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 Mr Admys De Sousa Gomes (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] While there is also a dispute regarding whether the Applicant was dismissed, the parties agree that if there was a dismissal, 17 July 2024 would be the date of dismissal. The Application was lodged on 30 March 2025, and was 235 days out of time.

• [3] 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]

• [4] 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.

• [5] 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.

• [6] 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.

• [7] The Act does not specify what reason for delay might tell 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 the assessment of whether there are exceptional circumstances, and 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.[3]

• [8] The Applicant acknowledged that the Application was filed outside the 21-day limit and his justification in his Form F2 was as follows:

It is important to highlight that, shortly after my dismissal, I fell into a state of deep depression. I was psychologically and emotionally affected to the point that I required professional therapeutic assistance. I have been undergoing regular sessions with a Brazilian psychologist as well as acupuncture treatment to manage the psychological trauma resulting from this unfair dismissal. I did not file a Fair Work claim within the standard 21-day period due to my deteriorating mental health condition. This delay is supported by medical evidence, which includes records of my psychological and acupuncture treatments submitted to relevant bodies. As per the Fair Work Act 2009 (Cth), under section 394(3), the Fair Work Commission may accept a late application for unfair dismissal if there are "exceptional circumstances", including serious illness or psychological injury. I submit that my mental health condition constitutes such exceptional circumstances.

• [9] The Applicant provided a Psychologist's Report that stated:

I hereby declare for the due purposes that Mr. ADMYS FRANCISCO DE SOUSA GOMES, holder of CPF (Taxpayer Number) 007.595.733-79, has been in psychotherapeutic care since November 2019, with a two-year gap, having resumed sessions in November 2024.

The patient presents with anxiety disorder, characterised by excessive worries about his

professional future and a sense of hopelessness, resulting in a depressed mood.

Therefore, the continuation of psychological care is necessary, with 50-minute weekly sessions.

I am available for any clarifications that might be necessary.

[Signature][Stamp] Helene P. dos Santos Araripe

• [10] The Applicant also provided an Assessment Report from an acupuncture practitioner that provided:

I have been seeing Mr Admys Francisco De Sousa Gomes since August 2024 for his joint pain and stress related issues.

The patient presents with pain after suffering from an accident as well as anxiety about his future and life in Australia. The patient also shows pessimistic views about his life and work, which lead to sleeping disorder and brain fogginess.

In my opinion, regular acupuncture treatments are necessary for his wellbeing.

• [11] 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.'

• [12] It is apparent that the Applicant's psychological treatment did not commence until November 2024, at least 3 months after the alleged dismissal. While the Applicant may have been suffering symptoms prior to that treatment, they did not preclude the Applicant advancing his interests in the period following the alleged dismissal. The Applicant relied on documentation that disclosed:

(a) On 22 August 2024, the Applicant made a complaint to the Fair Work Ombudsman;

(b) On 11 and/or 12 November 2024, the Applicant filed a detailed complaint with Anti-Discrimination New South Wales. That complaint was subsequently dismissed; and

(c) On 11 January 2025, the Applicant drafted a document titled "Statement of Claims", however it was unclear as to where such claims were directed.

• [13] It is clear that the Applicant was not precluded by any illness from advancing his claims. He simply chose to advance those claims elsewhere, and not to comply with the 21-day limitation period. That is not an exceptional circumstance. The absence of an acceptable explanation weighs against the Applicant.

• [14] This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application.

• [15] While the Applicant took action against the Respondent in Anti-Discrimination New South Wales, that action did not forewarn the Respondent of the Application. Rather, it put the Respondent on notice that he was advancing his claims in a different forum. Nonetheless, I consider this factor is a neutral consideration.

• [16] While a delay of 235 days would be likely prejudice an employer, I note the Respondent did not claim any prejudice. In the circumstances, I consider this consideration to be neutral.

• [17] 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."

• [18] In the matter of Kornicki v Telstra-Network Technology Group[4] 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."[5]

• [19] 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

• [20] 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.

• [21] As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any significant weight, being the absence of any acceptable reason for delay, weighs in favour of a conclusion there are not exceptional circumstances. None of the factors weigh against such a conclusion.

• [22] 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.

• [23] 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).

• [24] Accordingly, the Application must be dismissed.

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

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

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

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