s.365 - General protections

D.J Moller & K.P Moller & the Trustee for the DJ Moller Family Trust

Application made under s.365 - extension of time - application dismissed

• [1] Mr Mark Paul (Mr Paul) has made an application under s.365 of the Fair Work Act 2009 (the Act) in which he alleges that he was dismissed by D.J. Moller & K.P Moller & the Trustee for the DJ Moller Family Trust (Moller) in contravention of Part 3-1 of the Act. Section 366(1)(a) 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).

• [2] Mr Paul stated that he was verbally terminated by his employer on 12 October 2023 and that Moller confirmed his termination to WorkCover on 16 October 2023, but that Mr Paul was not made aware of this disclosure.[1] Mr Paul acknowledged that he resigned on 27 February 2024, although he claimed this was a constructive dismissal. Even if I accept the Mr Paul's evidence that this amounted to a forced resignation or a constructive dismissal, the 21-day period ended on Tuesday 19 March 2024 (see s.40A of the Act, and s.36 of the Acts Interpretation Act 1901 as in force on 25 June 2009). The application was lodged on 8 August 2025, 507 days late. For the application to proceed, Mr Paul 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 matters in s.366(2)(a)-(e).

• [3] As to the reason for the delay (s.366(2)(a)), Mr Paul said that he sustained an injury on 13 September 2023 and that his employer refused to lodge a WorkCover claim on his behalf, although Mr Paul later acknowledged that he could have made the claim himself. Mr Paul claimed he was verbally terminated by his employer on 12 October 2023 but that this termination was later retracted on 19 October 2023. Mr Paul said that, during this time, his housing, meat, fuel and electricity entitlements were cut and not reinstated. Mr Paul claimed he was medically incapacitated, the WorkCover Medical Assessment Tribunal formally assessing him as having a 7% permanent psychological impairment and an independent medical examiner assessing him as having a 15% permanent psychological impairment, and that this incapacity materially impaired his ability to manage legal processes at the time. These reports were not provided to the Commission.

• [4] Whilst Mr Paul claims he had mental health difficulties during the period of the delay, he also did not provide copies of any medical evidence to support this and further he demonstrated that he had the ability to attend to complex affairs during this time. On his own evidence, during the period of delay, Mr Paul:

• on 26 September 2023, lodged a WorkCover claim himself after his employer did not do so;
• on 11 and 26 October 2023, respectively, contacted the Fair Work Commission and JobWatch for advice;
• during the period from September to December 2023, sent repeated emails and texts to Moller seeking clarity;
• during the period from October 2023 to February 2024, disputed the Moller's proposed conditions and "return to work" rehabilitation plan;
• in 2025, lodged a complaint with the Queensland Ombudsman regarding WorkCover; and
• in 2025, wrote to Moller and offered to settle the dispute with Moller outside of the Fair Work Commission.

• [5] In considering all of the material before me, I do not accept that Mr Paul's impairment prevented or seriously impeded the possibility of timely lodgement of the F8 application form. The Commission is very accessible to the general public. All that is needed to file a claim is to complete the short, simple Form F8. This can be done quite easily by email, online or over the phone. In my assessment, the reasons for delay, noting the paucity of evidence to support the assertions made and the lengthy delay, weigh against a conclusion that there are exceptional circumstances in this case.

• [6] I am satisfied that the Mr Paul was aware of his employment ending on 27 February 2024.[2] I find that this is a neutral consideration pursuant to s.366(2)(b).

• [7] I accept that Mr Paul took other action to dispute the dismissal, including by taking the actions described in paragraph [4] and by following up with his employer and WorkCover (s 366(2)(b)). This weighs marginally in favour of an extension.

• [8] Mr Paul argued there is minimal prejudice to Moller given how long Moller has been aware that the Mr Paul's termination was disputed. I consider there is a slight prejudice to the employer associated with the lengthy delay in this case (s..366(2)(c)). I consider this weighs against an extension.

• [9] I do not consider that there are any matters that are relevant to fairness between Mr Paul and other persons in a like position (s.366(2)(e)). I consider this to be a neutral factor.

• [10] As to the merits (s.366(2)(d)), Mr Paul's substantive application contended that he was dismissed as a consequence of his WorkCover claim albeit unclear what he was alleging. I consider that Mr Paul may have an arguable case; however, a more detailed assessment is not possible given the limited information before me. The merits of the matter would also depend on findings made by a court after hearing the evidence. I regard the merits as a neutral consideration.

• [11] 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. There is no basis for the Commission to extend time. The application is dismissed.

[1] Digital Court Book (DCB) p.5. See also DCB p.10.

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