s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - request for an extension of time - no exceptional circumstances - application dismissed

• [1] On 17 May 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 KARLKA RECRUITING GROUP PTY LTD (the Respondent) on 16 January 2024 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 was lodged on 17 May 2025, 466 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 been suffering from a serious intellectual disability known as Schizophrenia for the past many years. I commenced my employment on 8th January 2024 and after a week and two days, my employment was ended at the (DSS) Department of Social Services (contracted by Karlka Recruitment Group Pty Ltd) on 16th January 2024, 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 except only recently in the past 6 months related to another employer.

Due to lack of knowledge and lack of right information about the Fair Work Commission for the past many years and my ongoing serious intellectual disability (Schizophrenia), I was unable to lodge my application online.

On 16 January 2024 my employment was terminated by my Manager EL1, Hayley Hall-Evans, mobile - 0448 536

825. She called me for a meeting in the afternoon together with the Branch Manager at the DSS, Adelaide office

at Level 13, 11 Waymouth street, Adelaide, SA 5000. I discussed with my Team Leader Kristie Alligham at (DSS), Department of Social Services in an informal meeting to seek help in my employment matter, she promised to find me another suitable position inside the agency or resolve the dispute but in the end it was a lie, she betrayed me. The Department of Social Services has manipulated my mind, taken advantage of my poor mental health condition, coerced me and forcibly ended my employment giving an excuse about my poor behaviour at work. When I tried to contact other HR managers at the (DSS) Department of Social Services and Karlka Recruitment Group Pty Ltd via email then they threatened me to block my email address and complain about me to the South Australian Police and asked me to stop harassing them via emails and asking for jobs otherwise they will take legal action against me.

On 17 January 2024, 22 January 2024, 4 February 2024, 12 February 2024, 19 February 2024, 13 March 2024 and 14 March 2024, I contacted via email the Corporate Group of the (DSS) Department of Social Services and asked me to help me get reinstated at DSS but I received a reply from the Manager, Richard Baumgart telling me to apply for future positions advertised online and he declined to help me to get a job at the agency. Richard also said that please be advised that, unless new issues are raised, any further correspondence you send to the Department regarding your previous engagement with the Department will be read and filed, but will not be responded to.

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. This is why all my past employment termination matters are coming back to mind and now I can carefully think and understand that many employers in the past have unfairly ended my employment only because of my poor mental illness.

Please Help me Fair Work Commission, For the past 8 years I have been suffering from an intellectual disability or 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 make (DSS) Department of Social Services (contracted by Karlka Recruitment Group Pty Ltd) accountable for their wrongdoings and unethical behaviour. I am a vulnerable Australian on Centrelink Jobseeker payments, I need serious assistance and justice from you."

• [5] On 5 June 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 3 June 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 out of time objection only.

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

• [9] The Applicant submitted the following matterial:

• Letter related to Mental Health and reply to the Respondent claims in Form F8A 2025
• Dr. Sasa Todorovic Medical Practitioner, G.P., Letter 10th June 2025
• Dr. Emmy Bretag Medical Practitioner, G.P. Letter 10th June 2025
• Termination of Employment Email 16 January 2024
• Psychiatrist Dr Praveen Tripathi 3rd June 2025
• Dr Emmy Bretag Letter 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 April 2020
• Psychiatrist Dr Ravi Kumar Prescription June 2016
• Medical Practitioner, G.P. Dr. Zara Latif Letter 6th June 2025
• Psychiatrist Dr Ravi Kumar Prescription March 2016
• Psychiatrist Dr Ravi Kumar Prescription December 2015
• Dr Zara Latif Medical Practitioner, G.P. Letter 4th June 2025
• Medical Practitioner, G.P, Dr. Prashant Pareek, June 2024 Verification of Medical assessment Form SU684
• 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] The Hearing was conducted via telephone at 4:00pm (SA) Friday, 20 June 2025 and was recorded. The Applicant represented himself, the Respondent was represented by Mr C Pollard (paid agent), permission granted pursuant to s.596(2) of the Act. The Applicant gave evidence.

• [12] The relevant evidence is summarised below:

• The Applicant was employed by the Respondent. The Respondent is a recruiting agency which arranged for the Applicant to perform work for the Department of Social Services - Community Grants Hub. The Applicant was placed with the Department of Social Services from 8 January 2024 to 16 January 2024.

• On 16 January 2024, the Applicant was provided with correspondence from the Department of Social Services which advised he was terminated effective immediately. The Applicant was not offered any further placements by the Respondent.

• The Applicant suggests the dismissal occurred on 16 January 2024. The Applicant was aware of the alleged dismissal on the day it occurred. I note the Respondent contends there was not a dismissal.

• The Applicant performed work the following employers post dismissal:

National Disability Insurance Agency (NDIA): 15 September 2024 to 18 December 2024.

• On 20 December 2024, the Applicant lodged a general protections application (within 21-days) in respect of his period of employment with the NDIA.

• The Applicant advised he contacted the FWC on 4 April 2025 at which time he was informed about capacity to file a general protections application in respect of his medical condition and the ability to seek an extension beyond the 21-day timeframe to lodge a general protections application.

• The Applicant filed his general protections application on 17 May 2025.

• The Applicant relied on his written submissions to explain the delay. Those submission rely upon a 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 contended he was not aware of his capacity to lodge a general protections application on the basis of his medical condition until 4 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 provided general information about the impact of Schizophrenia from unnamed sources.

• [13] 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."

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

• [15] 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."

• [16] 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."

• [17] 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."

• [18] The Applicant's employment ended on 16 January 2024. The application is 466 days out-of-time and can only be pursued if an extension of time is granted.

• [19] The reasons relied upon by the Applicant to explain the delay relate to the impact of his medical condition and lack of knowledge about general protections and subsequently, the capacity to seek an extension to the 21-day time frame to lodge a general protections application.

• [20] 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. In the absence of the relevant doctors being called, I am not prepared to rely on their assertions as to impacts of the on the applicant and his capacity to file. 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.

• [21] The best evidence as to the impact of his medical condition came from the Applicant's written material which appeared to be none other than a Google search of schizophrenia generally. 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.

• [22] The Applicant's claim of being unable to file an application is also inconsistent with his capacity to engage with his employer by email post dismissal.

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

• [24] 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.

• [25] Ignorance of the existence of a legal right or the timeframe for lodgement associated with that right is not an exceptional circumstance.[6]

• [26] Finally, having become aware of the general protections in the Act, and his capacity to seek an extension of time on 4 April 2025 the Applicant waited a further 43 days until his application was filed on 17 May 2025. Whilst I accept that the Applicant was making multiple applications, they appear to be largely a cut and paste and I am not persuaded 43 days was reasonably required to complete this process.

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

• [28] The summary of the High Court's decision in Elisha v Vison Australia[7] related to a personal injury claim and did not assist my determination of this matter.

• [29] The determination of extension of time matters largely turn on the facts, the cases the Applicant referred me to were distinguishable on the facts.

• [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.[8]

• [32] The Applicant corresponded with the Respondent post dismissal and prior to the lodgement of the application through various emails. Whilst the Applicant's email dated 16 January 2024 appears to dispute the dismissal, the Applicant's emails dated 13 March 2024 and 2 April 2024 were focussed on the lack of future offers of employment by the Respondent.

• [33] This factor is a consideration in favour of 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.[9] However, the "mere absence of prejudice to the employer is an insufficient basis to grant an extension of time".[10]

• [35] The Respondent submits there is prejudice in circumstances where the application is significantly out of time.

• [36] Given that the application is 466 days out of time, the period will undoubtedly have a significant impact on the capacity of witnesses to recall the relevant events, 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 and I have scant information about the merits.

• [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[11] 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] I note the Applicant has provided case examples where the FWC granted an extension of time for an Applicant in circumstances where the applicant suffered from schizophrenia and/or other mental conditions. The cases can be distinguished on the facts (including the length of the delay).

• [42] 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.

• [43] 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] [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] [2016] FWCFB 349.

[5] [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] [2024] HCA 50.

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

[11] [2016] FWCFB 6963.

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