Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - application made outside of 21-day time limit - no exceptional circumstances - application dismissed.

• [1] On the 11 July 2025, Mr Christian McBrearty (the Applicant) lodged an application (the Application) pursuant to s 365 of the Fair Work Act 2009 (Cth) (the Act) in which he asserts that the termination of his employment on 16 June 2025 by Imagine Hotels and Resorts Services Pty Ltd (the Respondent) contravened his workplace rights.

• [2] Section 366(1) of the Act states that a general protections dismissal dispute application must be made 'within 21 days after the dismissal took effect', or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 366(2) of the Act. The period of 21 days ended at midnight on 7 July 2025. The Application was therefore filed 4 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s 366(2) of the Act.

• [3] Following allocation of the matter to my Chambers on 7 August 2025, Directions were issued to the parties for the filing of material in relation to the jurisdictional issue of the Application being out of time. Both parties filed material in advance of the hearing listed for 28 August 2025. At the hearing, the Applicant appeared and gave evidence while Mr Brett Pointon, CEO of the Respondent, appeared and gave evidence.

• [4] The Applicant commenced employment on probation with the Respondent on 3 February 2025 on a full-time basis as Guest Services Agent (GSA) at the Imagine Marco Hotel in Melbourne.[1] He was employed under an employment contract signed by him on 17 January 2025.[2]

• [5] In an effort to address deficiencies in the guest services and guest experience area of its Melbourne Hotel, Mr Pointon states that in addition to one existing Frontline Office Manager (FMO), the Respondent recruited two additional FMOs to pair with the less experienced GSAs on each shift. By this recruitment, the Respondent intended to bolster its front-line staffing, ensuring it had the necessary experience to deal with all front-line interactions. A consequence of the recruitment of two FMOs was that it was necessary to reduce the contingent of four GSAs by one so that three GSA's were retained to be paired with the three FMOs across the shifts.[3]

• [6] Mr Pointon says he identified the Applicant as the least experienced GSA and as he was still in his probationary period, he was selected for redundancy. Despite claims by the Applicant, Mr Pointon considered that the three other GSAs had more relevant experience. He says that he wanted to speak with the Applicant directly about his redundancy at that time, the Applicant was temporarily absent from work on personal leave on 16 June 2025. Mr Pointon nonetheless decided to call the Applicant on the morning of 16 June 2025. During the call, the reasons for the organisational restructure and the Applicant's selection for redundancy was explained to the Applicant according to Mr Pointon. Mr Pointon emphasised that the decision to make the Applicant redundant was taken well before the Applicant's temporary absence on 16 June 2025.[4]

• [7] The Applicant confirmed he was absent on personal leave on 16 June 2025 for which he had a medical certificate[5] and received a phone call from Mr Pointon at approximately 10.15am. He says that Mr Pointon told him he was not experienced enough and that his role was to be made redundant because of the winter period, a claim strongly disputed by the Applicant. The Applicant further claims that two other recent recruits had no prior industry experience. The Applicant says he advised Mr Pointon during their conversation that the decision was 'sudden and shocking' and that his termination was 'cold and sudden,' a statement he says Mr Pointon agreed with.[6]

• [8] The Applicant goes on to state he had not received any prior warnings in relation to his performance and the decision to dismiss him lacked procedural fairness and consultation. He says Mr Pointon tried to soften the blow by paying him two weeks' pay in lieu of notice rather than following any genuine consultation process under the Act. Shortly after the call from Mr Pointon, the Applicant received a message[7] from the Respondent's Payroll Department confirming the termination of his employment during his probationary period.

• [9] The Applicant states that later that day on 16 June 2025, he experienced severe emotional distress and that in a state of shock and despair he consumed a large quantity of alcohol. This he says led to a serious health episode, resulting in paramedics attending his home to assess his condition. He acknowledges that he has no formal records of Ambulance Victoria's attendance at his house but has sought such confirmation.[8] The Applicant further claims that in the weeks following his dismissal, he experienced anxiety, depression and confusion about his rights. Approximately one month later he says was hospitalised for acute appendicitis and required surgery to remove his appendix which then required a period of recovery.[9]

• [10] Finally, the Applicant states that he was unaware of the 21-day filing deadline for general protections dismissal dispute applications and that once he became aware of the filing deadline he acted promptly to file the Application.[10]

• [11] Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute if an application is made under s 365. For an application to be validly made under section 365, it (the application) must be made within 21 days after the dismissal took effect or such further period as the Commission allows pursuant to section 366 of the Act.

• [12] The Act allows the Commission to extend the period within which a general protections dismissal dispute application can 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.[11] 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.[12]

• [13] 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.

• [14] 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 like position.

• [15] 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 turn to consider these matters in the context of the Application.

• [16] For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 7 July 2025. The delay is the period commencing immediately after that time until 11 July 2025, although circumstances arising prior to that day may be relevant to the reason for the delay.[13]

• [17] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[14] An applicant does not need to provide a reason for the entire period of the delay although 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. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay.[15]

• [18] The Applicant attributed the late filing of the Application to a combination of factors. They were that firstly, he became emotional and drank a significant amount of alcohol on 16 June 2025 leading to an ambulance attending his home. Secondly, he suffered anxiety, depression and confusion in the weeks following his dismissal. Thirdly, he had surgery to remove his appendix approximately one month after his dismissal. Finally, he was unaware of the 21-day filing period requirement.

• [19] Dealing firstly with the Applicant's consumption of an excessive amount of alcohol on 16 June 2025 in response to the loss of his job. That does not provide an acceptable explanation for the filing delay for the reasons that follow. Accepting the Applicant's evidence at its highest, he consumed a large volume of alcohol following the sudden loss of his employment. So much did the Applicant consume that ambulance officers were called to his home by his concerned housemate to check on the Applicant's condition. The Applicant was not admitted to hospital, and there is no evidence that the aftereffects of his alcohol consumption produced more than a bad hangover the next day or so. The Applicant responded when questioned that he did not go on a 21-day 'bender'. Accepting that the Applicant was affected by his excessive alcohol consumption for 1-2 days after his dismissal, he still had 19 days to prepare and file the Application on time. I am consequently satisfied that the Applicant's self-inflicted 1-2-day incapacitation does not explain the 4-day delay in filing the Application.

• [20] Turning to the claim of anxiety, depression and confusion, there is simply no medical evidence to support the submission that the Applicant was suffering from such a condition following his dismissal or that the claimed medical condition was such as to have incapacitated him to the point where he was unable to file the Application at an earlier time than he did. The Applicant accepted during cross-examination that he did not attend a General Practitioner or other medical practitioner in the period he says he was suffering from anxiety, depression, and confusion. He also agreed when questioned that he continued to undertake a broad range of daily activities in the relevant 21-day period. The submission that his state of mental health explained any part of the delay must be rejected. As regards his admission for acute appendicitis and surgery to remove his appendix, on the Applicant's own evidence this took place approximately one month after his dismissal and certainly after he filed the Application. The medical episode associated with removal of his appendix does not explain why he was unable to file the Application within the 21-day period.

• [21] Dealing finally with the Applicant's claim the delay in filing the Application was due to his ignorance regarding the 21-day filing period under the Act. That explanation must be rejected as it is well established that ignorance of the statutory time period does not weigh in favour of a finding of exceptional circumstances. The Full Bench in Nulty v Blue Star Group Pty Ltd[16] (Nulty) said as follows when considering an extension of time sought in respect of a general protections dismissal matter on appeal before it;

"[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances." In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance."

• [22] It follows from the foregoing that I am not satisfied that the Applicant has provided an acceptable explanation for the 4-day delay in filing the Application. This weighs against a finding that there are exceptional circumstances.

• [23] The Applicant took no action to contest his dismissal after it took effect on 16 June 2025, other than lodging the Application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

• [24] The Application was filed 4 days outside of the 21-day period. The Respondent was unable to identify prejudice it would suffer, and I find in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.

• [25] The Act requires me to take into account the merits of the Application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[17] it 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."

• [26] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case"[18] for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.

• [27] The Applicant contends that he was dismissed shortly after he submitted a valid medical certificate and exercised his workplace right to take personal leave. He points to the temporal link between notification of the personal leave on the morning of 16 June 2025 and the call from Mr Pointon later that morning in which his dismissal was communicated. Mr Pointon gave evidence of the organisational restructure that led to the selection of the Applicant as the least experienced GSA to be made redundant. He rejected that the dismissal was in response to the personal leave taken by the Applicant on 16 June 2025.

• [28] Having reviewed the limited evidence before me, it is evident to me that the merits of the Application may turn on contested points of fact which would ultimately need to be tested if an extension of time were granted and the matter were to proceed. It is not possible however to make any firm or detailed assessment of the merits. The Applicant has raised an arguable case that is not without some merit. The Respondent has raised a prima facie defence. I consider the merits to be a neutral consideration.

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

• [29] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.

• [30] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

• [31] Having regard to the matters I am required to take into account under s 366(2) of the Act, and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

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) of the Act. Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.

[1] Exhibit A1, Witness Statement of Christian McBrearty, dated 20 August 2025, at [1]-[2]-

[2] Exhibit R1, Witness Statement of Brett Pointon, dated 25 August 2025, at [3], Annexure BP-1, Christian McBrearty Employment Contract

[5] Exhibit A1, Annexure c, Medical Certificate, dated 16 June 2025

[7] Exhibit A1, Annexure D, Notice of Termination of Employment, dated 16 June 2025

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

[13] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

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

[16] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

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

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

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