s.365 - Application to deal with contraventions involving dismissal

The Trustee for the Motorcycle Holdings Group Unit Trust Trading AS TeamMoto

Application to deal with contraventions involving dismissal - Application made outside the 21-day timeframe - No exceptional circumstances found - Application dismissed.

• [1] On 2 October 2025, Mr Mohamed Bondok filed an application under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a general protections dispute involving dismissal. The Respondent to Mr Bondok's application is The Trustee for the Motorcycle Holdings Group Unit Trust Trading AS TeamMoto (TeamMoto).

• [2] Mr Bondok's Form F8 states that his dismissal was effective from 28 August 2025. Mr Bondok therefore filed his application 14 days after the 21-day timeframe and is therefore required to seek an extension of time for his general protections application to proceed.

• [3] I conducted a Determinative Conference on 26 November 2025.

• [4] For the reasons given below, I am not satisfied that Mr Bondok has demonstrated that there are exceptional circumstances and therefore do not extend time for Mr Bondok to make his application.

• [5] The matters that I need to consider to be satisfied whether there are exceptional circumstances are:[1]

a) the reason for the delay;

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

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

d) the merits of the application; and

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

• [6] The test to determine whether there are exceptional circumstances is a 'high hurdle,' and one that involves the exercise of discretion.[2] The meaning of "exceptional circumstances" was considered and summarised by the Full Bench in Nulty v Blue Star Group:[3]

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered."

• [7] Mr Bondok says that the reason he filed his application late was because he was waiting on a response from TeamMoto about his request for them to reconsider his dismissal; he was the father of a newborn child; and he was not aware of the 21-day time frame.

• [8] While Mr Bondok may have preferred to wait to hear back from TeamMoto about reconsidering his dismissal before filing his application, he did not need their response in order to file his application on time. I also accept that being the parent of a newborn can be stressful and time-consuming, but it is not an unusual, uncommon, or exceptional circumstance.

• [9] It was Mr Bondok's evidence at the determinative conference that the real reason for his application being filed out of time was because he was not aware of the 21-day time frame to make his application. However, it is well established in the case law that a lack of awareness about the timeframe for lodging an application is not an exceptional circumstance.[4]

• [10] I do not consider that the reasons provided by Mr Bondok for the delay constitutes exceptional circumstances. This weighs against a finding of exceptional circumstances.

Any action taken by the person to dispute the dismissal

• [11] Mr Bondok says that he contacted TeamMoto and asked them to reconsider his dismissal. I consider this to be a neutral factor.

Prejudice to the employer (including prejudice caused by the delay)

• [12] I do not consider there to be any prejudice to TeamMoto caused by the 14-day delay, relative to if the application had been filed within time. I therefore consider this factor to be neutral.

• [13] The Full Bench in Ivan Cowen v Renascent Regional Pty Ltd[5] stated that 'in cases such as this where there is not a full examination of the substantial merits, it is appropriate to make an assessment of the case based on the limited material available through the prism of viewing [the] case at its most favourable.'

• [14] TeamMoto say that Mr Bondok was dismissed because he abandoned his employment. Mr Bondok says that his dismissal was unfair, lacking both proper process and reasonable support from TeamMoto. I consider this factor to be a neutral factor.

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

• [15] No substantive submissions were made by either party. I consider this factor to be neutral.

• [16] Having considered all the circumstances of this matter, and the factors in s.366(2), I find that no factors weigh in favour, four are neutral, and one weighs against an extension of time being granted. I therefore decline to exercise my discretion to grant an extension of time. It follows then that Mr Bondok's application has not been made within time and is therefore dismissed. An Order[6] to this effect will be issued with this Decision.

[1] Fair Work Act 2009 (Cth) s 366(2).

[2] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288at [21].

[3] [2011] FWAFB 975.

[4] [2025] FWC 2950.

[5] [2021] FWCFB 2606 [42].

[6] PR794474.

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