Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal -jurisdictional objection - application made outside of 21-day time limit - no exceptional circumstances - application dismissed.

• [1] On the 29 August 2025, Mr Kevin Shari (the Applicant) lodged an application (the Application) pursuant to s. 365 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment on 13 June 2025 by AMES Australia (the Respondent) which he asserts contravened his workplace rights.

• [2] Section 366(1) of the Act states that a general protections dismissal dispute application must be made 'within 21 days after the dismissal took effect', or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 366(2) of the Act. The period of 21 days ended at midnight on 4 July 2025. The Application was therefore filed 56 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s 394(3) of the FW Act.

• [3] Following allocation of the matter to my Chambers on 25 September 2025, Directions were issued to the parties for the filing of material in relation to the jurisdictional issue of the Application being out of time. Both parties filed material in advance of the hearing listed for 20 October 2025. At the hearing, the Applicant appeared and gave evidence while Ms Kirsten Sullivan of Maddocks Lawyers was granted permission to appear on behalf of the Respondent pursuant to s 596(2) of the Act. Ms Sullivan called Respondent employee Mr Luke Whinney, the Senior Manager Employment Services - Victoria, to give evidence for the Respondent.

• [4] The Respondent provides employment services. The Applicant entered into an employment contract[1] (the Employment Contract) with the Respondent dated 21 March 2025 and commenced employment as an Employment Mentor on a full-time basis on 26 March 2025. He was based at the Respondent's Craigieburn office where he reported to Ms Rashi Gupta who is the Service Delivery Manager - Craigieburn. The Applicant's base salary on commencement was $70,561.00 on top of which he received superannuation. His duties were set out in a Position Description[2] which was attached to the Employment Contract. His on-going employment was subject to a 3-month probationary period in accordance with clause 2.1 of the Employment Contract.

• [5] Mr Whinney gave evidence that Ms Rashi had reported to him regularly of concerns she held over the Applicant's performance. Concerns reported to Mr Whinney included the quality of the Applicant's record keeping of client interactions, not maintaining regular contact with clients, and booking appointments at times he was directed not to do so[3]. Mr Whinney also referred to various email correspondence from Ms Gupta to the Applicant on 10 & 16 April, 9, 19 & 27 May 2025 that raised concerns regarding a range of matters including timekeeping, failing to book in future appointments for non-attendance clients, inadequate client attendance record keeping, task prioritisation and focussing on work rather than using his mobile phone during work hours[4].

• [6] The Applicant states that during his employment, Ms Gupta instructed him to engage in conduct that was both unethical and unlawful. He says this included being directed by Ms Gupta to record vulnerable clients, who were attending rehabilitation and experiencing withdrawal symptoms, as having been present at compulsory meetings so that the Respondent could claim financial benefit from Work for the Dole and related programs. He further claims he was also instructed to falsify program participation records of a client subject to an apprehended violence order (AVO), who had known issues of alcohol dependency and was suffering from severe mental illness. He says that following his refusal to follow these instructions, he was subjected to coercion, hostility and intimidation, including exclusion from workplace support and pressure to comply with unlawful directions[5]. The Applicant also states that at no time during his employment was he subject to any complaint, performance review or disciplinary process.

• [7] Mr Whinney states that if the Applicant had any issues with Ms Gupta, he was expected to try and resolve them directly with her and that if unable to resolve the concerns he could then escalate matters to Mr Whinney. According to Mr Whinney, at no stage did the Applicant raise any complaints or issues with him regarding directions he may have received from Ms Gupta. Mr Whinney further sates that Ms Gupta also advised him that the Applicant had not raised any concerns directly with her[6]. The Applicant rejects Mr Whinney's evidence, refers to having never met or worked with Mr Whinney who does not work in the Craigieburn office and describes Mr Whinney's evidence as hearsay[7].

• [8] Mr Whinney states that based on on-going concerns regarding the Applicant's performance, the Respondent decided to terminate his employment during the probationary period. He says that on 13 June 2025, he and Ms Gupta met with the Applicant, Ms Gupta advised the Applicant that he was not performing the role to the expected level and that the decision had been made to terminate his employment with immediate effect. According to Mr Whinney, the Applicant was afforded an opportunity to ask any questions or respond to any of the matters raised by Ms Gupta[8]. Mr Whinney agreed in cross examination that the Applicant raised an issue during the termination meeting in relation to a client he had been required to book in for a meeting despite his concerns. A letter confirming the termination of the Applicant's employment dated 13 June 2025[9] was provided to the Applicant by the Respondent's Human Resources team.

• [9] Following his dismissal, the Applicant sent a number of emails[10] to the Respondent between 16 June and 4 September 2025. The emails sent were as follows;

• On 16 June 2025, the Applicant sent an email to the Respondent's enquiries email address and Ms Gupta - both of which stated: "I intend to initiate legal proceedings" in relation to matters arising with respect to his employment. In one email he further stated: "This matter is time-sensitive" and in the other: "Please treat this request as urgent".

• On 17 June 2025, the Applicant sent a further email to Ms Gupta which stated: "I am currently seeking legal representation and intend to serve formal papers shortly. I kindly request that you provide the contact details of AMES' legal representative or confirm whether legal correspondence should be directed to the General Manager, People and Development, Catharine O'Grady, as mentioned".

• Between 29 July 2025 and 30 July 2025, the Applicant sent Ms O'Grady a number of emails in relation to the service of his Magistrates' Court claim.

• On 5 August 2025, the Applicant sent an email to Ms O'Grady in which he sought to put his view on the record about why his employment was terminated.

• On 4 September 2025, the Applicant sent Ms O'Grady an email, in which he asked the Respondent to consider engaging in a "without prejudice discussion".

• [10] The Applicant states he took 'prompt action' to dispute his dismissal by bringing a claim in the Magistrates Court believing that was the correct forum to address the Respondent's conduct[11]. He accepted however in cross examination that he was aware at the time of his dismissal, having undertaken some research, that he was also able make a general protections application. He agreed that he had decided to prioritise the Magistrates' Court application. His claim in the Magistrates Court was lodged on 18 July 2025 in proceeding number CI - 250135286 in which he alleges the Respondent has breached;

• the Fair Work Regulations 2009 (Cth);

• the Long Service Leave Act 2018 (Vic);

• the Occupational Health and Safety Act 2004 (Vic);

• the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic);

• AMES' duty to provide a psychologically safe workplace.

• [11] On 29 August 2025, Mr Shari attended a Pre-Hearing Conference in relation to the Magistrates' Court claim. Immediately following the Pre-Hearing Conference, Mr Shari lodged the Application on 29 August 2025, and a medical certificate dated that same day. He stated during cross-examination that it was only at that point (29 August 2025) that he felt capable of managing two concurrent legal processes. The Magistrates' Court Claim remains on foot, and Mr Shari has been directed by the Magistrate to file an Amended Complaint by no later than 15 October 2025.

• [12] The Applicant states that in the wake of his treatment and dismissal he suffered acute trauma symptoms, including dissociation, anxiety and loss of sleep. He says these symptoms continue to impact him and has required professional intervention, He further claims that he was unable to manage two complex legal matters concurrently and relied on two medical report provided by Dr Chris Olszewskj who is his treating doctor. The first dated 29 August 2025 states as follows;

I am the treating doctor for Mr Kevin Shari, who has been under my care for stress-related symptoms.

During the period immediately following the termination of his employment, Mr Shari experienced significant psychological distress, including anxiety and situational stress. These symptoms were exacerbated by the pressure of ongoing legal proceedings and personal circumstances, which materially affected his capacity to function and to attend to administrative or legal matters.

In my professional opinion, Mr Shari's mental health condition during this period impaired his ability to lodge an application with the Fair Work Commission within the required 21-day timeframe. His delay in lodging the application is consistent with the nature and severity of the symptoms he was experiencing.

I respectfully request that the Commission take Mr Shari's medical condition into account as an exceptional circumstance when considering the late lodgement of his application.

This letter is provided in support of Mr Shari's health and wellbeing, and to ensure he is afforded a fair opportunity to have his matter considered without further harm to his mental state.

• [13] A further medical report from Dr Olszewskj dated 1 October 2025 was also provided which stated as follows;

I have treated Mr Kevin Shari for trauma-related symptoms since June 2024.

At the time of his dismissal, Mr Shari presented with dissociation, anxiety, and stress symptoms which significantly impaired his capacity to engage with complex legal processes and meet strict deadlines.

In my professional opinion, these symptoms would have prevented him from filing an application within 21 days, and constitute a reasonable explanation for the delay.

• [14] When questioned on the medical reports, the Applicant conceded that the reports do not refer to an incapacity to manage two concurrent legal processes but claimed that his GP was aware of the Applicant's condition and inability to manage two applications prior to 29 August 2025.

• [15] Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute if an application is made under s 365. For an application to be validly made under section 365, it (the application) must be made within 21 days after the dismissal took effect; or such further period as the Commission allows pursuant to section 366 of the Act.

• [16] The Act allows the Commission to extend the period within which a general protections dismissal dispute application can be made only if it is satisfied that there are 'exceptional circumstances.' 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 nor unprecedented, nor even very rare.[12] 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.[13]

• [17] The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [18] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(b) any action taken by the person to dispute the dismissal;

(c) prejudice to the employer (including prejudice caused by the delay);

(e) fairness as between the person and other persons in a like position.

• [19] 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. I now turn to consider these matters in the context of the Application.

• [20] As earlier stated, for the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 4 July 2025. The delay is the period commencing immediately after that time until 29 August 2025, although circumstances arising prior to that day may be relevant to the reason for the delay.[14]

• [21] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[15] An applicant does not need to provide a reason for the entire period of the delay although 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; 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. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[16].

• [22] The Applicant contends that he was unable to file his application at an earlier time because of his mental state in the wake of his dismissal. He submits that the medical records support his contention that his condition made it extremely difficult for him to manage more than one legal process at a time and that he was not capable of pursuing both the Magistrates' Court proceedings and a Fair Work Commission application simultaneously. The Applicant's submissions are rejected for the following reasons.

• [23] Firstly, Dr Olszewskj was not available to be cross-examined on his medical opinion. The medical reports do not identify a medically diagnosed condition but refer to symptoms the Applicant was suffering from at the time. The medical reports opine that the Applicant may have been unable to file the Application within the 21-day time period. I also note that the first medical report was dated 29 August 2025, 56 days after the expiry of the statutory 21-day filing period and is not contemporaneous to the stated period of incapacity.

• [24] Secondly, the Applicant has misrepresented the medical opinion of Dr Olszewskj. Neither the 29 August or 1 October 2025 medical opinions make reference to the inability of the Applicant to manage two concurrent applications as claimed by the Applicant. In fact, the medical opinions make no reference to the Magistrates' Court application at all. They opine that the Applicant's mental health 'significantly impaired his capacity to engage with complex legal processes and meet strict deadlines'. That opinion cannot however be reconciled with the Applicant's ability to initiate proceedings in the Magistrates' Court while claiming to be unable to file the Application in the Commission.

• [25] Thirdly, the Applicant filed the Magistrates' Court application on 18 July 2025. If it is to be accepted that the Applicant was unable to deal with complex legal processes up to that time, any argument by the Applicant as to his incapacity must fall away at that point. No evidence was provided for the further filing delay between 18 July and 29 August 2025 beyond the Applicant's claim that he was unable to manage two applications at the same time prior to 29 August 2025.

• [26] Fourthly, Dr Olszewskj reports that he has been treating the Applicant for 'trauma-related symptoms since June 2024' which was before the Applicant commenced employment with the Respondent. There is no evidence that the Applicant's condition referred to by Dr Olszewskj impacted on his work attendance or work performance more generally while employed by the Respondent.

• [27] Finally, the Applicant was able to regularly engage with the Respondent by email following his dismissal, the first contact following his dismissal being on 16 June 2025 in which he raised his intention to pursue legal action against the Respondent. In that correspondence he also revealed his awareness that initiation of legal proceedings was 'time sensitive'. This correspondence was followed by further email communication on 17 June, 29 & 30 July, 5 August and 4 September 2025. The Applicant's capacity to engage with the Respondent in that period cannot be squared with his claimed incapacity or with the medical opinion provided by Dr Olszewskj.

• [28] I am satisfied having regard to the above that despite the medical opinion proffered by Dr Olszewskj which was unable to be tested in cross-examination, the Applicant demonstrated a capacity to engage directly with the Respondent as well with complex legal proceedings. This included an awareness of the time sensitive nature of initiating legal proceedings. That the Applicant chose to prioritise his Magistrates' Court application was not due to his lack of awareness of his right to pursue a general protections application. I am not satisfied that the Applicant's mental health was so compromised that he was unable to prepare and file his application at an earlier time than 29 August 2025. Even taking the medical evidence at its highest, the state of the Applicant's mental health might explain the delay up to 18 July 2025 but does not explain the delay in filing the Application after that day. All of these circumstances weigh against a finding of exceptional circumstances.

• [29] The Applicant submits that he took 'prompt action' in filing his Magistrates' Court application on 18 July 2025. I do not accept that submission as the 21-day filing period for a general protections dismissal application in the Commission had already passed on 4 July 2025. Nevertheless, I accept that the Applicant did dispute his dismissal both in email communication with the Respondent and by the Magistrates' Court application. This evidences his capacity to research and pursue legal action. The Applicant's attributed the belated filing of the Application to his ability to manage two concurrent legal proceedings from 29 August 2025. I found this explanation unconvincing for the reasons set out above in dealing with the reason for the filing delay. In all of these circumstances I find the action taken by the Applicant to dispute his dismissal to be a neutral consideration.

• [30] The Application was filed 56 days outside of the 21-day period. The Respondent submits that it would suffer prejudice if the matter were to proceed because it is also still dealing with the Applicant's Magistrates Court application. I accept that the Respondent being forced to expend time and resources on two matters dealing with the same factual circumstances, combined with the length of the delay in the filing of the Application would cause prejudice to the Respondent if an extension of time were to be granted. This weighs against an extension of time.

• [31] As to the merits of the application, both parties filed materials in support for their respective cases on merits. The Applicant alleges he made complaints about being directed to falsify records and to coerce vulnerable clients and that the adverse action taken against him was in response to those complaints. The Respondent rejects that the Applicant made any such complaints or that he was directed to falsify client records or coerce vulnerable clients. The Respondent also contends the Applicant has not properly identified a workplace right or protected attribute. The Respondent submits that the operative reason for the Applicant's dismissal was that his performance was not up to an acceptable standard which led the Respondent to terminate his employment during the probationary period.

• [32] In applications of this kind, being interlocutory in nature, it is inappropriate to express a concluded view about the merits of an application. Nor is it possible to thoroughly test the disputed claims. In any event, in applications under s.365, the Commission's function at this stage of an application is to convene a conference, not determine the merits. It is sufficient for present purposes to note that on the material available to me, the Applicant has an arguable case as to a contravention of the general protections provisions of the Act, albeit it does not appear strong. The Respondent has raised a prima facie defence. I consider the merits to be a neutral consideration.

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

• [33] 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 application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

• [34] Having regard to the matters I am required to take into account under s 366(2) of the Act, and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2) of the Act. Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.

[1] Exhibit R1, Witness Statement of Luke Whinney, dated 15 October 2025, Annexure LW-1, Employment Contract, dated 21 March 2025

[2] Exhibit R1, Annexure LW-2, Position Description

[4] Exhibit R1, at [12], Annexure LW-3, Bundle of emails from Rashi Giupta to Applicant

[5] Exhibit A1, First Witness Statement of Kevin Shari

[7] Exhibit A2, Second Witness Statement of Kevin Shari, at [4]-[7]

[9] Exhibit R1, Annexure LW-4, Termination of Employment letter, dated 13 June 2025

[10] Exhibit R1, Annexure LW-1, Applicant email correspondence to Respondent post termination

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

[14] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

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

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