s.365 - Application to deal with contraventions involving dismissal

Application made under s 365 - extension of time - application dismissed

• [1] Remy Khalid Khorchi has made an application under s 365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by his employer in contravention of Part 3-1 of the Act. Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2). Mr Khorchi' dismissal occurred on 7 October 2025. The 21-day period ended on 28‎ ‎October‎ ‎2025 (see s 40A of the Act, and s 36 of the Acts Interpretation Act 1901 as in force on 25 June 2009). The application was lodged on 6 November 2025 - 9 days out of time. For the application to proceed, Mr Khorchi requires an extension of time. The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in s 366(2)(a) to (e).

• [2] As to the reason for the delay (s 366(2)(a)), Mr Khorchi submitted in his F8 Application,[1] that he was not fully aware of Australian legal procedures and, was acting in good faith. He contends that he first tried to resolve the matter directly with his employer and then through the Fair Work Ombudsman.[2] He submitted that he believed that the Ombudsman process was the correct step, but he later discovered that he had used the wrong pathway/form for his situation.[3] He submits that as soon as he realised this mistake, he acted promptly to file the correct application with the Fair Work Commission.[4] He added that the delay was short and was caused by genuine confusion and lack of legal knowledge, not by neglect or inaction.[5]

• [3] Mr Khorchi added further reasons in his submissions regarding extension of time, which included "English language barrier", "high stress due to threats" from his "employer (false accusations, police threats, visa intimidation, unlawful wage withholding)", "financial hardship caused by unpaid wages".[6]

• [4] It is well accepted that ignorance of the existence of a legal right or the timeframe for lodgement associated with that right is not an exceptional circumstance.[7] I do not accept that Mr Khorchi's limited English language skills constitute exceptional circumstances. I note that Mr Khorchi speaks French. Information published by both Fair Work Commission and the Fair Work Ombudsman is available in multiple languages including French, and an interpreter or translation assistance is available on request. Further, there is no evidence before me to indicate that the employer intimidated or threatened Mr Khorchi in any way. Financial hardship also does not justify the delay. The Commission waives application fees where an applicant is experiencing financial hardship, and no specific evidence has been provided to suggest that this prevented the applicant from lodging the Application on time.

• [5] I understand that the time after his employment ended, was difficult and stressful for him. However, I do not accept that these matters prevented or seriously impeded the possibility of timely lodgement of the F8 application form. In my assessment, the reasons for delay weigh against a conclusion that there are exceptional circumstances in this case.

• [6] As to the other mandatory considerations, I do not accept that Mr Khorchi took any substantial action to dispute the dismissal (s 366(2)(b)). It is clear that Mr Korchi made attempts to recover unpaid wages; however, I have seen no evidence to suggest he sought to dispute the dismissal. This factor weighs against the granting of an extension. I do not consider there to be any prejudice to the employer associated with the relatively short delay in this case (s 366(2)(c)), nor do I consider that there are any matters that are relevant to fairness between Mr Khorchi and other persons in a like position (s 366(2)(e)). I consider these to be neutral factors.

• [7] As to the merits (s 366(2)(d)), I do not consider the merits of the present case to tell for or against an extension of time. I regard the merits as a neutral consideration.

• [8] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s 366(2), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is dismissed. I order accordingly.

[6] P.11 of the DCB - Applicant's Submissions.

[7] Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472 at [23]; Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [14].

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