Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - application dismissed.

[1] On 8 January 2026, Mr Callum Venville lodged an application under s.365 of the Fair Work Act 2009 (the Act) in which they allege they were dismissed in contravention of Part 3-1 of the Act.

[2] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow.

[3] The Applicant was dismissed on 13 November 2025, and they made this application on 8 January 2026. The 21-day time limit was on 4 December 2025; therefore, the application is out of time by more than 1 month. For the application to proceed, an extension of time to lodge the application is required.

[4] Section 366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

• [5] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd, [1] where it was held that:

"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 regular occurrence, even though it can be a on 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."[2]

• [6] The Applicant identifies several different reasons for the delay. Foremost amongst these are the medical health and psychological issues he has been suffering from. These issues include depression and anxiety arising from a motor vehicle accident in March 2025 and subsequent employment related events, and that he suffers from a genetic condition, Klinefelter syndrome, that impacts his cognitive and executive functioning capacity. Because of these conditions, the Applicant argues he was unable to file his application within time. He presents written correspondence in support of these submissions, along with a medical certificate confirming his ongoing treatment. Mr Venville has not provided any further information or independent evidence to support a conclusion the circumstances he faced were "exceptional" or that his conditions limited his administrative and cognitive capacity to function and file his application. While I accept Mr Venville is dealing with several health issues, there is no material before me to conclude that these issues are "exceptional" or that they have impacted his cognitive or administrative capacity such that he was unable to file his application within the required time. It follows that on their own, I do not accept the Applicant's health and medical disabilities present a valid reason for the delay.[3]

• [7] Turning to the other reasons Mr Venville identifies - that he suffered significant personal and financial hardship and was not aware of the 21-day filing requirement. Mr Venville takes these submissions no further or presents any additional evidence to support his contention that these factors and their impact on him were exceptional or "unique". I note it is well established that there is nothing unusual or uncommon for an employee that has been dismissed to be confronted with stress, shock and financial hardship.[4] Additionally, it is also established by this Commission that ignorance or a lack of awareness of one's rights is not usually an acceptable of reason for delay.

[8] I do not consider any of the reasons for the delay advanced by Mr Venville to be "unique" or "unprecedented", and I am not satisfied that they satisfy the criteria of being "out of the ordinary course", "unusual" or "uncommon". I am, therefore, not satisfied the Applicant has provided a credible and reasonable explanation for the period of the delay. As such, this factor weighs against the granting of an extension of time.

[9] As to s.366(2)(b) steps taken to dispute the dismissal, Mr Venville argues that the terms of a binding non-disclosure and confidentiality agreement arising from his previous employment limited his capacity to dispute his dismissal and fight to save his job. He submits because of these circumstances he was faced with a choice of contesting his dismissal or breaching his legal obligations. I have no reason not to accept these submissions and they are not disputed. Despite this being the case, Mr Venville takes these submissions no further. He does not identify why they limited his capacity to seek assistance or legal advice, contact the FWC or make his application. I have considered these competing submissions and, absent an opportunity for these matters to be tested, I do not consider this factor can be weighed in favour or against the Applicant. Therefore, it is a neutral factor.

• [10] In these circumstances, I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that weighs in favour of the granting of an extension of time.[5] As to fairness (s.366(2)(e)), Mr Venville argues that allowing his application to proceed would not only be fair but help also ensure other employees are not disadvantaged for complying with their legal obligations. The purpose of the fairness consideration concerns "the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[6] The Applicant's submissions do not accord with the fairness consideration and, therefore, fails to weigh in support of an extension of time.

• [11] As to the merits (s.366(2)(d)), the Respondent's position is that Mr Venville's application is without merit. Mr Venville argues he was terminated unfairly in circumstances where he faced legal restrictions and was dealing with significant health issues. The substantive merits of this application have not been fully tested and, as identified by the Full Bench of the Commission in Kyvelos v Champion Socks Pty Ltd, the Commission "should not embark on a detailed consideration of the substantive case" for determining whether to grant an extension of time to an Applicant to lodge their application.[7] The factual context and merits of this case would need to be further scrutinised, including under cross-examination, if an extension of time was granted for the application to proceed. This being the case, I do not consider the merits of the case to tell in favour or against the granting of an extension of time, at best I consider it a neutral factor.

[12] In conclusion, I am required to be satisfied that there are exceptional circumstances. On balance, the considerations above do not weigh in favour of exceptional circumstances in support of an extension of time.

[13] Having considered the material against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application as provided for in s.366(2). Accordingly, the matter is dismissed.

[1] [2011] FWAFB 975.

[3] [2021] FWC 3903 at [24].

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

[5] Fair Work Act 2009 (Cth) s.366(2)(c).

[6] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

[7] AIRC 10 November 2000 at [14]; See also Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899 at [38].

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