s.365 - General protections

Application to deal with contraventions involving dismissal - 37 days out of time - no exceptional circumstances - application dismissed

• [1] Mr Mostafa Aghabozorgi Nafchi (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 10 September 2025. The Applicant claims his employment was terminated Metecno Pty Ltd (the Respondent) in breach of s.340, 341, 343, 351 and 352 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Applicant was dismissed effective from 13 July 2025. The 21-day period following the effective date of dismissal ended on 4 August 2025 (taking into account that 3 August 2025 was a Sunday). The Application was lodged 37 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 proffered the following reasons for delay:

• severe stress, anxiety and emotional distress
• financial pressure
• ignorance of the 21-day time limit

• [7] The Applicant describes being bed bound following his dismissal and experiencing a burning sensation. The Applicant was advised by my Chambers that he needed to provide medical documentation, as well as evidence of his actions taken to dispute the dismissal by contacting the United Workers Union, JobWatch, the Fair Work Ombudsman. The Applicant did not provide any of the requested evidence. On 7 November 2025, he claimed that he would require additional time to provide the evidence as he had seen three different doctors at a medical clinic and would need time to confirm the details with each doctor. To date, the Applicant has not produced any of the requested medical evidence.

• [8] As the Applicant has not produced medical evidence, I cannot be satisfied that he had a medical condition which prevented him lodging the claim within time. I note that a 37-day delay is a significant delay.

• [9] Regarding the Applicant's claim of financial pressure, the Applicant stated that this pressure affected his mental wellbeing and his ability to make decisions. Again, there is no documentary evidence. Further, while I accept that the Applicant may have been preoccupied with other matters as a result of the financial pressure following his dismissal, there is no evidence to explain how his resulted in a delay of 37 days. I understand from the Applicant's Form F8 that he was caring for his newborn child following his dismissal. The pressure to provide for his family is understandable, but it does not give rise to an exceptional circumstance. It is common for employees who have been dismissed to face financial pressures.

• [10] The Applicant stated that he was not aware of the strict 21-day time limit. He stated, "Coming from Iran, I believed that such matters were solely within the employer's discretion, and I did not realise that I had the right to challenge the dismissal within a specific timeframe." It is well established that ignorance of the law does not give rise to an exceptional circumstance.

• [11] I find that the Applicant has not provided an acceptable explanation for the delay of 37 days. This weighs against the extension of time.

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

• [12] The Applicant claims that he spoke to the United Workers Union, JobWatch and the Fair Work Ombudsman prior to lodging this application. There was no evidence to support that claim. Nor is there any evidence that the Applicant took formal steps to dispute the dismissal prior to lodging this claim.

• [13] The Applicant claimed that he verbally expressed to the company that the decision to terminate his employment was "unfair". He stated that he explained that he had a newborn child but that these concerns were dismissed. There is no evidence in support of this claim. Even if I accepted this evidence, it would only weigh marginally in favour of an extension of time.

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

• [14] The Applicant submitted that the delay will not cause prejudice to the Respondent.

The Respondent is prejudiced by the delay. The dismissal formed part of a broader restructure involving multiple redundancies during that period. The passage of time affects the availability of witnesses, the preservation of records, and the ability to respond to what are vague and unparticularised allegations. The Applicant's assertion that no prejudice arises is incorrect, delay always carries evidentiary risk, particularly where the claims are broad and lacking in specificity, as in this case.

• [16] The Respondent did not elaborate on which witnesses would be unavailable. In the circumstances, I consider this factor to weigh marginally against an extension of time.

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

• [17] 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.

• [18] 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."

• [19] 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

• [20] The Applicant did not provide submissions on this point. I note that it is common for applicants to be ignorant of the statutory timeframe for dismissal related applications. That does not give rise to an exceptional circumstance.

• [21] 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.

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