the Act.

• [5] The Act allows the Commission to extend the period within which a general protections dismissal dispute application can 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]

[6] 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.

[7] 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 like position.

[8] 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 turn to consider these matters in the context of the Application.

• [9] For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 9 January 2026. The delay is the period commencing immediately after that time until 15 January 2026, although circumstances arising prior to that day may be relevant to the reason for the delay.[3]

• [10] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4] An applicant does not need to provide a reason for the entire period of the delay although 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. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[5].

[11] The Applicant submits that following his dismissal he was attempting to resolve the matter directly with his employer with union assistance. He claims the union attempted to contact the Respondent on 23 December 2025, which he says was unsuccessful, alleging that the Respondent has been avoiding engagement. He claims this lack of engagement by the Respondent contributed to delay and uncertainty. The Applicant then filed an unfair dismissal application (U2026/289) on 7 January 2026 (the First Application). He subsequently filed a general protections dismissal dispute application (C2026/248) on 8 January 2026 (the Second Application). The Applicant claims he was unaware of the s 725 provisions of the Act at the time of filing his First and Second Applications.

[12] The Applicant subsequently withdrew the First and Second Applications on 15 January 2026 during a telephone conversation with a staff member of the Commission and then filed the current Application on 15 January 2026. The Applicant submits that by these actions he has been diligent in pursuing his grievance over his dismissal and that the late filing of the Application is explained by the Respondent's lack of engagement and by his error in filing concurrent applications. The Applicant also refers to his self-represented status and that he relied on advice that later provided to be incorrect about the interaction between unfair dismissal and general protections applications under section 725 of the Fair Work Act.

[13] The Respondent denies there was a lack of engagement with the Applicant or Union representative following the dismissal on 19 December 2025. The Respondent refers to correspondence with the Applicant as well as correspondence sent to the union on 23 December 2025 and a telephone conversation with a union representative on 6 January 2026. The Respondent also contends that the Applicant was simply engaged in forum shopping by filing multiple applications, that he was aware of the 21-day filing requirement and had union assistance.

[14] I note at this point that the Applicant commenced employment with the Respondent on 30 May 2025 and at the time of his dismissal was employed for a period of over 6 months. The Respondent submits that it is a small business with less than 15 employees. If that is correct, it would mean that the Applicant's First Application would have been futile as the Applicant would not have met the 12-month minimum employment period (MEP) that applies to 'small businesses' in respect of unfair dismissal applications.

[15] It is clear that the Applicant was aware that his dismissal took effect on 19 December 2025, that he was aggrieved at the dismissal, he was aware of the 21-day filing period and that he had the assistance of a union. Despite these factors, he did not file the First Application until 7 January 2026, some 19 days after his dismissal took effect. He explains this as being due to attempts to resolve the matter directly with the Respondent. That he chose to pursue that course, while understandable, was a deliberate choice he made. I am not satisfied that his decision to pursue the matter directly with the Respondent adequately explains the filing delay. It ought to have been apparent to the Applicant, well before the 21-day filing period passed, that the matter was unlikely to be resolved directly with the Respondent.

[16] That the Applicant allowed 19 days to pass before filing the First Application and then the Second Application on the 20th day after dismissal, meant he had little time to remedy the concurrent application (s 725) difficulty he was confronted with in the case of the Second Application. In delaying the filing of the First and Second Applications, the Applicant was the architect of his own misfortune as by the time he became aware of the s 725 barrier to the Second Application, upon which re withdrew both the First and Second Application, the 21-day period had elapsed. The filing of concurrent applications is not 'out of the ordinary course, unusual, special, or uncommon'. It is in fact a routine occurrence; hence the concurrent application information provided on the Commission's website and in the F8 Application Form, along with information on the 21-day filing requirement and concurrent applications issue. The Applicant in completing his various applications was put on notice about both issues.

[17] Finally, the Applicant's self-represented status is not an exceptional circumstances as a significant proportion of dismissal related applications involve self-represented parties. The prevalence of self-represented parties in matters before the Commission is one reason why so much information (in plain English) is provided on the Commission's website to assist parties. As to incorrect advice claimed to have been received by the Applicant, he has not identified what that advice was, who it was received from and when he became aware that the advice was erroneous. Neither of these points assist the Applicant in the circumstances.

[18] It follows from the foregoing that I am not satisfied that the Applicant has provided an acceptable explanation for the delay in filing the Application. This weighs strongly against a finding of exceptional circumstances.

[19] The Applicant claims that he was attempting to resolve the matter of his dismissal and entitlements outside of the Commission before filing the First Application on 7 January 2026 and the Second Application on 8 January 2026. By those steps I accept that he took action to dispute the dismissal prior to filing the Application. This weighs in favour of a finding there are exceptional circumstances.

[20] The Application was filed 6 days outside of the 21-day period. I find in the circumstances; there would be no prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.

[21] As to the merits of the application, the Applicant contends that he was dismissed shortly after raising concerns about underpayment of wages, non-compliance with his contract and his incorrect classification under the relevant award. The Respondent denies these contentions and submits the Applicant was dismissed for substantiated gross misconduct of sexual harassment and making discriminatory comments, conduct to which there are four alleged witnesses.

[22] It is inappropriate to express a concluded view about the merits of an application of this type. Nor is it possible to thoroughly test the disputed claims. In any event, in applications under s.365, the Commission's function at this stage of an application is to convene a conference, not determine the merits. It is sufficient for present purposes to note that on the material available to me, the Applicant has an arguable case as to a contravention of the general protections provisions of the Act and that the Respondent has raised a prima facie defence. I consider the merits to be a neutral consideration.

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

[23] The Applicant submits that denying his access to the general protections jurisdiction of the Commission in the circumstances he faced would disadvantage employees who act in good faith, seek early resolution, and encounter procedural issues or employer non-engagement. He further argues that granting an extension would promote consistency and fairness for employees who have taken reasonable and timely steps to dispute a dismissal.

[24] 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. That is the case in the Applicant's particular circumstances. As described above, he had assistance from a union and made a conscious choice to delay filing his applications. The timing of his applications limited his ability to deal with the concurrent application barrier under s 725 of the Act, of which he would have been on notice of in completing the First and Second Applications. I therefore find in the circumstance that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

[25] Having regard to the matters I am required to take into account under s 366(2) of the Act, and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. In reaching this decision I have given particular weight to the lack of an adequate explanation for the filing delay.

Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2) of the Act. Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.

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

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

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

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