Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

• [1] On 29 April 2025, Mr Mohd Zair Rizvi (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging his employment was terminated by Bendigo And Adelaide Bank Limited (the Respondent) on 13 December 2018 in contravention of the general protections provisions of the Act.

• [2] The Act provides that an application alleging contravention of general protections made pursuant to s.365 of the Act must be made within 21 days after the dismissal took effect, however, the Fair Work Commission (FWC) may allow a further period for the application to be made in exceptional circumstances.

• [3] The application appears to have been lodged 2308 days out of time.

• [4] In his Form F8, the Applicant identified the Application was made beyond the 21 days from the date of dismissal. The Applicant explained the reason for delay as follows:

"I have suffered from an intellectual disability Schizophrenia for the past many years. When my employment ended at Bendigo Bank on 13 December 2018, I was unwell, stressed, in depression, I was not aware that the Fair Work Commission can help me in my mental illness unfair dismissal matter. I have never been to the Fair Work Commission in relation to unfair dismissal under general protections form F8 due to mental illness. Due to lack of knowledge and lack of right information about Fair Work in 2018 and my ongoing serious intellectual disability (Schizophrenia), I was unable to lodge my application. There were two deaths in my family and I went to India to look after my mother who was hospitalized. From India in 2019, I was emailing my ex employer Bendigo Bank for assistance to re-employ me. Senior HR Manager, Employee Relations, Joanne Cakebread informed me via email in 2019/2020, Jun 3, 2020, 8:11 PM, that I am not banned or blacklisted by the Bank and I am welcome to apply for jobs in future at the Bendigo Bank. I also received an email from the Chief People Officer, Louise Tebbutt of Bendigo Bank on Aug 1, 2019, 2:12 PM that I am able to apply for positions that you feel you may be suited for

at the Bank. In her email, Louise never told me that I am not a suitable candidate to get re-hired at the Bank. The Recruitment Team at the Bendigo Bank has put me in darkness and lied to me that I am a suitable fit for the bank. In actuality, the bank has banned me and already made up their mind to never employ me again in future. But they have never told me about this fact via email.

Today, the Bendigo Bank has emailed me on 29 Apr 2025, 12:28 and made it crystal clear in their email that Bank does not consider me to be a suitable candidate for re-hire because the Bank says that the information I provided to them via multitude of job applications with the Bank contain factually inaccurate information and misrepresentations.

Due to my poor mental health I have accidently made mistakes in my online applications in relation to start and end dates. However, I was living in an impression that Bendigo Bank is still open to re-employ me on merit as advised to me by Joanne Cakebread, Employee Relations Manager. The bank has literally lied to me and has provided me false information and put me in darkness.

Since the last couple of years my mental health condition has been getting better under the treatment of a Psychiatrist, I have been on medication regularly everyday for many years. I suffered from a serious intellectual disability, known as Schizophrenia.

This is why when I apply for future jobs at the Bendigo Bank online I never get an opportunity for an interview because they have indirectly banned me. This information I have come to know only today when the Bank has sent me an email today on 29 Apr 2025, 12:28.

This is why I am making this application outside of the 21 day time to make a general protection dismissal claim. In actuality, the bank has lied to me otherwise I would have lodged this application a long time ago.

Please Help me Fair Work Commission, For the past 8 years I have been suffering from a mental illness and I was unfairly kicked out from many jobs in the past few years. Employers have taken advantage of my mental illness and formed a view to never employ me again and ban me permanently. This is a mental health discrimination under the Fair Work Act 2009.

Please accept my case and please help the Bendigo Bank accountable for their wrongdoings. I am a vulnerable Australian on Centrelink Jobseeker payments, I need serious assistance and justice from you."

• [5] On 21 May 2025, my Chambers issued a Notice of Listing to the parties advising a Hearing was listed on 20 June 2025 in respect of the extension of time issue and provided Directions for the filing of material.

• [6] On 19 May 2025, the Respondent lodged a Form F8A Employer Response which raised two jurisdictional objections, the first being that the application was lodged out-of-time and the second being that the Applicant was not dismissed.

• [7] This decision deals with the extension of time issue only.

• [8] The Applicant filed a submission/statement and supporting material in respect of the extension of time jurisdictional objection made by the Respondent. The Respondent filed submissions.

• [9] Within the Applicant's emails dated 27 May 2025, 5 June 2025, 11 June 2025 and 16 June 2025, the following attachments were provided:

• Letter related to Mental Health and reply to the Respondent claims 2025
• Bendigo Bank - Recruitment 29 April 2025
• Libby Prouse Senior Recruitment Advisor October 2020
• Joanne Cakebread May 2020
• Gmail 3 Libby Prouse Senior Recruitment Advisor
• Gmail 2 Libby Prouse Senior Recruitment Advisor
• Chief People Officer Louise Tebbutt August 2019
• E-ticket- O6M78Y - 09 November 2020
• Quarantine Assistance Health Department October 2020
• Repatriation Deed DFAT October 2020
• Passport - PA8612953 - DFAT October 2020
• Payroll Officer Erika Derby 19 December 2018
• Jo Hodge Email 14 December 2018
• admbn91 - Group Certificate - Account Closure 163 897 663 - May 2019
• Employment Separation Certificate Bendigo Bank 2018
• Termination Advice - Bendigo Bank - 19 December 2018
• Flight itinerary - 24 December 2018 return 31 January 2019
• Employee ID - admbn91 - 17 December 2018
• Dr Emmy Bretag Letter May 2025
• Psychiatrist Dr Praveen Tripathi May 2025
• Psychiatrist Dr Praveen Tripathi December 2024
• Psychiatrist Dr Praveen Tripathi September 2024
• Psychiatrist Dr Praveen Tripathi May 2024
• Psychiatrist Dr Praveen Tripathi November 2023
• Psychiatrist Dr Praveen Tripathi September 2023
• Psychiatrist Dr Praveen Tripathi July 2023
• Psychiatrist Dr Praveen Tripathi June 2023
• Psychiatrist Dr Praveen Tripathi February 2023
• Psychiatrist Dr Praveen Tripathi April 2022
• Psychiatrist Dr Praveen Tripathi November 2021
• Psychiatrist Dr Praveen Tripathi August 2021
• Psychiatrist Dr Praveen Tripathi May 2021
• Psychiatrist Dr Praveen Tripathi 11 April 2020
• Psychiatrist Dr Ravi Kumar Prescription June 2016
• Psychiatrist Dr Ravi Kumar Prescription March 2016
• Psychiatrist Dr Ravi Kumar Prescription 2015
• Verification of medical assessment Form SU684 2024
• Psychiatrist Dr Praveen Tripathi 3rd June 2025
• Dr Zara Latif Medical Practitioner Letter 4th June 2025
• Dr. Sasa Todorovic Medical Practitioner,G.P., Letter 10th June 2025
• Dr. Emmy Bretag Medical Practitioner, G.P. Letter 10th June 2025
• Dr. Zara Latif, Medical Practitioner, G.P.Letter, 6th June 2025
• Psychiatrist Dr Praveen Tripathi 3rd Jun 2025
• Dr Zara Latif Medical Practitioner, G.P. Letter 4th June 2025
• High Court of Australia Decision 11 December 2024

• [10] The material filed by the parties was collated into a Digital Court Book (DCB) and sent to the parties on 18 June 2025. I have received all of the material contained in the DCB and afforded relevant weight to the material based on its relevance and admissibility.

• [11] A Determinative Conference (in order to ameliorate my decision with respect to s.596 permission) was conducted via telephone at 10:00am (SA) Friday, 20 June 2025 and was recorded. The Applicant represented himself, the Respondent was represented by Ms Fairhall and Ms Hodge.

• [12] The relevant evidence is summarised below:

• The Applicant was employed by the Respondent from 8 October 2018 to 13 December 2018. There is a dispute as to whether the Applicant was dismissed or resigned, however the Applicant was aware that his employment ceased on the day it occurred.

• To explain the delay, the Applicant relied upon his diagnosis and associated symptoms of schizophrenia. The Applicant submitted a raft of medical documentation. The only diagnosis of schizophrenia was made by a psychiatrist in India (Dr Tripathi) in November 2020. The document containing that diagnosis is marked 'not valid for medicolegal purposes.' Dr Tripathi was not called to give evidence. The Applicant gave evidence that his medical condition resulted in cognitive impairment, distributed mindset and being perplexed. The Applicant also submitted various clinical notes, largely from Dr Kumar. The content of the documents from Dr Kumar appear to be medication prescriptions.

• The Applicant called Dr Zara Latif (General Practitioner) to give evidence. Dr Latif gave evidence that she first examined the Applicant on 30 May 2025, did not have the qualifications to make/confirm a diagnosis of schizophrenia and was unable to comment on the Applicant's capacity to file a general protections application prior to her first consultation.

• There was a death in the Applicant's family in early 2019 and as a result, he had to travel overseas to India. The Applicant returned to Australia in November 2020. During this time the Applicant corresponded with government agencies including the Department of Foreign Affairs and Trade regarding his return during COVID-19.

• The Applicant contended he was not aware of his capacity to lodge a general protections application until 6 April 2025. This position appeared to morph into a position that the Applicant was not aware of his capacity to seek an extension of time when it became evident that he had filed a general protections application with the FWC in relation to another matter on 31 July 2018 (C2018/4229) and 20 December 2024 (C2024/9290).

• The Applicant advised he contacted the FWC in April 2025 at which time he was informed about the 21-day timeframe to lodge an application and the ability to apply for an extension of time.

• The Respondent blocked the Applicant from applying for future jobs. The Applicant submitted that if he did not have a medical condition, was aware that he was blocked from applying for future employment with the Respondent and was aware of general protections, he would have been in a position to make an application. Having reviewed the explanation of the delay contained in the Form F8, this appears to have been the trigger for the filing of this claim.

• I note that the Applicant applied and performed work for the following employers post dismissal:

Adecco recruitment (Services Australia): January 2021 - September 2022

Origin Energy (two periods of employment) 31 January 2022 - 23 March 2022

• I note the Applicant had the capacity to apply and be successful in obtaining employment post his dismissal and successfully complete his work requirements (in the case of Alliance and Origin Energy) for some months.

• On 29 April 2025, the Applicant lodged his general protections application.

• [13] The summary of the High Court's decision in Elisha v Vison Australia related to a personal injury claim and did not assist my determination of this matter.

• [14] The provision of general information about the impact of Schizophrenia from unnamed sources did not assist me in determining the impact of the Applicant's medical condition on him.

• [15] The apparent decision by the Respondent not to make any future offers of employment to him does not assist my consideration of this matter.

• [16] Section 366(2) of the Act states:

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

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

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

• [17] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant.[1]

• [18] I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[2] which stated:

"[10] It is convenient to deal first with the meaning of the expression "exceptional circumstances" in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression "exceptional circumstances" in s.394(3) and held:

"[5] The word "exceptional" is relevantly defined in The Macquarie Dictionary as "forming an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act."

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[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. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

• [19] The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period.[3] In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,[4] the Full Bench explained the correct approach by reference to the following example:

"[31] For example if an applicant is in hospital for the first 20 days of the 21-day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter."

• [20] An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering the reason for the delay in accordance with s.366(2) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[5]

"[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[44] As mentioned earlier, the 'reasons for the delay' is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances."

• [21] The Applicant's employment ended on 13 December 2018. The Applicant was aware of the dismissal on the day it occurred. The application is 2308 days out-of-time and can only be pursued if an extension of time is granted.

• [22] The reason relied upon by the Applicant to explain the delay relate to the impact of his medical condition, a death in the family resulting in overseas travel and lack of knowledge about general protections and his capacity to file a general protections application.

• [23] Whilst I am prepared to accept the Applicant was diagnosed with schizophrenia in November 2020, there is scant medical evidence as to how it prevented the filing of the general protections application within a timely manner. The General Practitioners who expressed a view did not meet with the Applicant until after his claim was filed, and did explain how his condition prevented the application from being made earlier. None of the medical witnesses gave evidence. I note that the Applicant's treating Psychiatrist (Dr Tripathi) advised that he had responded well to treatment and had stabilised by July 2023 and was in remission in September 2024. The best evidence as to the impact of his medical condition came from the Applicant's evidence that his medical condition resulted in cognitive impairment, distributed mindset and being perplexed. However, it is difficult to reconcile this self-serving evidence, against the Applicant's capacity to successfully apply for alternative roles and perform the role requirements for months at a time, and his ability to lodge general protections applications on 20 December 2024. I have ignored the filing of the 2018 general protections application as this appears to predate the Applicant's medical condition.

• [24] The Applicant's claim of being unable to file an application is also inconsistent with his capacity to correspond with government agencies during his period of overseas travel and engage with his employer by email post dismissal.

• [25] In the course of giving evidence, the Applicant appeared to concede that the primary reason to explain the delay was not his medical condition but his lack of awareness of his capacity to make an application.

• [26] I now turn to the Applicant's knowledge of the general protections provisions and his ability to seek an extension of time.

• [27] The Applicant contended in his written material that whilst he was aware of the unfair dismissal provisions (and the impact of the minimum employment period on his capacity to file), he was unaware of the ability to argue that adverse action taken as a result of his medical condition could be the subject of a general protections claim and that he could seek an extension of time for a late application. His evidence as to his awareness of the general protections provision varied during his evidence, particularly after it became evident that he had made two prior general protections applications in 2018 and 2024.

• [28] In any event, ignorance of the existence of a legal right or the timeframe for lodgement associated with that right is not an exceptional circumstance.[6]

• [29] Finally, having become aware of the general protections in the Act, and his capacity to seek an extension of time on 6 April 2025 the Applicant waited a further 23 days until his application was filed on 29 April 2025. The Applicant contended he was busy filing 7 different general protections applications in this period.

• [30] I am not satisfied the Applicant has explained they delay. This consideration does not support a finding of exceptional circumstances.

Paragraph 366(2)(b) - any action taken by the person to dispute the dismissal

• [31] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[7]

• [32] Whilst the Applicant corresponded with the Respondent post dismissal and prior to the lodgement of the application through various emails, the contents of the emails did not dispute the dismissal and were focussed on seeking alternative employment.

• [33] This factor is a consideration against the granting of an extension of time.

Paragraph 366(2)(c) - prejudice to the employer (including prejudice caused by the delay)

• [34] Prejudice to the employer will weigh against granting an extension of time.[8] However, the "mere absence of prejudice to the employer is an insufficient basis to grant an extension of time".[9]

• [35] The Respondent submits there is prejudice taking into consideration, the application is significantly out of time, the impact on witness memory and where some employees involved in the Applicant's termination are no longer employed by the Respondent.

• [36] Given that the application is 2308 days out of time, the period will undoubtedly have a significant impact on the capacity of witnesses to recall the relevant events and the fact that at least one witness has subsequently left the employment of the Respondent, I am persuaded there is prejudice to the Respondent.

• [37] This factor is a consideration against the granting of an extension of time.

Paragraph 366(2)(d) - merits of the application

• [38] In terms of the merits of the application, I note there is a dispute as to whether the Applicant was dismissed or resigned and whether the Respondent has breached the general protections provisions.

• [39] There is insufficient evidence before me to make an assessment and accordingly, I have regarded the merits as a neutral factor.

Paragraph 366(2)(e) - fairness as between the person and other persons in a similar position

• [40] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[10] considered this criterion and said:

"[41] 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 Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission."

• [41] Accordingly, there is insufficient information to satisfy me the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. As a result, it is a neutral consideration in determining whether to grant an extension of time.

• [42] Having taken into account each of the factors referred to in s.366(2)(a)-(e), I am not persuaded that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant, and I so order.

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

[2] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

[4] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349.

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 3288 at [35]- [45].

[6] Miller v Allianz Insurance Australia Ltd (t/a Allianz) [2016] FWCFB 5472; cited by Marsland v Rasier Pacific

Pty Ltd [2025] FWC 829 and Mensur v Ferguson Environmental Consulting Pty Ltd (t/as Metro Heating and

Cooling) [2025] FWC 557.

[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[10] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963.

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