Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Melbourne Chinese Soccer Association Inc., Mr Danny Chan

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

• [1] On the 4 July 2025, Mr Marcus Day (the Applicant) lodged an application (the Application) pursuant to s 365 of the Fair Work Act 2009 (Cth) (the Act) in which he asserts that the termination of his employment on 29 April 2025 by Mr Danny Chan (the First Respondent) and the Melbourne Chinese Soccer Association Inc. (the Second Respondent) contravened his workplace rights.

• [2] In its Form F8A response, the Second Respondent contends that the Applicant was not an employee and was therefore not dismissed within the meaning of s 386(1) of the Act. It further contends in the alternative that the Application was made outside the statutory 21-day period and that no exceptional circumstances exist that would warrant the granting of an extension of time. For the reasons given on transcript in proceedings on 25 September 2025, I determined to deal with the Application solely on the basis that it has been made outside the required 21-day period prescribed in s 366(2) of the Act and that the Applicant requires an extension of time for the making of it.

• [3] 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 20 May 2025. The Application was therefore filed 45 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s 366(2) of the Act.

• [4] For the reasons given on transcript in the proceedings, I am not satisfied there are exceptional circumstances that would warrant the granting of 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.

• [5] The Application is therefore dismissed. An order giving effect to this decision will be separately issued.

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