s.365 - General protections

Application to deal with contraventions involving dismissal - no exceptional circumstances - application dismissed

• [1] Ms Melissa Naylor (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 28 August 2025. The Applicant claims her employment was terminated by Murrin Murrin Operations Pty Ltd (the Respondent) in breach of s.352 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Applicant was dismissed effective from 18 June 2025. The Application was lodged 50 days outside of the 21-day statutory timeframe prescribed under s.366(1)(a) of the Act. The Application can only be accepted if the Commission allows an extension of time, taking into the factors in s.366(2) which I have considered below.

• [3] With the parties' consent, I have determined the application for an extension of time on the papers.

Should an extension of time be granted under s.366(2) of the Act?

• [4] Section 366 of the Act provides when a further period may be granted to accept a late application.

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(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.

• [5] There must be exceptional circumstances in order to be granted a further period to lodge this application. In summary, exceptional circumstances are:

• Out of the ordinary course, unusual, special or uncommon. It does not need to be unique, unprecedented or vary rare.

• • It can be 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. [1]

Section 366(2)(a) - Reason for delay

• [6] The Applicant provided three reasons for the delay: she initially was confused and filed the wrong form, her sister was not available to assist her in lodging the correct form until 28 August 2025, and she experienced "significant psychological distress, exhaustion, and uncertainty about the process".

• [7] I have informed myself of the filing dates of the previous applications filed by the Applicant. On 8 July 2025 at 1:44 pm, the Applicant filed an unfair dismissal application. The same day on 8 July 2025 at 5:01pm, the Applicant filed a general protections application involving dismissal.

• [8] On 11 August 2025, the Applicant states that she was informed that both files had been "administratively closed" prior to being served on the Respondent. The Applicant's evidence on the reason why the files were closed is not clear. The file note of the Commission's staff member who closed the file is even less clear.

• [9] On 11 August 2025, after being informed that her applications had been "administratively closed", the Applicant contacted her sister, who was assisting her through the process. However, the Applicant's sister was not available to assist until 28 August 2025, due to the Applicant's sister's work and study commitments. On 28 August 2025, the Applicant's sister assisted the Applicant in lodging this application.

• [10] The Commission's case managers should not unilaterally close files, if that is indeed what happened. It seems more likely that the Applicant was advised over the phone to discontinue her applications due to the application of s.725. The Applicant claims she was "advised" to relodge a general protections application and "explain that the mix-up was due to form confusion and mental health reasons". This claim by the Applicant is particularly concerning, as the Commission's staff should not provide legal advice. However, even if the applications had remained open and had not been "administratively closed", as the Applicant claims, it likely would not have made a difference. The general protections application which the Applicant lodged on 8 July 2025 at 5:01pm would have been jurisdictionally barred by ss.725 and 729 of the Act. Further, the Applicant was not eligible to bring an unfair dismissal claim, so the earlier application would have also failed. In all likelihood, the Applicant would have ended up in the same position of lodging a late application.

• [11] It is quite common for applicants to lodge an unfair dismissal application instead of a general protections application, or vice versa. It is well accepted that ignorance of the law does not constitute an exceptional circumstance. Confusion about which form to lodge and not understanding the effect of s.725 of the Act does not constitute an exceptional circumstance.

• [12] Even if I were inclined to accept that the Applicant had an acceptable explanation for the delay up until 11 August 2025, there was a further period of delay of 17 days.

• [13] The Applicant explains that this delay was because her sister was not available to assist her. The Applicant provided a witness statement from her sister attesting to this. The Applicant is, of course, free to be assisted by her sister when lodging an application. But this does not mean that the unavailability of the Applicant's sister constitutes an exceptional circumstance. The Form F8 is a relatively simple form. It can be completed online. Minimal details are required in order to lodge a valid form. I do not accept that the Applicant was required to wait until her sister was available to assist.

• [14] In relation to the Applicant's claim regarding psychological distress, I note no medical evidence has been provided. There is no evidence before me to substantiate that the Applicant had a mental health condition which prevented her from lodging an application within time.

• [15] The Applicant has not provided an acceptable reason for the delay. This weighs against an extension of time. The Applicant's stated reasons for the delay do not amount to exceptional circumstances, either collectively or individually.

Section 366(2)(b) - Any action taken by the person to dispute the dismissal

• [16] I note the Applicant lodged two prior applications in the Commission. The Respondent notes that these applications were not served on the Respondent before the files were closed. The Respondent was therefore not on notice that the Applicant was disputing her dismissal.

• [17] Delay in service of the previous applications notwithstanding, I consider that the Applicant's previous applications weigh marginally in favour of granting an extension of time.

Section 366(2)(c) - Prejudice to the employer (including prejudice caused by the delay)

• [18] The Applicant submitted that the delay in filing was minimal and that there is no prejudice to the employer.

• [19] A delay of 50 days is not minimal. Further, the Respondent was not aware that the Applicant had lodged this application until 3 September 2025. There is a potential for prejudice to the Respondent.

• [20] That being said, the Respondent does not make any specific submissions as to how it has been prejudiced. I consider this to be a neutral factor.

Section 366(2)(d) - Merits of the application

• [21] It is not appropriate to embark on a detailed exploration of the merits of the matter when considering whether to grant an extension of time.

• [22] In Kornicki v Telstra-Network Technology Group,[2] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"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."

• [23] On the material before me, I am satisfied that the application is not without merit. I find this to be a neutral factor in this application.

Section 366(2)(e) - Fairness as between the person and other persons in a like position

• [24] The Applicant did not explain why not granting an extension of time would create unfairness between herself and others in a like position. I note it is common for applicants to file the "wrong application" and then seek an extension of time. In many cases, requests for an extension of time on that basis are denied.[3]

• [25] Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. Accordingly, the extension of time is not granted and the application is dismissed.

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

[2] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[3] See for example recent decisions of Ng v Laing O'Rourke Australia Construction Pty Ltd [2025] FWC 2030, upheld in [2025] FWCFB 220, _Lyttle v Eva Copper Mine Pty Lt_d [2025] FWC 3333 and Bereket v Brighte Capital Pty Ltd [2025] FWC 3231

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