Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal-application filed outside of statutory requirement-not satisfied exceptional circumstances-application dismissed.

• [1] Jake Bartolo commenced employment with Randstad Pty Ltd on or about 6 January 2025. He was employed in the position of a Recruitment Consultant.

• [2] The reason given by the Respondent for the decision to terminate the Applicant's employment was that they decided not to continue his employment after probation.

• [3] The Applicant has made a general protections application involving dismissal under section 365 of the Fair Work Act 2009 (the Act). That application was lodged on 4 August 2025.

Application was filed outside the statutory timeframe

• [4] General protections applications involving dismissal must be made within 21 days after the dismissal took effect.

• [5] The applicant asserted the dismissal took effect on 11 July 2025. However, the evidence is that he was told on 3 July 2025 that his employment had ended, he did not work after that date and was paid one week notice in lieu.[1] Where payment in lieu of notice is made the dismissal usually takes effect immediately.[2] There is no reason in evidence to suggest the dismissal did not take effect on 3 July in the usual manner. I'm satisfied the effective date of termination is 3 July 2025.

• [6] Based on a termination date taking effect on 3 July 2025, the application should have been lodged by no later than 24 July 2025.

• [7] The application was therefore lodged outside of the time prescribed. The application was made in effect, 11 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which a general protections application involving dismissal may be made if it is satisfied that there are exceptional circumstances.

• [8] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 366 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

• [9] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
  • the reason for the delay,
  • any action taken by the Applicant to dispute the dismissal,
  • prejudice to the Respondent including prejudice caused by the delay,
  • the merits of the application; and
  • fairness as between the Applicant and other persons in a similar position.

• [10] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. 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. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.[3]

• [11] 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 or unprecedented, nor do they need to be very rare.[4] I must be satisfied that, taking into account section 366, there are exceptional circumstances.

• [12] I now consider these matters in the context of the Application.

• [13] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. 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.[5]

• [14] The only reason advanced by the applicant for the delay was in his Form F8 as follows:

'I had been in communication with Randstad trying to request for a letter detailing the reason for termination which they have never provided me, so that I may use this as evidence.
> >
> > To this date I still have not been informed as to the reason, though I was fired a day after giving a formal complaint about another consultant. I was also awaiting other information including non payment of bonuses which I believe was also part of the reason for my termination as I was due for a 2000 dollar bonus this month (august)'.[6]

• [15] An email in evidence suggests the Applicant was in fact told of the reasons for his dismissal.[7] The applicant confirmed during the hearing that he was told the reasons on the day of the meeting on 3 July.

• [16] This is not an acceptable reason for the delay. The applicant was capable of lodging the application within the timeframe without a further letter detailing the reasons for his dismissal.

• [17] The day before the hearing the applicant provided a further witness statement which added a further explanation for the delay:

'Finally, as explanation for my delayed application, I was unaware that I had grounds to litigate, until receiving the attached Breach of Obligation form from Milkayla on 1.8.2025.

Upon receiving this, knowing that I had not breached any post contractual obligations, I sought advice from a family member who works in employment law, who advised me of potential breaches of general protections laws based on Randstad's inability to fix my IT issues which had been documented, discriminatory behavior based on my own personal illnesses and my termination within close proximity of a formal and documented complaint. Once advised of this, I processed my hearing immediately after. The delay of application was purely due to ignorance of law as I was under the impression that I could not file for unfair dismissal within probationary period.'[8]

• [18] Ignorance of the ability to lodge an application or ignorance of the time frame for lodgement is not an acceptable reason for delay.

• [19] On the day of the hearing the applicant provided a further reason for the delay, that being that his mother-in-law was diagnosed with terminal cancer during July which deeply affected him. I accept that his would have had an effect on the applicant. However, it is not a satisfactory explanation for the delay, particularly given that the applicant was clearly able to engage in email correspondence with his employer about various matters during July.[9]

• [20] In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

b) Action taken by the Applicant to dispute his dismissal

• [21] Turning next to the question of the action taken by the Applicant to dispute his dismissal. The evidence was that the applicant requested a further letter detailing the reason for termination. Beyond that activity there is no other action taken to dispute the dismissal.

• [22] This could be considered on a generous construction of the term to be action taken to dispute the dismissal, but only marginally so.

• [23] In the circumstances, that is a matter that is neutral.

• [24] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an applicant for an extension of time.

• [25] The respondent made no submissions as to prejudice and I'm not satisfied there is any prejudice to the employer.

• [26] In the circumstances, that is a matter that is neutral in this case.

• [27] As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me.

• [28] The applicant asserts that he was terminated because he lodged a formal complaint with his employer "regarding another consultants activity and poaching of my clients".[10] The applicant also made complaints about his workload and about an IT issue. It appears that the applicant asserts that the raising of these complaints or enquiries was the reason, or part of the reason, for the termination.

• [29] The employer's position is that the applicant was terminated for not following reasonable management directions, such as logging information in the system, failing to come close to meeting the activity benchmarks, and not completing the sales plan on market maps.[11]

• [30] Whether the applicant's case would succeed or fail will be determined based on the evidence. On the limited material, the applicants claim is not without merit. However, it is not of sufficient merit to weigh in favour of the applicant and is a neutral factor.

e) Fairness as between the Applicant and other persons in a similar position

• [31] As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. 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 involving dismissal application.

• [32] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [33] Statutory time limits that are applicable to the exercise of a person's right to bring an application for general protections involving dismissal are an expression of the Parliament's intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

• [34] A person who makes a general protections application involving dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 366 of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

• [35] As I have indicated, the lack of acceptable or reasonable explanation for the delay weighs against the applicant. All other factors are neutral.

• [36] In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for a general protections involving dismissal remedy made by the Applicant is dismissed. An order[12] to that effect will separately be issued.

[1] Digital Hearing Book (DHB), page 39.

[2] Siagian v Sanel Pty Limited [1994] IRCA 2 (27 May 1994), [(1994) [1994] IRCA 1; 122 ALR 333 at p. 355].

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

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

[8] A1 Applicant's additional statement of evidence received 23 September 2025.

[12] PR792126.

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