s.365 - Application to deal with contraventions involving dismissal

Application relating to dismissal involving alleged general protections contraventions - extension of time - whether exceptional circumstances exist - extension refused.

[1] The applicant in this matter, Mr. Hanley, has made an application under s.365 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission to deal with a dispute involving what the applicant alleges is a dismissal involving contraventions of the general protections provisions in Part 3-1 of the Act. It was not in issue that the applicant was dismissed by the first respondent, Newcastle Stevedores Pty Ltd (Newcastle Stevedores) and that the dismissal took effect on 16 September 2025. The present application was filed on 11 November 2025 which is 35 days outside the 21-day time limit prescribed by s.366(1)(a) of the Act. Mr. Hanley has sought an extension of time pursuant to s.366(1)(b) on the basis that there were exceptional circumstances that would justify an extension of time. Newcastle Stevedores opposes the granting of an extension of time.

[2] By consent, the application for an extension of time has been determined on the papers.

[3] The Commission can only allow an extension of time if it is satisfied that there are exceptional circumstances taking into account the matters in s.366(2). Those matters are: the reason for the delay, any action taken by the applicant to dispute the dismissal, prejudice to the employer (including prejudice caused by the delay), the merits of the application and fairness between the applicant and other persons in a like position.

Section 366(2) considerations

[4] The applicant was dismissed from his casual position on 16 September 2025 because of an alleged failure to make himself available for shifts over an extended period. On the date of his dismissal, the applicant contacted and spoke to his union representative seeking advice about his termination. He sent a detailed email to the representative setting out the circumstances of his termination on the same day. Because of a combination of work commitments and illness, the union representative had not responded to the applicant by 30 September 2025. The applicant then sent a follow-up email to the union on 30 September 2025. The following day, a union representative called the applicant and advised him that the official would speak with the union's legal officer about the applicant's situation.

[5] On 3 October 2025 the applicant again emailed the union to say that he had heard nothing from the legal officer and that the applicant needed to file an application with the Commission before the expiry of the 21-day limitation period. On 5 October 2025, that is 2 days before the expiry of the 21-day period, and 'fearing that the 21-day deadline would expire without professional guidance,' the applicant filed an unfair dismissal application under s.394 of the Act. On 13 October 2025 the applicant emailed his union representative again asking for a response.

[6] At some point after that, the applicant spoke with someone he described as 'specifically working in the field.' The unidentified person was also described by the applicant as 'an informed official within the union.' In any event, the applicant was advised by this person and accepted the advice that he should have lodged a general protections claim rather than an unfair dismissal application. The applicant contacted the Commission on 3 November 2025 to change his application to a general protections claim. Further contact occurred on 5 November 2025 when a Commission staff member spoke to the applicant. The applicant called the Commission again on 10 November and was advised by email by Commission staff that if he wished to pursue a general protections application, he had to discontinue the unfair dismissal application. The applicant discontinued his unfair dismissal application that day and filed the current application on 11 November 2025.

[7] The applicant submitted that the delay was caused by a combination of representative incapacity/illness and unintended omission by his union during the critical filing period. I do not accept that representative error satisfactorily explains the delay in this case. The 'delay' referred to in s.366(2)(a) is the period between the final date for filing the application within the 21-day period (in this case 7 October 2025) and the date the application is actually filed. Circumstances prior to the delay can be relevant to explaining the delay.

• [8] The late lodgement of an application due to representative error may provide an explanation for delay and thus support the case for an extension of time[1] however it is well recognised that there is a distinction between a delay caused by the representative where the employee is blameless and the situation where the employee has contributed to the delay.[2] Consideration must be given to the role of the applicant in the circumstances giving rise to the delay.

[9] Although the applicant was plainly having difficulty getting timely advice from the union in the period leading up to the expiry of the 21-day time period, it is also clear from the material that the applicant was aware of the existence of the limitation period. He took steps to commence proceedings within that period and did so. He also waited for the union to respond knowing that there was a deadline to meet. This is not a case of an applicant giving clear instructions to a representative to commence proceedings and the representative failing to act. Nor is it a case of a representative failing to inform an applicant of an applicable statutory deadline.

• [10] The applicant's contact with the union and the formal involvement of the union in the period of the delay is limited. There was a brief email from the applicant to the union on 13 October 2025 and a conversation with someone simply described as 'an informed union official' at some unidentified point after the lodgement of the unfair dismissal application. However, it appears that as a result of that conversation the applicant made a strategic decision to discontinue the unfair dismissal proceedings and commence the present application. That decision and the sequence which followed from it were largely if not completely a result of the steps taken by the applicant himself. Moreover, putting aside the limited period during the 35- day delay in which the applicant was seeking a response from the Commission, much of the period of the delay is unexplained or referrable only to the applicant's decision to change course in pursuit of a different application. A failure to provide a credible explanation for any part of the period of the delay can tend to weigh against a finding of exceptional circumstances.[3] I do not consider that the reasons for the delay proffered by the applicant weigh in favour of a conclusion that exceptional circumstances exist in this case.

[11] It was not in dispute that the applicant contested his dismissal by lodging an unfair dismissal application and did so within the prescribed period. This weighs in the applicant's favour in the overall assessment. The brief period in which the unfair dismissal proceedings were discontinued and the current proceedings commenced does not materially detract from the fact that the applicant contested the dismissal and the respondent was on notice of that fact from 5 October 2025.

[12] If an extension were to be granted, the respondent may be said to have incurred some limited prejudice in having to deal with a reformulated version of the applicant's claim as a general protections matter after the unfair dismissal application was discontinued. There was no evidence as to the scale of any such prejudice. So far as I am aware there are no other relevant persons in a like position to the applicant in relation to which fairness considerations arise. I regard both the issue of prejudice to the employer and fairness as between the applicant and persons in a similar position as neutral considerations here.

• [13] Ordinarily it will not be appropriate for the Commission to embark on a detailed consideration of the substantive case or 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).[4] The applicant alleges his dismissal was related to his exercise of workplace rights, his union membership and his age. The respondent denies that any of these factors were relevant to the decision to end the applicant's employment and that the operative reason was the applicant's lack of availability. It is not possible to come to a view about these matters on the available material. I regard the merits as a neutral consideration.

• [14] 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 nor unprecedented, nor even very rare. Exceptional circumstances may 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 can be considered exceptional.[5] I am not satisfied that there are exceptional circumstances in this matter and consequently there is no basis upon which an extension of time can be granted.

[1] McConnell v A & PM Fornataro t/a Tony's Plumbing Service [2011] FWAFB 466 (Lawler VP, O'Callaghan SDP, Bissett C, 31 January 2011) at para. 35, [(2011) 202 IR 59].

[2] Ibid. See also Robinson v. Interstate Transport Pty Ltd (2011) 211 IR 347, [2011] FWAFB 2728.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [45].

[4] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

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

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