s.365 - General protections

Lifestyle Solutions (Aust) Ltd Trading AS Lifestyle Solutions, Samantha Trewick

General protections application involving dismissal filed out of time - circumstances not exceptional - application dismissed.

[1] On 7 January 2026 Mr McGee made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth). Mr McGee claims that he was dismissed from his employment with Lifestyle Solutions and that the dismissal contravened the general protection provisions of the Act.

[2] Section 366(1) requires that general protection claims be lodged within 21 days after a dismissal takes effect. Mr McGee's dismissal took effect on 26 September 2025 and therefore his application should have been made by no later 11:59pm on 17 October 2025. Mr McGee's application was therefore made 82 days late.

[3] Section 366(2) gives the Fair Work Commission a discretion to allow Mr McGee an extension of time to lodge his general protections claim, but only if there are exceptional circumstances.

[4] Mr McGee's dismissal was characterised at the time as a redundancy.

[5] Early in the proceeding I expressed my preliminary view that Mr McGee's application for an extension of time had no reasonable prospects of success. Mr McGee was invited to discontinue his application but chose not to do so. On 12 February 2026 Mr McGee was sent an email that included the following:

"The Commission can only grant an extension of time if there were exceptional circumstances. Exceptional circumstances are circumstances that are not regularly, routinely or normally encountered. Exceptional circumstances may be a single exceptional event or a series of events that together are exceptional. There is more information on the Fair Work Commission's website about extensions of time for lodging an application under s.365.

The Deputy President has observed that in your application:

• - you stated that the reason for your delay in filing is that you were not aware that your redundancy was non-genuine until after the 21-day period had expired. You appear to allege that the real reason for your dismissal was your conduct that resulted in a young person being left unsupervised - which is not a workplace right. If this is the "true reason for [your] dismissal" then your general protections claim is unlikely to succeed;

• - in your application you also allege that you were dismissed/selected for redundancy because of your age and because you "exercised [your] workplace rights to enforce safety standards and manage non-compliant staff." The letter you received on 21 November 2025 does not reveal any new information in relation to such matters and is not likely to establish any exceptional circumstances that could give the Commission power to grant you an extension of time to file your application;

• - Your claim seeks compensation arising from lost income in your next employment because the Respondent reported conduct to Residential Care Worker Register which (the respondent claims) it was required to do. Even if you are entitled to compensation because of the Respondent's notification, it is highly improbable that your general protections application is the vehicle to recover such monies;"

[6] For the reasons set out below I find that there are no exceptional circumstances that could allow me to make an order to grant Mr McGee an extension of time.

Section 366 - Exceptional Circumstances

[7] Section 366 the Fair Work Act 2009 ("the FW Act") is in the following terms:

(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.

[8] The exceptional circumstances requirement in s.366(2) sets a 'high hurdle' for applicants to overcome. Exceptional circumstances for general protection claims filed after the 21-day time limit are circumstances that are out of the ordinary course, unusual, special or uncommon.

[9] I have considered all the material provided by Mr McGee in support of his argument that there were exceptional circumstances and that he should be granted an extension of time to file his application.

[10] This material can be summarised as follows:

(a) Mr McGee was delayed in filing his application because, on his assertion, Lifestyle Solutions did not inform him of the true reason for his dismissal, being 'serious misconduct', until 21 November 2025 when Lifestyle Solutions issued him with an investigation outcome letter;

(b) this deception is the "exceptional circumstance" because it is unjust to strictly enforce a 21-day limit when the employer has actively misled the employee about the nature of the dismissal during that period;

(c) the redundancy in September 2025 was therefore a "sham" redundancy that hid the true motive which, he said, was "prohibited adverse action based on age and industrial activity (union dispute notified in June 2024)";

(d) upon receiving the investigation outcome letter in November, Mr McGee immediately queried the nature of his dismissal with Lifestyle Solutions;

(e) there has been no prejudice to the employer due to the recency of the events;

(f) it would be in the public interest to allow Mr McGee's application to be filed out of time; and

(g) during the 21-day period immediately post Mr McGee's termination, in and around September and October 2025, Mr McGee was suffering distress as a result of the death of a close family member.

[11] Mr McGee's written submissions concluded as follows:

"I was prevented from filing within 21 days because the Respondent actively misled me into believing my dismissal was a lawful, non-disciplinary administrative action. It would be unjust to allow an employer to escape liability by successfully concealing their true motive until the statutory deadline has passed."

[12] Each of the matters in section 366(2) must be taken into account where relevant. In summary:

(a) the Commission is unlikely to find that exceptional circumstances exist if an applicant does not have a credible explanation for the delay (s.366(2)(a)). The test invariably applied is whether an applicant has a 'credible or reasonable' explanation for the delay and whether the reasons for the delay point towards there being exceptional circumstances;

(b) sometimes an applicant's medical condition can be so significant that it effects their mental capacity to prepare and file an application. Stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. A depressive illness might point towards exceptional circumstance if the illness had a material impact upon an applicant's capacity to lodge the application within the statutory time limit. Mr McGee's evidence should positively demonstrate that their depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (s.366(2)(a));

(c) the mere absence of prejudice to the employer caused by a short delay is not generally a factor that would point in favour the existence of exceptional circumstances (s.366(2)(c));

(d) the Commission is not required to, and does not, conduct a full inquiry into the merits to satisfy s.366(2)(d). There are sound reasons why the Commission does not do so - most notably because parties should not have to present their evidentiary case twice. In this context members it is sufficient for the Commission to make a preliminary assessment about whether there is any merit to the application;

(e) in certain circumstances there may be people in a "similar position" to Mr McGee, such as other employees dismissed by the same employer at the same time. Under s.366(2)(e) the Commission can consider factors beyond the immediate circumstances of the parties to ensure that there is fairness in the treatment of Mr McGee's claim compared to the claims of others in a similar position.

[13] None of the material filed by Mr McGee resolved the concerns raised in the email on 12 February 2026 (see [5] above).

[14] The fundamental flaw in Mr McGee's argument is that the information received in November has no plausible connection to the claimed contravention of the general protection provisions in September.

[15] It is quite obvious that the letter was sent to Mr McGee in November 2025 to advise him that Lifestyle Solutions had lodged a notification with the Residential Care Worker Register about formal misconduct findings it had made. As stated in the letter, the relevant incidents occurred in March 2025, Mr McGee was notified of the allegations on 1 April 2025, and an allegations meeting took place with Mr McGee on 16 April 2025.

[16] Mr McGee described this process as a "witch hunt". If this witch hunt had some plausible connection to Mr McGee's age or union activity then Mr McGee would have known in September 2025 what that connection was. The letter in November 2025 advising Mr McGee that the matter was now closed does not reveal any sham redundancy, let alone a sham redundancy because of Mr McGee's age or union activity a year before.

[17] Even if I were to accept that the letter received in November 2025 revealed a previous deception by Lifestyle Solutions as to the true reason for dismissal, Mr McGee did not make his application until six weeks later. Measured against the 21-day time limit, there is no credible or reasonable explanation provided for the delay in the period between 21 November 2025 and 7 January 2026 when the claim was eventually filed.

[18] I find that Mr McGee has not provided a credible and reasonable explanation for the whole period of the delay. The stated reasons for delay point against a finding that there were exceptional circumstances.

[19] In my view the following matters are neutral considerations:

(a) Mr McGee was notified of the dismissal on the same day that it took effect, and therefore had the benefit of the full 21-day period to lodge an application;

(b) there is no evidence of prejudice to the employer; and

(c) I am not aware of any persons or cases that are relevant to the question of fairness as between Mr McGee and other persons.

[20] In this case none of the above matters considered individually point towards there being any exceptional circumstances. After reviewing the matters collectively, I am still not satisfied that there are exceptional circumstances.

[21] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time to make Mr McGee's application. I make the following order:

1. The general protections application made by Mr McGee on 7 January 2026 is dismissed.

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