s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

• [1] This decision arises from an Application to the Fair Work Commission (the Commission) by Miss Angela Corlett (the Applicant) for an extension of time for the lodgement of an application for a general protections remedy (the Application), pursuant to s.365 of the Fair Work Act 2009 (the Act).

• [2] The Applicant was notified of her dismissal from employment with Data3 Pty Ltd (the Respondent) on 15 December 2017, with her last day being 2 January 2018 with payment in lieu between 15 December 2017 and 2 January 2018.

• [3] Upon the assumption that the date of dismissal was 2 January 2018, an application should have been made by 23 January 2018. The Application was lodged on 10 August 2025 and was 2,756 days out of time.

• [4] The Act allows the Commission to extend the period within which a general protections application must 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]

• [5] 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.

• [6] 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 similar position.

• [7] 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 consider these matters in the context of the Application.

• [8] The Respondent is a labour hire company. It engaged Ms Corlett to perform services for its customer, Insurance & Care NSW (iCare), in the role of Business Architect / Senior Portfolio Consultant. The engagement occurred under the NSW Government Contingent Workforce Prequalification Scheme.

• [9] There were two relevant periods of engagement. The first was pursuant to a casual employment agreement dated 23 December 2016, under which Ms Corlett was employed between 9 January 2017 and 30 June 2017. The second was pursuant to a further casual employment agreement dated 30 July 2017, under which she was employed between 1 July 2017 and 2 January 2018. These were fixed-term arrangements.

• [10] During the course of the first engagement, Ms Corlett worked in an iCare team under a manager who subsequently resigned. She says that she worked very long hours, that she was refused permission to attend medical appointments, and that her role and responsibilities were not clearly defined. She further says that there was dissatisfaction within iCare about the level of commission the Respondent was charging in relation to her engagement, and that this damaged her standing.

• [11] In mid-2017, through her own efforts, Ms Corlett secured a role in a different iCare team under a new manager. She says that in June 2017 she negotiated an eight-month contract and a pay increase with the new manager directly, which she understood would extend her engagement to March 2018.

• [12] There is an issue between the parties as to the effect of those dealings. The Respondent's evidence, through Mr Bonner, is that notwithstanding any expectations Ms Corlett may have had as to an eight-month engagement, the contractual arrangements between The Respondent and Ms Corlett remained fixed term and concluded on 2 January 2018. Ms Corlett's case is that she believed, and was led to believe, that she had a contractual entitlement to work (and be paid) until March 2018.

• [13] It is not necessary for present purposes to resolve that dispute. It is sufficient to note that, on any view, Ms Corlett last performed work for iCare (through the Respondent) on 15 December 2017 and was paid wages up to 2 January 2018, being the nominated end of the fixed term.

• [14] Ms Corlett submitted that there has been a delay in submitting the Application because she was not provided with a copy of her contract despite repeated requests since July 2017, and because she has been "deemed medically unfit to work due to an injury". She says that this injury led to Supreme Court proceedings, during which a tutor was appointed to assist her due to incapacity, and that the tutor "is still in place". She further says she was advised the matter could be dealt with under consumer law at a later date within a 6-year limitation period.

• [15] Before turning to the specific s 366(2) factors, it is convenient to say something about the length of the delay.

• [16] The Application was lodged on 10 August 2025, 2,756 days after the expiry of the 21-day limitation period. On any view, the delay is extremely substantial.

• [17] The length of the delay is not, of itself, a listed factor in s 366(2), but it is relevant both to the weight to be given to the listed factors (particularly the reason for the delay and prejudice) and to the overall judgment as to whether circumstances are exceptional. A delay of this magnitude calls for a compelling and comprehensive explanation covering the entire period.

• [18] The first factor concerns the reason for the delay. It is necessary to identify the explanation advanced by the Applicant, to assess whether it is supported by evidence, and to consider whether, if accepted, it demonstrates that the failure to comply with the 21-day period was due to circumstances that can properly be characterised as exceptional.

• [19] As already noted, Ms Corlett relies on two broad matters:

(a) difficulties in obtaining a copy of her contract, and

(b) her asserted medical unfitness arising from an injury, including the appointment of a tutor in Supreme Court proceedings.

She also refers to legal advice to the effect that her concerns might be dealt with under consumer law at a later time.

• [20] In relation to the contract, Ms Corlett says that she repeatedly requested a copy from the Respondent but was refused. She says she was required to sign the contract online and was not provided with a copy, and that she did not receive documentation clearly setting out the true end date of her engagement or her rate of pay. Even if that evidence is accepted, it does not explain why an application under s.365 could not have been made within 21 days of the cessation of her employment, or within a relatively proximate period thereafter.

• [21] As to medical unfitness, the material before me is sparse. There is no medical report or certificate in evidence. There is no chronology of diagnosis, treatment or incapacity. The assertion that she has been "deemed medically unfit to work due to an injury" appears in her narrative statement without elaboration. The reference to the appointment of a tutor in Supreme Court proceedings indicates that at some point she may have lacked capacity to conduct those proceedings unaided, but there is no evidence as to when the tutor was appointed, the nature of the incapacity, whether it was continuous, or whether it prevented her from taking steps to lodge an application in this Commission at any time during the years that followed.

• [22] The Respondent submits that Ms Corlett was afforded an opportunity, by directions of the Commission, to file material specifically addressing the s 366(2) factors, and that she has not done so. It submits that, in those circumstances, the Commission should not assume facts favourable to her in the absence of evidence and should find that there is effectively no cogent explanation for a delay measured in years.

• [23] I accept that medical conditions can, in appropriate cases, constitute an explanation for delay and contribute to a finding of exceptional circumstances. However, what is required is evidence capable of demonstrating that the illness or injury was of such a nature, and had such an effect, that it prevented the Applicant from lodging an application or instructing another to do so during the relevant period. In the present case, the explanation is stated in the most general terms and is unsupported by medical evidence. It does not grapple with the entirety of the period from early 2018 to August 2025.

• [24] I do not accept that the Applicant's medical conditions could possibly justify a delay in filing the Application. I refer to the decision of the Full Bench in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287, where at para [15], the majority (Watson VP and Smith DP) observed:

'[15] After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person's life, and such effects are unfortunately not unusual.'

• [25] If a Tutor was in place to advance proceedings elsewhere, it remains unexplained why the Tutor could not advance the proceedings the subject of this Application.

• [26] The reference to legal advice that the matter could be pursued under consumer law at a later time does not assist, because the Applicant did not comply with the six year limitation period for such application. Ignorance of, or confusion about, the appropriate jurisdiction or cause of action does not ordinarily amount to an exceptional circumstance. Nor does reliance on legal advice that does not relate to the Commission's strict time requirements.

• [27] The absence of an acceptable reason for the extreme delay weighs heavily against the Applicant.

Action taken to dispute the dismissal - s 366(2)(b)

• [28] The second factor concerns any action taken by the applicant to dispute the dismissal. The focus is on steps taken to challenge the termination of employment or to pursue related rights, particularly in the period shortly after dismissal.

• [29] Ms Corlett's material demonstrates that she made repeated complaints to the Respondent in 2017 and January 2018 about her rate of pay, her contract dates, and the Respondent's responsiveness. She corresponded with Mr Stephen Hancock (a The Respondent consultant) and escalated matters to the Chief Executive Officer, Mr Laurence Baynham. She also raised concerns within iCare, including with the Chief Actuary.

• [30] Those actions, however, occurred during her engagement or shortly thereafter, and were directed to attempting to resolve contractual and payment issues and to secure further work. They do not amount to steps taken to dispute a dismissal in the Commission or another tribunal, or to seek remedies of the kind available under Part 3-1.

• [31] There is no evidence that, in the months or years after her employment ceased, Ms Corlett lodged any complaint with a regulator, union or other body concerning an alleged general protections contravention arising from her dismissal, or that she attempted to commence proceedings in another forum in reliance on substantially the same alleged contraventions. Nor is there evidence of contemporaneous legal advice about the availability of a general protections jurisdiction in the Commission.

• [32] In those circumstances, I consider that the second factor also weighs against an extension. While Ms Corlett did pursue various grievances in 2017 and early 2018, there is no indication that she took any action to dispute the dismissal itself in a timely way.

• [33] The Respondent submits that the passage of more than seven years since the end of Ms Corlett's engagement is inherently prejudicial, in that recollections of the relevant events are likely to have faded, personnel may have moved on, and documents may no longer be available or readily retrievable. It further points out that its evidence for the present hearing is confined to the statement of Mr Bonner, prepared from a review of its records.

• [34] There is no direct evidence from the Respondent identifying particular witnesses who are now unavailable or particular records that have been lost. However, the Commission is entitled to have regard to the obvious consequences of a delay of this magnitude. The events in question occurred in 2017 and 2018. The workplace context at iCare and the Respondent has likely altered in the intervening years. The practical ability of the Respondent to respond to, and defend a detailed general protections claim concerning events so far in the past is likely to be significantly impaired.

• [35] I am satisfied that the delay has caused real prejudice to the Respondent in the sense contemplated by s 366(2)(c). This factor weighs against granting an extension.

• [36] This is a general protections claim. I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

"It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues."

• [37] In the matter of Kornicki v Telstra-Network Technology Group[3] a predecessor of the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive application. 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."[4]

• [38] I adopt this reasoning of the Full Bench of the former Commission in relation to the consideration of merits. I consider that this is a neutral factor.

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

• [39] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [40] As is evident from the analysis above, the matters that were the subject of submission, consideration and apportionment of any significant weight, being the absence of any acceptable reason for delay, failure to dispute the dismissal and prejudice to the employer, weigh heavily in favour of a conclusion there are not exceptional circumstances. None of the factors weigh against such a conclusion.

• [41] Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together.

• [42] 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). Accordingly, the Application must be dismissed.

Mr K Pierce of Counsel, on behalf of the Applicant.

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

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

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