Fair Work Act 2009

s 365 - General protections

General protections involving dismissal - out of time - application dismissed

• [1] On 15 August 2025, Fady Bolous (the Applicant) applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth) (the Act) for it to deal with general protections contraventions involving dismissal.

• [2] The Act requires an application made under s 365 to be lodged within 21 days after the applicant's dismissal took effect or within such further period as the Commission allows under s 366(1)(b) of the Act.[1] Qube Bulk Pty Ltd (the Respondent) objected to the application on the basis that it was filed outside the 21-day period prescribed by s 366(1)(a) of the Act.

• [3] It is uncontentious that the Applicant's dismissal took effect on 11 July 2025 and therefore his application was lodged 14 days after the statutory deadline. The Applicant contends that there are essentially three reasons for the delay in lodging his application. First, he had a medical condition in respect of his mental health. Second, he was seeking legal advice and third, he was communicating with the Human Resources department of the Respondent to report the two trainers who had provided MC truck driving training to him in his probationary period and to understand what it was that he did wrong.

• [4] For the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 366(2) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the factors listed at s 366(2)(a)-(e). The issue before me is whether the circumstances are exceptional and, if they are, whether it is fair and equitable for an extension to be granted.

• [5] In the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am, on balance, not satisfied that there are exceptional circumstances as contemplated by s 366(2) of the Act and therefore the application is dismissed. An Order[2] issues concurrently with this decision and detailed reasons follow.

• [6] The broader context and events leading to the conclusion of the Applicant's employment and the delay in making the application are as follows.

• [7] The Applicant commenced in the role MC Truck Driver with the Respondent on or around 26 June 2025. The Applicant worked and resided in regional Western Australia (Port Hedland).

• [8] The Applicant appears to have been assigned to training on commencement. The Applicant reports that the training started at 10:00AM and, in his view, it was going okay. However, at around 9:00PM the trainer is said to have started swearing and threatening the Applicant whilst he was driving. Matters appear to have escalated between the two, with the trainer purportedly instructing the Applicant to disembark the vehicle. The Applicant states that another driver of the Respondent came out to collect him and drive him back to the depot.

• [9] According to the Applicant, he was informed by the supervisor that he would be assigned another trainer. The Applicant reports that the second trainer was worse than the first trainer, giving him contradictory instructions and utilising techniques that led to confusion for a trainee.

• [10] The Applicant was dismissed on 11 July 2025 having been advised in the letter of termination that the decision to terminate the Applicant was due to him failing to meet the Respondent's expectations in the performance of his role during his probationary period.

• [11] The Applicant considers that he was dismissed because he complained and made a statement about the first trainer who had made him disembark from a vehicle in a remote area, which the Applicant regarded as a safety matter.

• [12] Under s 366(2) of the Act, the Commission has the power to extend the time within which an application for a general protections dismissal dispute can be made. In Tamu v Australia for UNHCR,[3] a Full Bench of the Commission summarised the principles relevant to applications of this kind:

[16] Section 366(1) provides 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 section 366(2). The 21 day period prescribed in section 366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.

[17] Section 366(2) of the Act sets out the circumstances in which the Commission may grant an extension of time as follows:

"(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."

[18] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension. A decision whether to extend time under section 366(2) involves the exercise of a discretion.

[19] The meaning of "exceptional circumstances" in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd ('Nulty'),[4] 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."

[20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.' (footnotes omitted)

• [13] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd ('Stogiannidis'),[5] a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers,[6] which had concluded that for 'exceptional circumstances' to be established, an applicant must provide reasons for the whole of the period of delay. In Stogiannidis, the Full Bench expressed:

[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.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time 'needs to provide a credible explanation for the entire period', it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.

• [14] At the commencement of the hearing, the parties were referred to s 366(2) of the Act. Both were invited to make any further submissions in relation to the question of whether there were 'exceptional circumstances' by reference to those factors at paragraph [12] of this decision. Each of these factors are considered below and were outlined to the parties before the hearing.

• [15] It has been observed that the Act does not specify what reason for delay might tell in favour of granting an extension.[7] However, decisions of the Commission have referred to an acceptable[8] or reasonable[9] explanation. The absence of any explanation for any part of the delay may weigh against an applicant in the assessment of whether there are exceptional circumstances, whilst 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.[10]

• [16] The relevant period required to be considered under s 366 is the period after the 21-day timeframe for lodging the application.[11] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[12]

• [17] The Applicant essentially relies on three matters as reasons for the delay in lodging his application.

• [18] First, and as noted, the Applicant states that following his dismissal, he had a medical condition related to his mental health and took a stress break. The Applicant refers to having suffered with low mood and fatigue. In support of this reason the Applicant provided a letter from his General Practitioner dated 15 September 2025 (GP Letter). The GP Letter clarified in the opening paragraph that the General Practitioner was writing in good faith. It continued:

...based on information provided by Mr Fady Zarik Rezk Bolous, to support his explanation for the delayed application to the Fair Work Commission for a general protection claim following his dismissal on 11/07/2025. The delay was due to significant psychological stress, financial hardship, and procedural challenges...

• [19] The GP Letter aligned with the Applicant's evidence that from 11 - 26 July 2025, the Applicant took a necessary break to manage his mental health, recognising the danger of operating heavy vehicles while stressed. The Applicant submitted that he found it reasonable and essential to relax and not to decide anything, given the stress he had been subject to regarding the inadequate training process, the safety issues, the incident report and the dismissal combined.

• [20] It is accepted that an applicant's medical condition can be so significant that it affects the applicant's mental capacity to prepare and file an application with the Commission. However, much may turn on the evidence adduced to support such a proposition. In Underwood v Terra Firma Pty Ltd, the Full Bench accepted the finding made at first instance that the applicant had failed to positively demonstrate that his depressive illness had impacted his mental capacity so as to prevent him from making the application within 21 days.[13] The Full Bench affirmed the findings that the medical evidence relied upon 'did not positively demonstrate that the Appellant's depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame' and that no exceptional circumstances were established.[14]

• [21] The GP Letter refers to the emotional toll on the Applicant as having been significant and that he had been subject to significant psychological stress.

• [22] The GP Letter was dated after the date that the application was made and directly addressed that it was provided to support the Applicant's application and was based upon the information of the Applicant. It is therefore reasonable to conclude that the Applicant intentionally sought the GP Letter to, in part, provide reason for the delay in filing his application - the delay period pre-dating the GP Letter. It is therefore evident that the GP Letter is not contemporaneous with the period of the delay, and it does not disclose that the General Practitioner treated or assessed the Applicant during, or prior to, the period of the delay. On its face, the GP Letter does nothing more than simply recount the Applicant's subjective assessment of how he felt during the period of the delay and in the period leading up to his dismissal. Furthermore, the GP Letter refers to the Applicant taking a necessary break to manage his mental health in the context of 'recognising the danger of operating heavy vehicles while stressed'. This reason for the 'break' does not necessarily mean that the Applicant was unable to complete a general protections application in the requisite period.

• [23] In the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish they were prevented from lodging an application due to a medical condition where the employee demonstrates capacity to act by performing other tasks following the dismissal.[15] In this case, there is no probative medical evidence showing incapacity at a particular time or times in the delay period.

• [24] The statutory period in which the application was required to be made was by 1 August 2025. The Applicant's evidence shows that on 23 July 2025, he emailed the 'Qube Bulk HR Team' to report the two trainers and to submit that he had done nothing wrong and that the Respondent had not provided trainers who understood safety. Having received a response from the Respondent on 31 July 2025, the Applicant replied on that same day noting '...However, iam [sic] not after any money, but I have applied for I have been working for subbies..'. The Applicant's conduct in the delay period does not demonstrate an incapacity to grapple with his dismissal. For example, it is evident that the Applicant was not so incapacitated that he was unable to correspond with the Respondent regarding his dismissal.

• [25] Whilst empathetic to the circumstances that the Applicant faced at the time of his dismissal, specifically the stress and financial hardship, it is common for employees to suffer shock and trauma because of dismissal from employment,[16] and financial hardship on the loss of job. These reasons do not necessarily lead to a finding of a plausible reason for the delay. In this case, I am unpersuaded that the Applicant's medical condition or financial hardship provides a reasonable explanation for the delay in making his application.

• [26] The Applicant further refers to the delay he encountered in seeking and then receiving legal advice. The Applicant submitted that he did not have sufficient funds to seek legal advice and therefore had to book appointments with Legal Aid and Circle Green Community Legal who, he says, gave him good advice but it took time to secure an appointment and receive that advice.

• [27] The Applicant provided evidence in respect of his endeavours to obtain legal advice. The email from Circle Green Community Legal confirmed a one-off employment law telephone advice appointment on 18 August 2025. It must be said that the Form F8 has been developed with a self-represented applicant in mind. It is not a complex document; it is not in the nature of a formal pleading; it is designed so that it may be completed by a layperson and may be lodged by a number of methods including online lodgement. Awaiting the receipt of legal advice prior to making the application does not, in my view, constitute a plausible reason for delay.

• [28] The third reason for the delay has been referred to, namely the Applicant's communications with the Human Resources department of the Respondent to report the two trainers who had provided MC truck driving training to him in his probationary period and to understand what it was that he did wrong. Whilst appreciative that the Applicant was disgruntled with the trainers and the Respondent and was wanting to understand further the reason for his dismissal, these are not plausible reasons for delaying the filing of his application. In his closing submissions, the Applicant appeared to suggest that the Respondent had indicated to him to hold off making an application until such time as it had enquired into his complaint. However, the evidence does not support the Applicant's assertion, and, in any event, delaying the filing of an application on the basis of awaiting the outcome an internal investigation by the Respondent does not constitute a plausible reason for the delay.

• [29] I have considered the delay as the period beyond the 21-day period. Regard has been had to the circumstances from the date the dismissal took effect, including that the Applicant resided in a regional area. That the Applicant lived in a regional area, has not, in my view, contributed to the period of delay, there being little in the way of evidence to show that his location impacted the making of an application. It follows that I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the whole period of the delay in lodging his application, or part thereof. This weighs against a finding of exceptional circumstances.

• [30] Action taken by the employee to contest the dismissal, other than lodging a general protections dismissal dispute, may favour granting an extension of time.[17] The Applicant outlined that during the period after his dismissal, he emailed the Respondent with respect to reporting the two trainers and enquiring as to the reasons for his dismissal. Whilst difficult to discern, it appears that in one of the Applicant's emails dated 31 July 2025, he may have been referring to an application of some sort (albeit the Applicant subsequently emailed the Respondent to note the email was a draft and should be ignored).

• [31] In the circumstances, I consider that the Applicant was clearly at odds with his dismissal and was making that known to the Respondent after his dismissal. The Respondent had essentially been placed on notice of the Applicant's grievance albeit it was likely unclear that an application to this Commission would follow. However, I am nevertheless satisfied that the steps taken by the Applicant in this respect weigh toward a finding of exceptional circumstances.

• [32] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted and therefore consider this criterion to be a neutral factor, noting that the mere absence of prejudice is not a factor that would point in favour of the grant of extension of time.

• [33] The Act requires me to consider the merits of the application in considering whether to extend time.

• [34] In Nulty, the Full Bench of the then Fair Work Australia considered the principles applicable to the extension of time discretion under s 366 of the Act. In that case, the Full Bench said in respect to the merits of an application:

[36] It ought be regarded as well established that on an extension of time hearing it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).

• [35] In Telstra-Network Technology Group v Kornicki,[18] the Full Bench of the Australian Industrial Relations 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 Full Bench said in respect to the merits of an 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.[19]

• [36] In his application, the Applicant states that Part 3-1 of the Act has been contravened and says that he considers that he was dismissed because he complained and made a statement about the first trainer who had made him disembark from a vehicle in a remote area, which the Applicant regarded as a safety matter. The Respondent contends to the contrary.

• [37] In my view, whilst the Applicant has established on the face of it that the substantive application is arguably not without merit, it remains that there are contested issues of fact, and it is 'not appropriate for the Commission to resolve contested issues of fact going to the ultimate merits' for the purpose of determining whether to grant an extension of time under s 366(2),[20] I have therefore concluded that this factor is neutral in the circumstances.

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

• [38] The criterion of 'fairness as between the person and other persons in a similar position', was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[21]

• [39] The Commission's consideration of the factor under s 366(2)(e) is concerned with the

consistent application of principles in applications of this kind.[22] This ensures fairness as between an applicant and other persons in a similar position. However, applications for an extension of time generally turn on their own facts, and it follows that in the circumstances of this case, the consideration of fairness between the Applicant and persons in a similar position is a neutral consideration.

• [40] The conclusion as to the existence of exceptional circumstances will turn on a consideration of all the relevant matters and the assignment of appropriate weight to each.

• [41] As noted, in the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am, on balance, not satisfied that there are exceptional circumstances as contemplated by s 366(2) of the Act. Whilst appreciative that the Applicant emailed the Respondent to report the two trainers, express his dismay at his dismissal and seek to understood what he did wrong, the reasons for the delay are uncompelling and the remaining considerations are neutral. It follows that it is unnecessary to consider whether it is fair and equitable that time should be extended.

[1] Section 366(1) of the Act.

[2] PR792162.

[3] [2019] FWCFB 2384.

[4] [2011] FWAFB 975 ('Nulty').

[5] [2018] FWCFB 901 ('Stogiannidis').

[6] [2010] FWAFB 7251.

[7] Pottenger v Department of Caffeine [2018] FWC 3403, [31].

[8] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9].

[9] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

[11] Long v Keolis Downer [2018] FWCFB 4109, [40].

[12] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12].

[13] [2015] FWCFB 3435.

[15] See Ballarat Truck Centre Pty Ltd v Kerr [2011[ FWAFB 5645, [15].

[16] Howard v Medical and Aged Care Group [2018] FWC 3454, [19].

[17] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

[18] (1997) 140 IR 1.

[21] [2015] FWC 8885, [29].

[22] GHD Pty Ltd v Black [2023] FWCFB 38, [94].

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