s.365 - Application to deal with contraventions involving dismissal

Application made under s 365 - extension of time - application dismissed

• [1] Mr Gregory Tomlinson has made an application under s 365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by Golding Mining Pty Ltd (respondent) in contravention of Part 3-1 of the Act. Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2). Mr Tomlinson's dismissal occurred on 9 September 2025. The 21-day period ended on 30‎ ‎September‎ ‎2025 (see s 40A of the Act, and s 36 of the Acts Interpretation Act 1901 as in force on 25 June 2009). The application was lodged on 13 October 2025 - 13 days out of time. For the application to proceed, Mr Tomlinson requires an extension of time. The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in s 366(2)(a) to (e).

• [2] As to the reason for the delay (s 366(2)(a)), in his Form F8 Application, Mr Tomlinson submitted that he had trouble getting through to the Fair Work Commission because of "lengthy on hold delays",[1] and he was only able to get through to the Commission on 13 October 2025. He further submitted that he lacks the ability to use technology, does not have a computer, and has dyslexia.[2]

• [3] In his written submissions regarding the Extension of Time, he submitted the following reasons for the delay:[3]

I am a proud First Nations man and on the 24 September 2025, I had lost a very close family member. This person was a prominent Elder within our community and her passing had a major affect on my direct family. Prior to her passing, as a family we were supporting each other and then 'Sorry Business' took place between 24/09/2025 09/10/2025 and this is my reasoning for not actioning request. Memorial Card has been provided below named as attachment (e).

• [4] I am not persuaded by Mr Tomlinson' suggestion that the delay in lodgement was caused because he had trouble getting through to the Fair Work Commissions. The Commission is very accessible to the general public. An application may be lodged via the Commission's website, by submitting a paper-based form in person, or by posting the form to the Commission. It is not necessary for an Applicant to have technological proficiency in order to make an application. The Application form is short, straightforward, and does not require a significant amount of time to complete. While I acknowledge that Mr Tomlinson suffers from dyslexia, the circumstance does not, in the present case, justify a delay of 10 days in lodging the Application.

• [5] I acknowledge Mr Tomlinson's First Nations background and recognise the significance of the loss of an Elder within the First Nations Community. I express my condolences in respect of that loss. However, while I am sympathetic to Mr Tomlinson's circumstances, I do not find that this amounts to an exceptional circumstance explaining or justifying a delay of 13 days in lodging the Application.

• [6] The dismissal occurred on 13 September 2025. The Applicant therefore had a substantial period of time between 13 September 2025 and 24 September 2025 to lodge the Application. In the circumstances, I am not satisfied that the matters relied upon sufficiently account for the length of the delay.

• [7] In my assessment, the reasons for delay weigh against a conclusion that there are exceptional circumstances in this case.

• [8] As to the other mandatory considerations, I do not accept that Mr Tomlinson took other action to dispute the dismissal (s 366(2)(b)). Mr Tomlinson has provided that he contacted Shine Lawyers regarding his dismissal, but they were not able to provide advice to him. I note that lawyers are not needed in order to complete the short, simple form F8. Nevertheless, I do not find this action of Mr Tomlinson indicates any attempt to dispute the dismissal with the employer. This consideration weighs against a conclusion that there are exceptional circumstances in this case.

• [9] I do not consider there to be any prejudice to the employer associated with the relatively short delay in this case (s 366(2)(c)), nor do I consider that there are any matters that are relevant to fairness between Mr Tomlinson and other persons in a like position (s 366(2)(e)). I consider these to be neutral factors.

• [10] As to the merits (s 366(2)(d)), Mr Tomlinson submitted that his employment was "terminated whilst he was on a Medical Certificate".[4] He has provided medical certificates as evidence to support this contention. The employer on the other hand contends that the dismissal was not due to a temporary absence as defined by the Act because Mr Tomlinson has been absent from work for more than 3 months. In fact, it is submitted that Mr Tomlinson has been on unpaid leave since May 2023. The Employer says it was this extended absence that prompted then, in July 2025 to initiate a show cause process with Mr Tomlinson, which they say, resulted in the decision to terminate Mr Tomlinson's employment after concluding that he was not able to perform the inherent requirement of his role.

• [11] Whilst I have not heard any evidence in this matter, having considered the material before me, I consider the Respondent has an arguable case in defence of the allegations as put. Accordingly, I consider that the merits weigh against the granting of an extension of time.

• [12] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s 366(2), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is dismissed. I order accordingly.

[3] P.7 of the DCB - Applicant's Submissions.

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