s.365 - Application to deal with contraventions involving dismissal

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

• [1] This decision concerns an application made by Mr Cody Adams on 9 August 2025 under s.365 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with a general protections dispute involving his alleged dismissal by Optus Administration Pty Ltd (Optus) on 13 May 2022.

• [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). The application was made 3 years and 3 months out of time and may only proceed if the Commission allows an extension of time.

• [3] The Respondent objects to the extension being granted and also objects to the application on the basis that Mr Adams was not dismissed because he resigned. This issue arises because Mr Adams resigned from his employment but quickly withdrew his resignation when he discovered that he had been provided incorrect information about his termination pay, specifically that he would be paid a substantial bonus. Optus acted on the resignation and regarded the employment as having ended.

• [4] I expressed the preliminary view during the hearing of the matter that I considered, in the circumstances, that there was a dismissal within the meaning of s.386 of the Act as it was at the initiative of Optus which refused to permit Mr Adams to withdraw his resignation. I do not need to express a concluded view on that issue as I have decided that, due to the length of the delay, I will not extend time for Mr Adams to make his application.

• [5] This decision deals only with whether time should be extended for the application to proceed.

• [6] The time for making applications under s. 365 is set by s. 366(1) is 21 days after the dismissal took effect or such further time as the Commission allows under s. 366(2). Section 366(2) reads:

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

• [7] The subsection requires the Commission to be satisfied there are exceptional circumstances for extending time. The Full Bench of the Commission in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 described the use of the expression exceptional circumstances in s. 366(2) as follows:

[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.

[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.

• [8] In a later decision the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd  [2018] FWCFB 901 said:

[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

• [9] I was addressed on the matters in s. 366(2).

• [10] Mr Adams contended that the delay in filing the application was primarily attributed to his significant mental health decline since the time of the termination of employment. A medical certificate was provided. The certificate was from Mr Adams' treating general practitioner. It is in the following terms:

This is to certify that I am Mr Cody Adams treating GP and have been seeing him for several years, including when I was working at Port GPs when Cody experienced an exacerbation of PTSD in work environment in 2022-see Cody's attached documents including a letter of support from myself. He has been subsequently diagnosed by psychiatrist Dr Burton as having complex PTSD, anxiety and depression. From what I understand Cody was approved during the pandemic in 2022 to work remotely to work in the capacity of Senior business management leader (EPMO for Australian Tax office-customer) on line and was he managing a ministerial portfolio (telecommunications) during which time he was having further mental health treatment for his PTSD for approximately 3-6 months in Port Macquarie. Cody advised me he had been advised by his manager Raph Revello he would get a bonus which was reneged afterwards and enforced that Cody was supposed to be on site during the treatment period where he was working remotely. Cody related he felt this was unreasonable given Optus acknowledged his PTSD upon joining the company and given this was an exacerbation of PTSD further worsened by forced resignation and loss of bonus causing him financial pressures consequently and it took over a year to find employment. This was also against my own advice regarding working remotely to ensure he could fulfil his job requirements whilst getting the mental health support he needed and hindered his recovery exacerbating his distress and mental health issues. I would recommend further clinical psychology and psychiatric treatment as well as continuation of his new medications regime including lamotrigine, quetiapine with gradual reduction of diazepam as anxiety reduces. He is now trying to re-enter the workplace but the above experiences have made him quite anxious and panicky about the prospect given prior treatment in the workplace. Also the delay in application regarding the above issues was related to Cody's participation in the New Zealand Royal Commission where he testified about sexual abuse endured in institutional care as a minor.

• [11] The reference to the New Zealand Royal Commission is a reference to the New Zealand Royal Commission of Inquiry into Abuse in Care which investigated child sexual abuse and neglect in State and faith-based institutions in New Zealand between 1950 and 1999. The Royal Commission commenced in 2018 and released its final report in July 2024. Mr Adams is a survivor of sexual abuse having been a ward of the state in his youth and was subjected to abuse.

• [12] Mr. Adams relies on the medical certificate to contend that his mental health struggles brought about by the impacts of the way his employment ended with Optus and his involvement in the New Zealand Royal Commission left him mentally and cognitively incapable of pursuing the matter earlier. He contends that his mental health was such that he was unable to deal with his claim against Optus and that his understanding was that the statute of limitation for bring the claim was 6 years. He was unaware of the 21-day limit for filing a general protections claim over his dismissal until recently.

• [13] I consider that the circumstances described by Mr Adams are out of the ordinary and they provide an explanation for the delay. The adverse health reaction to the termination of his employment on its own does not in itself give rise to exceptional circumstances. Many employees experience adverse mental health impacts associated with the termination of their employment. I would not regard that alone as an exceptional circumstance in favour of an extension of time. In Mr Adams case however he was suffering PTSD in addition to, and at the time of, the dismissal. That was brought about by the impact of the Royal Commission on his mental health. Those circumstances were out of the ordinary and I accept that they contributed to the delay.

• [14] I note the observations made by the Full Benches referred to earlier that mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance and there is a presumption that in setting a 21 day the Act proceeds 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. These matters weigh against a finding that time should be extended as even though Mr Adams was suffering from PTSD exacerbated by the termination of employment it should still be expected that he would seek out information on any remedy that might be available to him and the timeframe in which to seek it. Nothing in the medical certificate indicates that Ms Adams was incapable of seeking out the relevant information at the time of dismissal. Nor does it explain why his PTSD prevented him from making the application over such a lengthy period.

• [15] The length of the delay is relevant. The application was filed over 3 years out of time.

Mr Adams contends that as his PTSD related to childhood trauma and that the Royal Commission involved revisiting that trauma. His participation in the Royal Commission therefore affected his state of mind such that he was unable to attend to making his application against Optus. I note that the Royal Commission's final report was released in November 2024 some 10 months before the application was made. Even assuming the report itself may well have led to further exacerbation of Mr Adams' condition, there is no explanation as to why the application could not have been made before August 2025.

• [16] Balancing these matters I find that there was a reason for delay that meets the description exceptional circumstances but the weight that should be given is tempered by the length of the delay and the lack of specific evidence about the inability to seek information about the time limit associated with the application, and the lack of evidence as to why, if the reason for not gaining that information was trauma associated with the Royal Commission why Mr Adams still did not file sooner than August 2025, ten months after the Commission handed down its final report.

Any action taken by the person to dispute the dismissal

• [17] Mr Adams explains that he attempted to dispute his dismissal at the time it occurred but then focused on his health thereafter. In particular he contacted Optus payroll regarding the unpaid bonus. ​He also contacted account managers to discuss his termination of employment and discussed alternative employment. He said his health issues prevented him from pursuing any formal dispute until recently.

• [18] I was provided with communications soon after the employment was terminated. I accept that Mr Adams contacted Optus and made it clear that he disputed the way his employment was terminated. I also accept that there were discussions about alternative employment. These discussions led to Optus considering Mr Adams for an alternative role albeit on less pay. Mr Adams did not take up the role.

• [19] I do not regard this a factor that weighs in favour of finding that there were exceptional circumstances justifying extending time to make the current application. The discussions disputing the dismissal were around the time that the termination took place. They were completed in May 2022, and the application is now made some 3 and a half years later.

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

• [20] Mr Adams accepts that there is some prejudice to Optus arising from the effluxion of time as some of those involved in the circumstances surrounding the termination of his employment have moved on from Optus. He contends that that prejudice is not great as the key communications were in writing and that Optus will have access to email and other messaging services containing those communications.

• [21] Optus refutes that it has access to the communications. It says it does not have access to messaging services used at the time and is not confident it can retrieve all of the relevant emails. It also contends that all of the key actors in the business have left and that the delay will prejudice it.

• [22] I accept Optus' submissions on this point. The length of time since the dismissal gives rise to a significant prejudice in circumstances where people have moved on and collating relevant documents and communications is hampered by the delay.

• [23] Mr Adams general protections application is in essence that his dismissal was due to his mental health issues. He contends that he was performing well and received positive performance reviews. He had been working remotely in Port Macquarie in Northern NSW and was faced with pressure to return to the office in Canberra despite ongoing mental health treatment. He says he was faced with an ultimatum that he would lose his job if he did not return to the office. He resigned, believing he would receive a bonus, which was a key factor in his decision. When he rescinded his resignation shortly after, citing confusion over the bonus payment, Optus refused to allow him to withdraw the resignation bringing about his dismissal.

• [24] Optus denies that it dismissed Mr Adams and also denies that it dismissed him due to his mental health. I was provided with limited evidence about the motivation of Optus in acting the way it did. The contemporaneous communications do not assist in making an assessment of whether Optus would be able to rebut the assumption that it acted contrary to the prohibition in s. 351 of the Act. Evidence would be required from key decision makers.

• [25] Mr Adams states that he seeks reinstatement or if reinstatement is not possible compensation for economic and non-economic loss associated with the dismissal including payment of the contested bonus.

• [26] As I am unable to form a view as to the merits of the application, I consider this to be a neutral factor in determining whether to extend time to make the application.

• [27] Mr Adams also stated that he wished to have access to conciliation to see if his dispute with Optus could be resolved without having to commence lengthy and costly court proceedings. I do not consider Mr Adams preference to have his dispute conciliated to be a factor weighing in favour of extending time.

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

• [28] This factor is not relevant in the current proceedings

• [29] In Nulty the Full Bench observed that following a consideration of the matters in s. 366(2) the exercise of the discretion will turn on a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

• [30] In this case I have found that there are exceptional circumstances associated with Mr Adams mental health. However, I do not consider that those circumstances justify an extension of time to make the application. The length of time of the delay being 3 years and 3 months looms large in my consideration. It is a long time to extend a limitation period which the Act sets as 21 days from the time of the dismissal. I do not consider that the matters raised by Mr Adams justify such a lengthy extension.

• [31] The application to extend the time limit in s. 366(1) is dismissed.

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