Fair Work Act 2009

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 18 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 ORIGIN ENERGY LIMITED (the Respondent) which occurred on 23 March 2022 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 18 May 2025, 1131 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:

"The form may be late. Why is it being lodged late?

I have been suffering from a serious intellectual disability known as Schizophrenia for the past many years. When my employment ended at Accenture Australia on 21 October 2021, 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. I have emailed the Managing Director, People and Culture, Sarah Kruger in 2021 to seek help in my employment matter, she promised to find me another suitable position inside the company but in the end it was a lie, she betrayed me. Accenture Australia has cheated me for many months and years in hope to get me suitable employment. When I tried to contact other HR managers at Accenture Australia then they threatened to 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.

In 2021, I contacted via email the CEO of Accenture Global, Julie Sweets and asked me to help me get reinstated at Accenture but she declined to help me in my employment matter.

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 Accenture Australia accountable for their wrongdoings. I am a vulnerable Australian on Centrelink Jobseeker payments, I need serious assistance and justice from you."

• [5] On 6 June 2025, my Chambers issued a Notice of Listing to the parties advising a Hearing was listed on 19 June 2025 in respect of the extension of time issue and provided Directions for the filing of material.

• [6] On 4 June 2025, the Respondent lodged a Form F8A Employer Response which raised a jurisdictional objection that the application was lodged out-of-time.

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

• [8] The Applicant submitted the following material:

• 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
• Psychiatrist Dr Praveen Tripathi 3rd June 2025
• 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 April 2020
• Psychiatrist Dr Ravi Kumar Prescription June 2016
• Psychiatrist Dr Ravi Kumar Prescription March 2016
• Psychiatrist Dr Ravi Kumar Prescription December 2015
• Medical Practitioner, G.P. Dr. Zara Latif Letter 6th June 2025
• 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 11December 2024

• [9] The material filed by the parties was collated into a Digital Court Book (DCB) and sent to the parties on 17 June 2025. I have received all of the material contained in the DCB by consent and afforded relevant weight to the material based on its relevance and/or admissibility.

• [10] A Determinative Conference was conducted via telephone at 2:00pm (SA) Thursday, 19 June 2025 and was recorded. The Applicant represented himself, the Respondent was represented by Mr Pat Elsley (Manager, Employee Relations).

• [11] The relevant evidence is summarised below:

• On 23 March 2022, the Applicant was dismissed by the Respondent. The Applicant was aware of the dismissal 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 also submitted various clinical notes, many of which appear to be medication prescriptions. Other than Dr Bretag, none of the authors of the medical documents submitted were called to give evidence.

• The Applicant stated that his medical condition resulted in cognitive impairment which affects thinking, memory and decision making.

• Dr Bretag gave evidence concerning the Applicant's medical condition. Her statements dated 8 May 2025 and 10 June 2025 were received into evidence. Dr Bregtag first saw the Applicant on 8 May 2025. She relied on the previous diagnosis of Dr Tripathi. Dr Bretag advised that if a person was experiencing negative symptoms they might feel low, disengaged or have low motivation to advocate. Dr Bretag advised her evidence as to the impact of the Applicant's medical condition was speculative and she had no personal knowledge as to how the Applicant was functioning prior to 8 May 2025.

• 8- The Applicant advised he contacted the FWC on 4 April 2025 at which time he was informed about his capacity to seek an extension of time after the 21-day timeframe to lodge an application had expired. The Applicant suggested that the delay in filing post 4 April 2025 was due to the number of general protections applications he was filing (a total of 7).

• The Applicant obtained and performed work for the following employers post dismissal:

• Allianz Australia September: 2022 - March 2023 Customer Service Officer (receiving calls, collating claim information and inputting this data into the employers claims receival system)

• Origin Energy (LPG services) 20 March 2023 to 21 July 2023

• National Disability Insurance Agency: 15 September 2024 until 18, December 2024

• On 16 May 2025, the Applicant lodged his general protections application.

• [12] During the Determinative Conference, the Respondent referred to a document titled 'Settlement and Release Agreement' which it contended was a bar to this application. The document was provided to Chambers and the Applicant after the Conference, with a further period afforded to the Applicant to respond. The document is relevant as to the merit criteria below. If the Applicant was estopped from pursuing this application, the merits would likely not support the granting of an extension of time.

• [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 was dismissed on 23 March 2022 and was aware of the dismissal on the day it occurred. The application is 1131 days out-of-time and can only be pursued if an extension of time is granted.

• [19] The reasons principally relied upon by the Applicant to explain the delay relate to the impact of his medical condition, his lack of knowledge about general protections provisions and his capacity to file a general protections application out of time.

• [20] 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 his capacity to file his application during the period of delay.

• [21] I accept the Applicant was diagnosed with schizophrenia in November 2020, however there is scant medical evidence as to how the Applicant's medical condition prevented his filing of the general protections application in a timely manner. The general practitioners who expressed a view did not meet with the Applicant until after his application was filed, and did not explain how his condition prevented the application from being made earlier.

• [22] I note that the Applicant's treating Psychiatrist (Dr Tripathi) advised in clinical notes that the Applicant had responded well to treatment, 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 oral evidence 'that his medical condition resulted in cognitive impairment which affects thinking memory and decision making.'

• [23] However, it is difficult to reconcile this 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 engage with the Respondent post dismissal.

• [24] The Applicant's claim of being unable to file an application is also inconsistent with his capacity to correspond with his employer by email post dismissal. The Applicant's emails were of such a volume that the Respondent blocked his email account from its mail server.

• [25] 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 Allianz, further employment with Origin Energy and then NDIA) for some months.

• [26] I do not accept this part of the explanation

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

• [28] 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 application, and that he could seek an extension of time for a late application, until 4 April 2025.

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

• [30] Finally, having become aware of the general protections provisions in the Act, and his capacity to seek an extension of time on 4 April 2025, the Applicant waited a further 42 days until his application was filed on 18 May 2025.The Applicant explains this delay by stating he was making a number of other applications to the FWC (7 in total).

• [31] I do not accept this part of the explanation.

• [32] 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.

• [33] The apparent decision by the Respondent not to make any future offers of employment does not assist my consideration of the extension of time application.

• [34] I am not satisfied with the explanations provided by the Applicant in respect of the period of delay.

• [35] This consideration does not support a finding of exceptional circumstances.

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

• [36] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[8]

• [37] I have reviewed the correspondence between the parties post dismissal. The Applicant corresponded with a number of employees on 23 March 2022. I am satisfied that the correspondence was a complaint in respect of the Applicant's dismissal.

• [38] 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)

• [39] 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]

• [40] The Respondent did not submit prejudice however noted several employees involved in the Applicant's termination are no longer employed by the Respondent but could be contacted if required.

• [41] The application is 1311 days out of time, noting this considerable period will undoubtedly impact witnesses' memory of the events, I am of the view there is prejudice to the Respondent in this matter.

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

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

• [43] The Respondent relies of a document titled 'Settlement and Release Agreement' which it contended was a bar to the making of this application. The Applicant worked for the Respondent for two periods, the first (to which this Application relates) occurred between 31 January 2022 - 23 March 2022, the second period was with Origin LPG Services and occurred between 20 March 2023 to 21 July 2023. I note that the recitals of the Settlement and Release Agreement refer to the period of time with Origin LPG Services. It appears to me that the bar to the taking of proceedings by the Applicant only relates to his second period of employment with Origin and not the period of service that this Application relates to. On that basis, the Applicant was not estopped from pursuing this application and thus the 'Settlement and Release Agreement' has no impact on the merits.

• [44] In terms of the merits of the application, 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

• [45] 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."

• [46] 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.

• [47] I note the Applicant has provided case examples where the FWC found that there were exceptional circumstances where the applicant suffered from schizophrenia and/or other mental conditions. The cases provided are not determinative. The circumstances in this matter are unique.

• [48] 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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