s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

• [1] On 6 June 2025, Mrs Bonnie Saunders (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging her employment was terminated by Burrandies Aboriginal Corporation (the Respondent) which occurred on 12 May 2025 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 may allow a further period for the application to be made in exceptional circumstances.

• [3] In her 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 accidentally lodged an unfair dismissal claim thinking that I had selected the general protections button. It was a mistake that I hope does not cost me lodging this successfully. I apologize."

• [4] On 2 July 2025, my Chambers issued a Notice of Listing to the parties advising a Hearing was listed on 23 July 2025 in respect of the extension of time issue and provided Directions for the filing of material.

• [5] On 1 July 2025, the Respondent lodged a Form F8A Employer Response which raised a jurisdictional objection that the application was lodged out-of-time.

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

• [7] The material filed by the parties was collated into a Digital Court Book (DCB) and sent to the parties on 22 July 2025.
• [8] A Determinative Conference (in order to ameliorate my decision with respect to s.596 permission) was conducted via telephone at 12:00pm (SA) Wednesday, 23 July 2025 and was recorded. The Applicant represented herself, the Respondent was represented by Ms McGlynn, permission granted pursuant to s.596(2)(a).

• [9] The Applicant and Mr Brennan gave evidence - no issues of credit arise.

• [10] The relevant evidence is summarised below:

• The Applicant was terminated on 12 May 2025. A letter confirming the termination was provided to the Applicant on 15 May 2025.

• On 15 or 16 May 2025, the Applicant sought legal advice from the Working Women's Centre (WWC). The WWC advised the Applicant to file a general protections application.

• On 1 June 2025, the Applicant filed an unfair dismissal application in the FWC. The Applicant contends she selected the wrong application form at the time of filing by mistake and wasn't aware of the error until contacted by the FWC.

• The Commission's records indicate that on 5 June 2025, the FWC attempted to telephone the Applicant and at 5:25pm emailed the Applicant advising her that it appeared she did not meet the minimum employment period (MEP).

• On 6 June 2025, the Applicant telephoned the FWC to discuss the email sent by the FWC on 5 June 2025. The Commission's records indicate that the Applicant verbally discontinued her unfair dismissal application during the telephone call with the FWC at about 3:30pm on 6 June 2025.

• At 5:53pm on 6 June 2025, the Applicant filed her general protections application.

• There was a dispute over the reason for the termination with the Applicant denying poor work performance and capacity and Mr Brenan denying the termination was due to the Applicant making a complaint about poor treatment and/or bullying.

(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."

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

• [13] 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."

• [14] 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."

• [15] 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."

• [16] The Applicant's employment was terminated on 12 May 2025. The Applicant was aware of the dismissal on the day it occurred.

• [17] The application is 4 days out-of-time and can only be pursued if an extension of time is granted.

• [18] The Applicant filed an unfair dismissal application within the time permitted.

• [19] The reason for the delay relied upon by the Applicant was that her filing of an unfair dismissal application (as opposed to a general protections application) on her mobile phone on 1 June 2025 was a mistake. The Applicant stated it was always her intention to lodge a general protections application as per the advice she received from the WWC.

• [20] The Applicant first became aware of the mistake when she was advised by the FWC on 5 June 2025 that she did not meet the MEP requirements for an unfair dismissal application.

• [21] Having become aware that the application filed was not a general protections application, the Applicant discontinued her unfair dismissal application by telephone at 3:30pm on 6 June 2025 and filed a general protections application about 90 minutes later.

• [22] Error in initial application may constitute an exceptional circumstance. In Lane v Kangaroo Island Dive & Adventures Pty Ltd[6] SDP O'Callaghan granted an extension of time in circumstances where the applicant had made an application within the statutory timeframe using the incorrect application form, with that error only detected seven days after the initial lodgement.

• [23] More recently in Ms Chun Man Lo v BSK Management Pty Ltd, DP Cross granted an extension of time in similar circumstances to this matter where the Applicant incorrectly filed an unfair dismissal application (in time) and later a general protections application in circumstances where the applicant did not meet the MEP.[7]

• [24] I note the Applicant's unfair dismissal application was filed within time. I note that having been made aware of the error, the Applicant filed the correct application within 24 hours.

• [25] This factor is a significant consideration in favour of the granting of an extension of time.

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

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

• [27] The Applicant filed an unfair dismissal application in the FWC on 1 June 2025, within the 21-day period. This is action taken to contest the dismissal.

• [28] 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)

• [29] 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]

• [30] The Respondent submits there is prejudice as a result of the time and cost associated with defending the application. I am not persuaded that any prejudice would have been greater than if the claim had been filed on time. Accordingly, prejudice is a neutral consideration.

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

• [31] 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

• [32] 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."

• [33] 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.

• [34] Having taken into account each of the factors referred to in s.366(2)(a)-(e), I am persuaded that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for a General Protections remedy may be lodged by the Applicant, and I so order.

• [35] On 23 July 2025, I conducted a conciliation conference following the extension of time hearing. The matter was unable to be resolved. Accordingly, a Certificate will issue pursuant to s.368 of the Act.

[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] Lane v Kangaroo Island Dive & Adventures Pty Ltd [2010] FWA 3939.

[7] Ms Chun Man Lo v BSK Management Pty Ltd - [2025] FWC 132.

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

[11] [2016] FWCFB 6963.

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