Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - extension of time not granted.

• [1] Mr Taylor (Applicant) filed with the Commission an application under s. 365 of the Fair Work Act 2009 (Cth) against his former employer, Transurban Limited (Respondent), alleging breaches of Part 3-1 of the Act. It is not controversial that the application relates to a dismissal that took effect on 27 June 2025. The Applicant had been employed in the role of Corporate Counsel.

• [2] The application was filed on 28 July 2025. It was therefore filed 10 days outside of the standard time permitted by s. 366(1). An extension is required in order for the application to proceed.

• [3] Section 366(2) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and

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

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

(d) the merits of the application; and

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

• [4] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)[1] a Full Bench of this Commission considered this test for extending time and said:

[14] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension. A decision whether to extend time under s.366(2) involves the exercise of a discretion.

• [5] Furthermore, the Full Bench in that case described the task of discerning exceptional circumstances in a manner that was not consistent with a mere "tick a box" approach to the enumerated considerations, but rather involved an evaluation taking into account matters of weight and degree.[2]

• [6] The meaning of 'exceptional circumstances' in s.366(1) was also considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) as follows:

'[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.'[3]

• [7] The matter before me proceeded by way of hearing on 14 November 2025, wherein the Respondent was granted permission to be represented. The Applicant relied on a witness statement from himself with annexures[4] and an outline of submissions. As the submissions were largely narrative in nature and phrased as a first-person account, they were also marked as evidence in the proceeding.[5] The Respondent relied on a witness statement from Ms Turner[6], to whom the Applicant reported during his employment. Ms Turner' Statement was ultimately tendered without objection and taken as read.[7] The Respondent also relied on the contents of, and annexures to, an unfair dismissal application the Applicant had made in respect of the same employment.[8] The Applicant was cross examined. I have had regard to written material provided and the oral evidence and submissions given at the hearing.

• [8] Where paragraph (a) of subsection 366(2) requires the reason for "the delay" to be taken into account, the relevant delay is to be taken to be the period between the expiry of the time limit (in this case 18 June 2025) and the filing of the application (in this case 28 June 2025), and does not include the period from the date the dismissal took effect to the end of the 21 day period. Nonetheless, events and circumstances preceding "the delay" may be considered for the purposes of determining the reason for "the delay" and ultimately whether that reason supports a finding that there are exceptional circumstances.[9] An acceptable explanation of the entirety of the delay is not required to make a finding of exceptional circumstances, however it is relevant to have regard to whether the applicant has provided an explanation for the entirety or any part of the delay.[10]

• [9] The Applicant's explanation for his delay is that he initially commenced an unfair dismissal application within time, on 16 July 2025. It was not contentious that the Applicant had not met the minimum employment period required for such a claim, and he sought to address this by way of a submission filed with the unfair dismissal application on the mistaken understanding that the minimum employment period requirement was capable of being waived. On 25 July, the Applicant says he made telephone call to the Commission and had a discussion with a member of staff of the Commission who confirmed that the application had been received but that it appeared that he did not meet the minimum employment period. The Applicant says that he directed the member of staff to his request for an exemption from this requirement and asked if that request had been considered. He says he was told that there was no indication of any decision having been made about that issue and that the matter would be reviewed when the Application was formally assessed. He received an e-mail the following day from the Commission, noting that he "might not have worked for the minimum employment period", seeking additional information from the Applicant by 9 August 2025. It also warned that "If we don't hear from you by then, it's very likely that your case will be dismissed without further notice".

• [10] The Applicant sent an e-mail to the Commission the following day, with the stated intention of "withdrawing the unfair dismissal element of the application under Part 3-2", and "to formally proceed only under Part 3-1...as a General Protections dismissal claim". His message said that he was "currently preparing an updated version of the submission to align with the General Protections framework" and sought advice as to whether or when a formal amended version was required. The e-mail concluded with a request to confirm that the claim will now be treated as a General Protections claim involving dismissal and to be informed of whether any further steps were required.

• [11] The Applicant says he was contacted the following day by a member of the Commission's client services team who advised him that an amendment of that nature was not possible and that if he wanted to proceed with a General Protections claim he would need to withdraw his unfair dismissal claim and make a General Protections application. The Applicant says he expressed concern that that this would place the application outside of the 21 day time limit, and was advised that he could address any exceptional circumstances within the new Application. The Applicant filed the present application the same day.

• [12] This is not a case where the Applicant seeks to lay blame on the Commission for misinforming him. Nonetheless, I considered it appropriate to bring to the parties attention he decision of the Full Bench in Hambridge v. Spotless Facilities Services[11], prior to the hearing. That case involved a circumstance where an applicant, Mr Hambridge, had filed one form of dismissal application (a general protections dismissal application) while believing he had made an unfair dismissal application. He was informed of this error during a telephone conciliation relating to the matter, and two days later withdrew the initial application and filed an unfair dismissal claim. At that point, the unfair dismissal application was 55 days out of time and the applicant made an extension of time application, in which he failed at first instance. The Full Bench however took interest in the fact that Mr Hambridge had only been given two options by the Commission - to proceed with his general protections conciliation or withdraw that claim and lodge an unfair dismissal application seeking an extension of time. The Full Bench reasoned that the extent of the applicant's error was to use the wrong form for what was clearly expressed in substance as an unfair dismissal application. In those circumstances, the Full Bench said, it would have been open for the Commission to either waive the irregularity in form or to allow a correction or amendment to address the irregularity. The Full Bench distinguished the decision in Iannnou v. Northen Belting Services[12] on the basis that the correction or amendment concerned in Mr Hambridge's matter would not be an impermissible amendment to convert one kind of dismissal claim into another but rather to address a mere error in form. The Full Bench allowed the appeal and granted Mr Hambridge an extension of time, finding the circumstances exceptional.

• [13] In the present matter, it cannot be seriously contended that the claim the Applicant intentionally brought the first time around was anything other than an unfair dismissal claim. The key allegations of fact were that his termination of his employment was premature under the terms of an 18 month fixed term contract, that his redundancy was not a genuine redundancy under section 389 of the Act due to a failure in consultation and that there had been an error in the calculation of his payment on termination. The only mention of anything potentially arising as a general protections matter was in section 3 of the form under "desired outcomes", in which the Applicant said, inter alia:

"Consideration of general protections, if the Commission determines that my dismissal was influenced by:

• - My exercise of workplace rights (e.g. raising concerns about documentation and clarity); and/or
• - Discriminatory factors such as age or perceived dispensability.
• - Costs, to the extent that the Commission considers it appropriate, including reimbursement of out-of-pocket legal, career, or health-related expenses incurred as a direct result of the dismissal process".

• [14] Whilst the initial unfair dismissal application was accompanied by a detailed submission and a number of annexures, it did not expand upon what had been put in the application form with respect to general protections:

I request that the Commission consider whether the circumstance of my dismissal also give rise to a general protections claim under Part 3-1 of the Fair Work Act 2009 (the Act) including potential adverse action due to:

• - My exercise of workplace rights (such as raising concerns and requesting documentation);
• - Age related discrimination".

• [15] Critically, what was missing from the unfair dismissal application was any actual allegations of material facts that were relevant to a General Protections dismissal claim. Whilst the Commission is not a Court of pleading and strives to be accessible, it still requires in its application forms that an applicant explain the basis of their claim. The Applicant was able to do this in section 2.2 of his General Protections application, and did so in materially different terms to that expressed in his unfair dismissal claim, setting out a factual foundation for why it was the General Protections provisions had been contravened (including for the first time an allegation of dismissal because of family or carer's responsibilities). In contrast, all the unfair dismissal application did with respect to the General Protections provisions was request that the Commission itself inquire into whether there were any facts that could support a finding that the General Protections provisions were contravened. The circumstances of this case are glaringly different to Hambridge.

• [16] What occurred in this case is the Applicant misapprehended that the minimum employment period was not a mandatory and inflexible requirement for an unfair dismissal application and misapprehended that he would be permitted to change track, as it were, by a simple amendment. Thereafter, he brought a fundamentally different claim, and his communication to the Commission stating that he was "..currently preparing an updated version of the submission to align with the General Protections framework" acknowledges this, albeit that such an updated version did not materialise. The Commission staff were correct in advising the Applicant that an amendment was not possible, there was no oversight on their part that led him into an error that caused or compounded the delay. In any event, it is not the responsibility of the Commission to review every dismissal application within 21 days of the claimed dismissal date and advise applicants if a different type of application is warranted.

• [17] I accept, as submitted by the Respondent, that the present matter has some similarities to the matter of Gibbons v. Advan[13] in which Deput President Bell observed:

"...The reason for the delay is, at its heart, due to a belated realisation that the Applicant's unfair dismissal claim was likely to fail because of a jurisdictional requirement. That itself is not exceptional nor, in my view, even particularly remarkable. There are many cases run before the Commission where a dismissal claim fails for a jurisdictional issue but this does not mean that an applicant can commence a different claim on the basis that, had they have known of the jurisdictional difficulties earlier, a different approach would have been taken. Where an applicant seeks to do so, he or she will have to establish 'exceptional circumstances' (in the case of a belated unfair dismissal application or belated general protections claim)."[14]

• [18] It cannot be (and was not) suggested that the Applicant did not act promptly once he became aware of his mistakes. The Applicant maintained that he acted in good faith in first seeking to amend his unfair dismissal application and then in lodging a general protections claim. I accept that is the case.

Action taken by the Applicant to dispute his dismissal

As noted above, the Applicant made an unfair dismissal application within time before making the present application. The application form in the present matter also indicates that the Applicant raised issues around the procedural fairness of his dismissal prior to it taking effect and that he sought redeployment. Ms Turner's Statement included messages between her and the Applicant that made it pellucidly clear that he considered his redundancy was not being handled appropriately.

• [19] The Respondent conceded that it would not be prejudiced by an extension being granted. The absence of prejudice is a neutral factor.

• [20] In determining this extension of time application, the parties have not been required to provide detailed evidence on the merits of the substantive matter. This would not have been an appropriate course. Rather, the instant task insofar as it concerns the merit of the matter is to determine whether the Applicant can establish the matter is not without merit.[15]

• [21] The Respondent submits that the Application has weak merits. Two of the arguments in support of this proposition - that Applicant was not motivated in his initial application by any contravention of the general protections and that current application was responsive to advice from the Commission that the unfair dismissal application was unsustainable - do not speak to the merits of the application at all. I conceive of the application as challenging not only the decision to select the Applicant for redundancy but also to the decision to dismiss rather than redeploy him or accept him for an available alternative position once that selection had been made. Any decision to not accept the Applicant for the alternate roles the Applicant sought once the redundancy decision had been naturally brings about a dismissal. Ms Turner's evidence on the merits goes to the selection issue, but professes a lack of awareness about the handling of the Applicant's efforts to secure an alternate position. Bearing in mind the presumption that the Applicant would ultimately be entitled to under section 361 of the Act, it is not appropriate in these circumstances to treat the merits of the Application as other than a neutral matter.

Fairness between the person and other persons in a similar position

• [22] Neither party was able to make any specific comparisons in relation to this issue. I am not satisfied that this issue is a relevant consideration in the present matter.

• [23] Having taken each of the factors referred to in subsection 366(2), I am not persuaded, on balance, to grant the extension of time sought by the Applicant.

• [24] The Respondent was on notice that the Applicant disputed the circumstances of his dismissal. The Applicant misapprehended the limits of the avenues available to him to challenge his dismissal in the Commission, leading to a delay in filing the present application, and acted quickly once he was disabused of those misapprehensions. The remaining factors are neutral. This turn of events does not rise to the level of exceptional circumstances either individually or collectively so as to enliven the discretion to extend time. This is a conclusion that is comfortably reached without resort to the Respondent's exhortations to apply a higher standard to the Applicant in light of his professional qualifications and history.

• [25] Whilst it is not strictly necessary for me to address it, the Applicant suggested that the Commission's pragmatic accommodation of the Respondent's request for additional time to file its response to the application weighed in favour of an extension being granted. Whilst this submission might appeal to the observer as an appeal to even handedness, the difficulty is that the Act prescribes an onerous statutory test for extensions of time being granted for General Protections applications made under section 365, that is different to the procedural discretion available under Rule 7 of the Fair Work Commission Rules 2024 with respect to compliance matters arsing under the Rules including the time for the lodgement of a response under Rule 65. This precludes the matters from being treated as equivalent.

• [26] An Order reflecting this decision will be issued in due course.[16]

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) [2018] FWCFB 901 at [38]- [39].

[3] [2011] FWAFB 975.

[9] Kurtev v. KCB Australia & Anor [2025] FWCFB 13 at [24], Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [17].

[10] Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [18].

[11] [2017] FWCFB 2811

[12] [2014] FWCFB 6660

[13] [2023] FWC 667

[15] Withers v. Contare [2022] FWC 967 at [33]- [37].

[16] PR794105.

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