s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - extension of time not granted -application dismissed.

[1] Mr Fernando (Applicant) has made an application under section 365 of the Fair Work Act 2009 (the Act) alleging that he was dismissed from his employment in circumstances that involved a contravention of Part 3-1 of the Act. His former employer, Country Road Clothing Pty Ltd (Respondent), disputes the application.

[2] The present application was filed on 13 October 2025. It not in dispute that the Applicant was dismissed on 12 September 2025, in writing and with immediate effect. Accepting that, the application was lodged 30 days after the dismissal and 9 days after the expiry of the time limit set in section 366(1)(a) of the Act for the making of the application.

[3] As the application was filed out of time, an extension of time is required in order for the Application to proceed. This decision deals with the issue of whether such an extension will be provided. Section 366(2) of the Act provides that the Commission may allow a further period for an Application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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 similar position.

• [4] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)[1] a Full Bench of this Commission considered the test for extending time for applications for the Commission to deal with disputes over dismissal involving a contravention of Part 3-1, which appears in s. 366(2) of the Act, and said:

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

Furthermore, the Full Bench in that case described the task of discerning exceptional circumstances in a manner that was not consistent with a mere "tick a box" approach to the enumerated considerations, but rather involved an evaluation taking into account matters of weight and degree.[2]

• [5] The meaning of 'exceptional circumstances' in s.366(1) was also considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty)[3], 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."

[6] The matter before me proceeded by way of an online hearing on 28 January 2028, wherein neither party was externally represented. The only witness in the proceeding was the Applicant. He was cross examined. Both parties filed written materials in support of their positions pursuant to directions issued on 18 December 2025.

• [7] Where paragraph (a) of subsection 366(2) requires the reason for "the delay" to be taken into account, the relevant delay is to be taken to be the period between the expiry of the time limit (in this case 3 October 2025) and the filing of the application (in this case 13 October 2025), and does not include the period from the date the dismissal took effect to the end of the 21 day period. Nonetheless, events and circumstances preceding "the delay" may be considered for the purposes of determining the reason for "the delay" and ultimately whether that reason supports a finding that there are exceptional circumstances.[4] An acceptable explanation of the entirety of the delay is not required to make a finding of exceptional circumstances, however it is relevant to have regard to whether the applicant has provided an explanation for the entirety or any part of the delay.[5] Three explanations were offered in this regard.

• [8] The first explanation was that the manner of termination created confusion as to whether the termination had been a mistake, such that the Applicant was confused as to whether his former employer truly intended to terminate him or if he had in fact been terminated. The letter advising of the Applicant's termination was sent to him via e-mail on 12 September 2025, although the letter itself bore the date of 4 September 2025.[6] The letter relevantly refers to a "previous e-mail sent 25 August 2025" and states "As you have failed to respond to our e-mail, this letter is to advise you that your employment with Country Road Group will cease, effective today". It is not in dispute that the "previous email" was not correctly addressed to the Applicant and that he never received it. The Applicant drew this fact to the Respondent's attention, and his evidence was that the fact he had no knowledge of the "previous e-mail" is what initially led him to the view that the termination was a communication error or mistake.[7] He responded to the email which had enclosed the termination letter the following day, and copied in the People Services department. In addition to putting the Respondent on notice that the earlier message had not in fact been received, the Applicant sought in that response "some clarification" and "follow up", citing a range of communication difficulties he was aware of in recent times and alleging that he had "been victimised from the start". The Respondent submitted that there were more messages in the e-mail chain than had been produced by either party for the purposes of this proceeding. In any event, one message in that chain was dated 22 September 2025, in which Ms Stolarek of the Respondent wrote to the Applicant and said inter alia "Whilst we did terminate your employment due to the unavailability communicated...".[8] The Respondent submitted that this confirmed to the Applicant that he had been terminated.[9] The Applicant was not prepared to accept a proposition put by me that it was unreasonable to be uncertain at that point as to whether or not he had been terminated.[10]

• [9] In support of the proposition that there was some reasonable confusion beyond that time, the Applicant relied on text messages received from his Manager, Ms Srejodev.. The Applicant produced a number of messages prior to and after 22 September in two screenshots taken from his mobile phone.[11] A message on the 23rd of September asked for availability to work the following week, and a message on 1 October referred to being desperate for somebody to work on Saturday. However, those communications, and the others that appeared in those screenshots, suggest they were communications directed to a group of people, rather than the Applicant individually. The first undated message commences with "Good morning team". The next message, on 3 September, commences with "Hi team", as does the following message on 23 September. A message on 1 October commences with "Can anyone work on Saturday please". It was suggested to the Applicant that it ought to be reasonably obvious that this was a group communication and that somebody had simply forgotten to take his details off the distribution list after the termination. The Applicant was unwilling to accept this proposition, and was adamant these communications were sent to him directly.[12]

• [10] The second explanation related to the Applicant's mental state, which he variously described in the materials as being significant emotional distress, anxious, mentally exhausted and not thinking clearly.[13] The impact of that mental state on the Applicant's evidence was that he was not able to "immediately pursue formal legal proceedings".[14]

• [11] Whilst there was no medical evidence provided as to these mental states and their impact on the Applicant's functioning or the duration of any such impact, the Applicant's position is that those mental states were driven by workplace incidents including sexual assaults that had occurred in the workplace. The Applicant claims these sexual assaults, or at least one of the incidents he described as a sexual assault, was reported to Ms Srejodev[15] in the month prior to his dismissal and not acted upon. The conduct relevantly included taking photographs of him without his consent whilst he was undressed in a change room. It is not in dispute that the Applicant had some capacity to commence a claim in the Fair Work Commission earlier than when the present matter was commenced, because he commenced an unfair dismissal application on 6 October, which he later withdrew.[16]

• [12] The third explanation was a lack of awareness of the relevant time limit, the absence of legal representation, and a misunderstanding that it was a requirement to attempt to resolve the matter informally before making an application.[17]

• [13] The Respondent's cross examination relevant to the reasons for delay focussed on a few themes. Firstly, the Respondent probed the Applicant on his claim that he reported any sexual assault to his manager. In his reply materials, the Applicant refuted that he exhibited "poor availability" prior to his dismissal on the basis that his "leave was explicitly approved in response to trauma"[18], being the change room incident referred to at paragraph [11] above. He said that he spoke to his manager "..explaining that I felt very strange, not ok, full of shame and needed time off primarily due to this workplace incident (plus personal reasons), and that this leave was approved". In cross examination, the Applicant was read e-mail correspondence from September 13 of 2025 in which the Applicant explained to Ms Rugolino (Regional Manager) the reason for his period of absence :

"the reason I've not been able to work is due to I've received an inheritance of $400,000 after the passing of an uncle. I mentioned to my ASM [Ms Srejodev] that I will be taking time off but did not go into specifics as she was fine with me taking time off...."[19]

In cross examination, the Applicant said that he did not discuss the changeroom incident with Ms Srejodev when he first requested leave but had rather discussed it with her at earlier time. This is clearly inconsistent with the account given in the Applicant's reply material, but that in itself does not necessitate a conclusion that the alleged incident was not reported at all to Ms Srejodev. It is possible that the Applicant's recollections of the sequence of events was imperfect. The Respondent also relied on a text message sent to Ms Sredojev by the Applicant, apparently on 22 August 2025 in which the Applicant said he would be unable to work for a period of time for "personal reasons", without elaboration.[20] It was suggested that had the Applicant and Ms Sredojev truly discussed the matter beforehand, one might expect some elaboration in that message.[21]

[14] Secondly, the Respondent sought that the Applicant concede that it was in fact apparent to him on 12 September 2025 that his employment had been terminated. He did not make that concession.

[15] Thirdly, the Respondent sought to explore whether the Applicant was aware that group messages sent from a Samsung phone might appear without the group context but rather be received as individual messages on an iPhone, such as the one he was using. The Applicant said he was not aware of that and had not experienced that.

[16] As noted above, the Applicant replied to the communication notifying him of his termination within a day. Irrespective of whether the Applicant was truly in two minds as to whether he had been terminated when he requested "some clarification" and "follow up" in response to the letter advising of his termination, the objective fact is that he had been terminated at that time. That being the case, that e-mail constitutes at least some action that the Applicant has taken to dispute his dismissal.

• [17] Likewise, the Applicant's e-mail to the employee relations department of the respondent on 6 October 2025,[22] which requested that his "recent termination and post-complaint experience be reviewed by someone outside my direct reporting line" is correctly viewed as an effort to dispute his dismissal. Although that message expressed a desire to "resolve this professionally and internally before seeking external advice", the Applicant lodged his unfair dismissal application on the same day.

[18] The fact that the Applicant had put the Respondent on notice that the termination was disputed will factor in the Applicant's favour in the overall consideration of the extension of time application. It should be noted however that the fact that Applicant was apparently capable of disputing his termination in that way was raised by the Respondent in submissions as a counterpoint to the Applicant's claims as to his lack of capacity and understanding following his dismissal.

[19] The 9 day delay in this case is not so extensive as to lead to a presumption of prejudice. Nonetheless, the Respondent took the view that prejudice might be visited upon it because one of the key people involved in the management of the complaint, that was said by the Applicant to be the complaint in response to which he was dismissed, was no longer employed by the Respondent. It was additionally said by the Respondent that the recollections of other witnesses will deteriorate over time, and this may give rise to prejudice. The Applicant submitted that documentary evidence remained available.

[20] There is clearly a difference between the unavailability of a witness in an absolute sense and the fact that a potential witness is no longer employed by the Respondent. It must also be remembered that the extent of delay in this matter adds relatively little to the time that would be taken to prepare the matter for hearing either in an eligible court or by arbitration. Furthermore, the claim that the Applicant has articulated is one that alleges adverse action during employment (including in response to the complaint) as well adverse action in the form of dismissal in response to that complaint. Those elements of the Applicant's intended claim are not subject to the 21 day time limit that applies to the making of the present application.

[21] Self evidently, the granting of an extension of time disadvantages the Respondent in the sense that it neutralises the strategic advantage that the mere lateness of the filing arms the Respondent with, but that can hardly be said to be exceptional. The Respondent' submits that the issue of prejudice is at most a neutral factor. I regard the issue of prejudice to be neutral in my considerations.

• [22] In determining this extension of time application, the parties have not been required to provide detailed evidence on the merits of the substantive matter. This would not have been an appropriate course. Rather, the instant task insofar as it concerns the merit of the matter is to determine whether the Applicant can establish the matter is not without merit.[23]

[23] Having had regard to the Applicant's application and discussion at the hearing, it is evident that the essence of the Applicant's substantive case involves adverse action in the form of dismissal and adverse action in other forms. Insofar as the dismissal is concerned, the allegation is that it was motivated in part by a complaint the Applicant made concerning bullying and harassment.

[24] The Respondent does not dispute that the complaint was made, however submits that the claim is without merit. It takes the view that the decision maker in respect of the Applicant's termination was a co-complainant in that complaint, so it is inherently implausible that such complaint was factor motivating the dismissal decision. The Respondent raises others matters that it says motivated the dismissal. The Respondent also faintly suggests that the Applicant's claim of a contravention of Part 3-1 of the Act is a recent invention by the Applicant, responsive to his discovery that he was ineligible to proceed with an unfair dismissal application due to being unable to satisfy the minimum employment period.

[25] There is evidently a factual dispute between the parties which informs the position taken on the merits. For my part I do not need to resolve those facts. The claim as articulated to me is not without merit, but much will turn on the resolution of those contested facts. It is not appropriate in these circumstances to treat the merits of the Application as other than a neutral matter.

[26] The parties were agreed that this was neutral factor in my considerations, and I take it as such.

[27] I am required to determine whether any of the matters identified above, either individually or collectively, are sufficient to establish exceptional circumstances and whether such exceptional circumstances warrant the exercise of my discretion to extend time for the making of the application.

[28] In the circumstances of this matter, with other matters being neutral, the key factors in my consideration are that the Respondent was on notice that the Applicant disputed his termination, and the reasons for delay. The reasons for delay require careful consideration.

• [29] As to the Applicant's third explanation for the delay, a lack of awareness of legal rights is not considered an explanation that - without more - assists the finding of exceptional circumstances in the Applicant's favour.[24] The second explanation, concerning capacity, it will be recalled, was based in part on a reaction to traumatic events in the form of a sexual assault. The material filed by the Applicant in support of this application first mentioned a sexual assault in the reply materials.

• [30] There has in recent times been a greater recognition of the factors that might drive a reluctance to fully engage in reporting or taking enforcement steps in relation to sexual harassment. Such factors and the reluctance it fosters were among the considerations that drove the Australian Human Rights Commission to recommend law reforms that focussed on the prevention of sexual harassment of work, in its well received and impactful Resepct@Work Report.[25] The Respondent for its part acknowledges that trauma arising from a sexual assault should be regarded as an exceptional circumstance. It adds that it has put a lot of effort into its sexual harassment polices and procedures, including training members of its human resources team in trauma informed investigations. The representatives of the Respondent attending the hearing of this matter encouraged the Applicant to get in touch with them, irrespective of the outcome of the present application, to provide details of the allegations he wished to make so that they could be "appropriately and thoroughly investigated with the significance and importance that would need to be relayed to that type of matter".[26]

[31] This encouragement reflected in my view a genuine ignorance on the Respondent's part as to these serious allegations. Clearly, if those matters had been reported to Ms Sredojev as the Applicant suggests, they were not passed on beyond that level. The Respondent was surprised that the Applicant did not raise the sexual assault complaints with Mr Thomas, given that Mr Thomas had investigated a previous complaint of the Applicant's concerning his treatment that led to the staff member about whom the Applicant (and others) had complained electing to resign.

[32] Ultimately, I do not need to make a finding about whether the Applicant did in fact report the sexual harassment he alleges occurred. The sexual harassment was relied on as a cause of a mental state that impaired the Applicant's capacity to lodge this application in time. There was clearly no impairment preventing him from lodging the unfair dismissal claim that he did lodge, still out of time, a week earlier. It follows that any impairment that did exist which precluded the making of an application to the Fair Work Commission had resolved prior to the making of the present application.

• [33] As to the first explanation offered for the delay, it is not seriously arguable the Applicant had any reasonable basis to be confused as to whether he had in fact been terminated, after receiving the email of 22 September 2025. As at that date, he was still within time to lodge an application. If he had genuinely been confused by his status following the receipt of text messages from Ms Sredjodev referred to at paragraph [9] above, he might have responded to them as they were received. But he did not do so until approximately 4 minutes after he had filed his unfair dismissal application. The language of those text messages from Ms Sredjodev was entirely consistent with them being sent to a group rather than only the Applicant, and the Applicant should reasonably have understood that he was receiving messages that should not have included him as a recipient, rather than assuming that maybe he was in fact still employed notwithstanding a clear statement from the Regional Manager that he was not. In any event, the filing of an unfair dismissal[27]pplication27 a week before the present application clearly represents a point in time at which any confusion about that matter had resolved.

[34] I do however accept that the Applicant had a genuine basis, for a short time, to question whether the initial communication to him of the termination of his employment was an error. This is because, as was conceded by the Respondent, the notice of the termination stated that it was motivated by events that did not occur. That is in my view an exceptional circumstance.

• [35] The power to extend time in section 366 of the Act requires a consideration of whether exceptional circumstances exist and, if so, confers a discretion to "allow a further period" to make the application. The further period of time that would be appropriate to allow in this case, taking into account the exceptional circumstances and the Applicant's disputing of his dismissal, would go no further than 6 October 2025, being when the unfair dismissal application[28] was lodged. Such an extension is insufficient to allow the application to proceed. Accordingly, the application is dismissed.

[36] An Order reflecting this decision will be issued separately.

[1] [2018] FWCFB 901

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) [2018] FWCFB 901 at [38]- [39].

[3] [2011] FWAFB 975.

[4] Kurtev v. KCB Australia & Anor [2025] FWCFB 13 at [24], Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [17].

[5] Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [18].

[11] Exhibit A3 at Hearing Book pages 26-27.

[20] Exhibit R8 at Hearing Book page 68, Respondent's F8A at Hearing Book page 41, paragraph 17.

[23] Withers v. Contare [2022] FWC 967 at [33]- [37].

[24] Mundell v. Avon Products [2013] FWC 1368, at [21], Nicolas v. Nortask [2014] FWC 5324 [62].

[25] Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces 2020

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