s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - Application filed outside of the statutory timeframe - Application dismissed

• [1] On 26 November 2025, Mr Thomas Lawrence (the Applicant) lodged an application under s.365 of the Fair Work Act 2009 (the FW Act) alleging that his employment was terminated on 29 August 2025 by Eleanor Duncan Aboriginal Services Limited (the Respondent) in contravention of the general protections provisions of the FW Act.

• [2] In its Form F8A - Response to a general protections dismissal application, the Respondent raised a jurisdictional objection on the grounds that the application was filed outside of the 21-day statutory timeframe.

• [3] The FW Act provides that an application made under s.365, must be made within 21 days after the dismissal took effect, however, the Commission may allow a further period for the application to be made if there are exceptional circumstances which warrant an extension of time.

• [4] In his Form F8, the Applicant identified that his application was made outside of the 21-day timeframe, and relied on the following reasons for the delay:

(i) The Applicant was unaware of his rights to make a claim relating to his dismissal;

(ii) The Respondent did not clearly explain to him the reasons and rationale for his dismissal; and

(iii) The Applicant was "psychologically damaged by the unfairness of the [dismissal]".

• [5] In its Form F8A response, the Respondent submitted that the reasons relied on by the Applicant fail to establish any exceptional circumstances warranting an extension of time and, therefore, the application should be dismissed.

• [6] On 24 December 2025, the Applicant emailed my Chambers with a further written submission in relation to the merits of his case and stating that the allegations contained in his termination letter are "entirely unfounded and have caused significant psychological distress".

• [7] In relation to this threshold issue of the application being filed out of time, I have decided to determine the matter on the papers.

• [8] Section 366(2) of the FW Act sets out the factors that must be considered when determining whether there are exceptional circumstances warranting the granting of an extension of time. These factors are addressed below.

• [9] The meaning of 'exceptional circumstances' was considered by a Full Bench of the Commission in Nulty v Blue Star Group Pty Ltd,[1] where it was held:

"[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance."

• [10] It is not in dispute that the Applicant's employment was terminated on 29 August 2025. Therefore, his application was filed 68 days outside of the 21-day statutory timeframe.

• [11] As to the Applicant's first reason for his delay in filing, it is well established that ignorance of the law is not an exceptional circumstance justifying an extension of time.

• [12] In relation to the second reason, that the reasons and rationale for his dismissal were not clearly explained to him, I agree with the Respondent's submission that the reasons for the dismissal were clearly set out in the Termination Letter dated 29 August 2025. Relevantly, the Termination Letter provides that the Applicant was dismissed during his probationary period due to:

"• Use of inappropriate and unsafe language with community members.

• Inappropriate workplace comments.
• Failure to follow attendance expectations."

• [13] As to the Applicant's claim that he has suffered psychological damage as a result of his dismissal, the Applicant has failed to provide any medical evidence which would support a conclusion that he was so incapacitated that he was unable to file his application for the entirety of the delay. I agree with the Respondent's submission that a self-diagnosis of psychological incapacity is not sufficient to support a finding of 'exceptional circumstances' warranting the granting of an extension of time.

• [14] I find that the reasons for the delay as outlined by the Applicant do not establish an 'exceptional circumstance', and weigh against the granting of an extension.

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

• [15] The Applicant submitted that he has taken action to dispute his dismissal "as soon as [his] rights were explained to [him]".

• [16] As the Applicant has not outlined any steps taken to dispute his dismissal prior to the filing of this application, I find that this weighs against the granting of an extension.

Section 366(2)(c) - prejudice to the employer

• [17] The Respondent submitted that the 68-day delay is a lengthy delay, and therefore gives rise to a presumption of prejudice to the employer.[2] Further, the Respondent submitted that in light of the time of year at which the application was filed, it has suffered prejudice due to law firms and industrial relations firms closing down for the Christmas and New Years period which impacted their ability to seek advice and representation in relation to this matter.

• [18] I consider this to be a neutral factor.

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

• [19] Whilst the FW Act requires me to take into account the merits of the application in considering whether to extend time, in the matter of Kornicki v Telstra-Network Technology Group (Kornicki)[3] the Commission considered the principles applicable to the extension of time discretion under the formers.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

• [20] For the purposes of determining whether to grant an extension of time the Commission "should not embark on a detailed consideration of the substantive case".[4]

• [21] The Respondent submitted that the Applicant appears to have attempted to "shoehorn" an unfair dismissal claim into a general protections claim due to him not being entitled to bring an unfair dismissal application. The Respondent submitted that it dismissed the Applicant solely for the three grounds cited in the Termination Letter, and therefore, this general protections claim lacks merit.

• [22] The Applicant has submitted that as the reasons for his dismissal were not explained to him, he has not had the "right of natural justice". The Applicant has also submitted that his wife is an Indigenous woman and he holds concerns that the allegations set out in the Termination Letter amount to an accusation of racism or culturally inappropriate treatment of a person. The Applicant submitted that these allegations have personal, familial and cultural implications against him.

• [23] I agree with the Respondent that this application appears to be an attempt to 'shoehorn' an unfair dismissal claim into a general protections claim. I find that the application lacks merit, and that this factor weighs against the granting of an extension.

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

• [24] The Respondent cited case authorities where extensions of time were refused by the Commission in similar circumstances to the present matter. The Respondent submitted that if the Commission were to grant an extension of time to the Applicant, it would create unfairness to applicants in similar positions that had been denied extensions of time.

• [25] The Applicant made submissions in relation to fairness generally, maintaining that the Respondent failed to explain the reasons for his dismissal and therefore did not afford him natural justice.

• [26] I consider this to be a neutral factor.

• [27] I am satisfied and find that, for the reasons provided above, the Applicant has not identified any foundation for his assertion that the 68-day delay in filing his application was due to the existence of an exceptional circumstance.

• [28] The application to extend the time for the Applicant to lodge his general protections application is denied.

• [29] The Applicant's general protections application is dismissed.

[1] [2011] FWAFB 975.

[2] Respondent's Form F8A response, citing Mr Asadallah Maghsoodi v Scotch & Soda Barbers Pty. Ltd. [2025] FWC 3869.

[3] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[4] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

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