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[2026] FWC 1272
General information, not legal advice.
Fair Work Commission
2026-04-13
Original judgment source is linked above.
s.365 - General protections
General protections - extension of time - no exceptional circumstances - application dismissed
[1] The applicant has lodged a general protections dismissal application in the Commission under s 365 of the Fair Work Act 2009 (the Act).
[2] The applicant's employment with the respondent commenced on or about 28 October 2025. The applicant was employed in a position within the kitchen of a health care facility.
[3] The applicant was dismissed on 24 December 2025 with effect from that date. The applicant filed his general protections dismissal application on 25 February 2026.
[4] The application was lodged outside the 21-day period for the filing of a general protections dismissal application under s 366(1)(a). The 21-day period expired on 14 January 2026. The applicant's application was filed about 40 days outside the 21-day period.
[5] The Commission may allow an applicant a further period to file a general protections application under s 366(2). However, the Commission must first be satisfied that there are "exceptional circumstances" taking into account the following matters:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application;
(e) fairness as between the applicant and other persons in a like position.
[6] If the Commission is satisfied that there are exceptional circumstances, a discretion is enlivened for the Commission to extend time.
[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.
[9] The applicant has provided the Commission a number of documents in support of his application. The documents disclose that the respondent's asserted reason for the dismissal was performance issues during the applicant's probation period. In his application, the applicant asserts that he was dismissed for a reasons or reasons that he exercised workplace rights after he raised food safety concerns and reported an incident of verbal abuse by another staff member.
[10] As noted above, the applicant was dismissed on 24 December 2025 with the dismissal taking effect on that date.
[11] On 28 December 2025, the applicant sent his employer a relatively detailed email requesting a review by the respondent of how his probation period was managed and the circumstances that led to his dismissal. The email asserted, amongst other things, that his dismissal was because of his attempts to raise workplace and safety concerns and that he was not afforded procedural fairness or a genuine opportunity to improve during his probation. Attached to the applicant's email was a timeline of events.
[12] On 8 January 2026, 9 January 2026 and 23 January 2026 the applicant sent further emails to the respondent relating to his request for a review.
[13] On 9 January 2026, a people and culture manager of the respondent confirmed receipt of the timeline proposed a discussion.
[14] In the week commencing 19 January 2026, the applicant participated in a discussion with a people and culture manager of the respondent regarding the internal review.
[15] I now turn to consideration of whether I am satisfied that there are exceptional circumstances taking into the considerations under s 366(2).
[16] The applicant gives three reasons for the delay. Firstly, that he was attempting to resolve the matter internally. Secondly, in January 2026 he underwent surgery and was recovering during this period. Thirdly, that he was not aware of the 21-day period to file a general protections dismissal application.
[17] I am not satisfied that any of these matters constitute an adequate reason for the delay either on their own or in combination.
[18] As to the first reason, filing an application within the 21-day period can be done whilst an employee attempts to resolve a matter directly with the employer. Consequently, the fact that the applicant attempted to resolve the matter directly with the respondent is not an adequate explanation for the delay.
[19] As to the second reason, being the applicant's surgery in January 2026, the applicant has not indicated when such surgery occurred, the nature of the surgery, the duration of the recovery period or provided any detail (beyond bare assertion) how the surgery affected his ability to file his application. Even if the surgery occurred within the 21-day period, surgery in January 2026 would still have provided the applicant an opportunity to file his dismissal application within the 21-day period, noting the dismissal took effect on 24 December 2025. I am of this view even considering the dismissal occurred the day prior to Christmas day. In that regard, on 28 December 2025, the applicant sent a relatively detailed email to the respondent regarding his dismissal and requesting a review, including a timeline.
[20] In any event, it is clear that applicant sent the respondent emails making or relating to his request for internal review on 28 December 2025, 8 January 2026, 9 January 2026 and 23 January 2026. Furthermore, in the week commencing 19 January 2026, the applicant participated in a discussion with a people and culture manager the respondent relating to the request for internal review. These matters are inconsistent with the applicant having a medical condition within the 21-day period or shortly thereafter which founds an adequate reason for delay.
[21] As to the third reason, the applicant's unawareness of the 21-day time period does not constitute an adequate reason for the delay.
[22] The absence of an acceptable explanation for the delay weighs against the applicant.
[23] The applicant did take action to dispute the dismissal in direct communications with the respondent. As noted above, he sent his employer emails relating to his requested internal review on 28 December 2025, 8 January 2026, 9 January 2026 and 23 January 2026 and furthermore in the week commencing 19 January 2026 participated in a discussion with the human resources manager of the respondent regarding the internal review.
[24] The consideration weighs in favour of the applicant.
[25] The duration of the delay is in the order of 40 days. The delay is not such that the respondent would suffer any prejudice. Clearly, the respondent was on notice that the applicant challenged the dismissal as early as 28 December 2025 and evidently engaged in some gathering of information in connection with the applicant's request for a review.
[26] The absence of prejudice caused by delay is a neutral consideration.
[27] The applicant says that he raised concerns with the respondent regarding food safety and verbal abuse of another staff member. The applicant says that shortly thereafter he was told by the respondent that he needed to improve his performance. The material before me indicates that the respondent characterised the dismissal as a probation dismissal, evidently on performance grounds. The applicant says that he was dismissed because he made complaints or inquiries about safety and workplace conduct.
[28] There is clearly a conflict on the facts about the reason for the dismissal. It is not practicable for the Commission to make a detailed assessment of the merits at the preliminary stage when it is determining whether to grant an extension of time. Consequently, taking the applicant's case at the highest, I am prepared to assume that the application is not without merit.
[29] The merits consideration weighs in favour of an extension, but not significantly so.
Fairness as between the applicant and other persons in a like position
[30] The applicant says that the fairness consideration weighs in favour of the extension. In that regard, the applicant says that allowing an extension ensures employees who raise safety and compliance concerns in good faith are protected and are not discouraged from reporting workplace issues. The applicant says this supports fair treatment and confidence that workplace rights can be exercised without retaliation.
[31] The applicant's submission on this account is not relevant to the fairness consideration. The fairness consideration under s 366(2)(e) goes to circumstances such as where two or more employees are dismissed at the same time arising out the same circumstances and one or more of those employees file within the 21 days and one or more of those employees file outside the 21 days.
[32] Consequently, the applicant's submission is not relevant to the fairness consideration. In the present matter, I am not aware of any circumstance which relevantly goes to the fairness consideration.
[33] Therefore, I regard the fairness consideration as a neutral consideration.
[34] Having regard to the above consideration, I am not satisfied that there are exceptional circumstances which enliven my discretion to extend time under s 366(2).
[35] I am not satisfied that the matters in s 366(2)(a)-(e), either on their own or considered in combination, give rise to exceptional circumstances.
[36] Consequently, I decline to extend time pursuant to s 366(2).
[37] I order that the applicant's general protections dismissal application made under s 365 of the Act be dismissed.
Printed by authority of the Commonwealth Government Printer
(2018) 273 IR 156