Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - extension of time - application dismissed.

• [1] This decision concerns an application made by Mr Mohammad Tapal (Applicant) on 28 June 2025 under s.365 of the Fair Work Act 2009 for the Commission to deal with a general protections dispute involving his dismissal by the Department of Parliamentary Services (Respondent).

• [2] Section 366(1) of the Act requires that a general protections application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).

• [3] The Applicant was engaged by the Respondent under a fixed term contract and his employment ended on 7 May 2025 upon the expiry of that contract. His general protections application was made 31 days outside the 21-day period prescribed by the Act and may only proceed if the Commission allows an extension of time.

• [4] The application was listed for hearing on 20 August 2025 to consider whether further time should be allowed for the application to be made. The Applicant appeared on his own behalf and Mr B Tutty appeared for the Respondent.

• [5] The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]

• [6] Section 366 of the Act provides:

(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.

• [7] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:

"[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."

• [8] The onus of establishing exceptional circumstances lies with the Applicant.

• [9] I will now deal with each of the provisions of s.366(2) of the Act.

• [10] The period of delay requiring explanation to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason supports a finding that there are exceptional circumstances.[3]

• [11] The Act does not specify what reason for the delay might weigh in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in assessing whether exceptional circumstances exist, while a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[4]

• [12] The Applicant explains that the delay was caused by a severe deterioration in his mental health following the sudden end of his employment . His submissions included:

1. That the end of his employment came as a shock because he had been given repeated verbal assurances from his supervisor that there was no reason why his contract would not be extended;
2. That reference checks had been conducted for a permanent recruitment process, creating a reasonable expectation of ongoing employment;
3. That the sudden termination compounded existing personal strain, including the breakdown of his engagement, leaving him in a state of emotional and financial distress; and
4. That the abrupt and public announcement on 7 May 2025 regarding the non-renewal of his contract caused significant humiliation.

• [13] In support of these claims, the Applicant submitted a letter from his medical practitioner, who confirmed that the Applicant had been treated for anxiety and depression since 2017. The letter stated that the loss of employment and personal issues exacerbated his condition, leaving him medically unfit to engage with any complex administrative or legal processes.

• [14] The Applicant also submitted a letter from a counsellor confirming that he and his partner had attended on three occasions to address relationship difficulties.

• [15] In addition, the Applicant provided witness statements from his sister and two friends, each of whom described observing the Applicant in a fragile mental state following what they referred to as his sudden or abrupt dismissal. His sister's statement further indicates that she flew in from overseas to assist him with daily activities, and to provide emotional and financial support.

• [16] I accept that the Applicant experienced genuine distress following the end of his employment. However, shock and emotional impacts experienced by a person after being dismissed are not unusual. The medical evidence provided by the Applicant does not demonstrate that he was incapacitated throughout the entire 31-day delay. While I accept the evidence from the Applicant's family and friends as sincere accounts of the emotional hardship he experienced, they do not constitute objective medical evidence of a level of incapacitation to such an extent that he was unable to make this application within the required timeframe.

• [17] For these reasons, I am not satisfied that an acceptable explanation has been provided for the Applicant's failure to file this application within the statutory timeframe.

• [18] This weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

• [19] There is no evidence the Applicant took any steps to dispute his dismissal other than the making of this application.

• [20] This weighs against a finding that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

• [21] Despite the relatively lengthy delay, I do not consider the Respondent would suffer any prejudice if an extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.

• [22] In Nulty v Blue Star Group Pty Ltd[5], the Full Bench said:

"It would appear that this factor, described in the Act as 'the merits of the application' is directed towards some elementary assessment of the potential prospects of the matter if the extension was granted and the matter proceeded to hearing and ultimately determination."

• [23] For the purpose of determining whether to grant an extension of time for the Applicant to file this application, the Commission 'should not embark on a detailed consideration of the substantive case.'[6]

• [24] It is uncontroversial in this matter that the Applicant's employment with the Respondent was subject to a fixed-term contract which commenced on 8 November 2023 and concluded on 7 November 2024. The contract was later extended for six months with a new end date of 7 May 2025.

• [25] The Respondent submits that the Applicant's employed ended at the expiry of the contract, and that he was not dismissed within the meaning of s.386 of the Act. The Respondent further submits that the Applicant's contract exhausted the maximum term under the Parliamentary Service Determination 2024 and could not be extended beyond 18 months.

• [26] The Respondent denies giving the Applicant any assurance of further employment, arguing that he had full knowledge of the end date which was documented in his employment contract, internal HR systems and on his building access pass. While the Applicant's supervisor agreed to make inquiries about a possible extension, no guarantee of ongoing employment was made. The Applicant was informed by 5 May 2025 that his contract would not be extended. Reference checks were conducted as part of a merit-based recruitment process but did not imply an offer or assurance of employment.

• [27] On the material before me, I am of the view that there is little merit in the Applicant's case.

• [28] The Applicant's assertion that the Respondent misled him into expecting continued employment is not supported by any documentary evidence.

• [29] The Applicant's employment concluded by operation of a fixed-term contract. In those circumstances, the Applicant appears to have limited prospects of establishing that he was dismissed within the meaning of the Act.

• [30] This weighs against a finding of exceptional circumstances.

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

• [31] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[7] considered this criterion and said 'cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.'[8]

• [32] Neither party raised any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.

• [33] The matters the Commission must take into account do not support a finding that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. On this basis, no further time is allowed for the application to proceed and the application is dismissed.

B Tutty for Department of Parliamentary Services.

[1] [2016] FWCFB 6963.

[2] [2011] FWAFB 975.

[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[5] [2011] FWAFB 975.

[6] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

[7] [2015] FWC 8885.

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