s.365 - Application to deal with contraventions involving dismissal

Application for a general protections dismissal remedy - extension of time - extension not granted - application dismissed.

• [1] Mrs Macalister (Applicant) filed with the Commission an application under s.365 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy against her former employer, Colac Otway Shire Council (Respondent). The application relates to the termination of the Applicant's employment on 23 May 2025. There is no dispute that the termination constituted a dismissal for the purposes of section 386(1)(a) of the Act, or that the dismissal took effect immediately with payment in lieu of notice.

• [2] The application was filed on 3 July 2025. The application was therefore filed 41 days after the dismissal and 20 days outside of the standard time permitted by s.366(2) of the Act. Accordingly, an extension is required in order for the application to proceed. 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:

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

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

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

• [3] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)[1] a Full Bench of this Commission considered the test which appears in s.366(2) of the Act, 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.

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]

• [4] The meaning of 'exceptional circumstances' in s.366(2) was 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]

• [5] The matter before me proceeded by way of determinative conference on 14 October 2025, wherein neither party was represented. The Applicant relied on her application form and a brief letter to me dated 2 September 2025.[4] The Respondent relied upon the response filed to the Application and a written submission (and attachments[5]) dated 23 September 2025. The Applicant was cross examined.

• [6] 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 13 June 2025) and the filing of the application (in this case 3 July 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.[6] 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.[7]

• [7] The explanation advanced by the Applicant related to her mental health. As both parties were unrepresented in the matter and it appeared that the issue of the Applicant's mental health at the relevant time may have been of some significance, I took the step of providing the parties with a copy of the decision of Deputy President Easton in Bianca Mamo v. ICLED Australia[8] prior to the matter coming on for determinative conference_._ That decision provides clear guidance on how the Commission can take into account the experience of mental illness in an assessment of exceptional circumstances in the relevant sense.

• [8] The Applicant's evidence was that the delay in filing her application was due to severe depression and chronic stress, which was said to have "significantly impacted my ability to manage day to day tasks, including pursing legal or administrative action in a timely manner".[9] The Applicant elaborated as follows:

"During the relevant period, I was experiencing mental health challenges that included persistent low mood, fatigue, poor concentration and overwhelming anxiety. These symptoms severely impaired my decision-making, motivation, and ability to seek support or understand the steps required to lodge a formal complaint. As a result, I was not in a mental or emotional state to effectively take action or engage with external processes"[10]

• [9] Under questioning from me, the Applicant confirmed that these comments were descriptions of her emotions rather than reflective of any diagnosis, and in cross examination she said she did not seek any professional treatment. There is no specific medical evidence on the Applicant's incapacity, and accordingly, based on the principles discussed in Bianca Mamo, it would not ordinarily be the case that the Commission could make a finding about the Applicant's capacity to complete and file their application. That does not mean that the Commission could never make such a finding. A case in point is Bandameeda v. Amazon Commercial Services[11] in which a recent Full Bench was satisfied, on the basis of unchallenged evidence in the form of a Statutory Declaration and an unsworn Statement given by the applicant in that matter, that he suffered from significant mental health difficulties which "far exceeded feelings of stress, anger, shock, distress, humiliation or other analogous hurt, which workers commonly experience following a termination of their working arrangements".[12] That finding contributed to a conclusion that there was a reasonable explanation for the delay in that case, which weighed in favour of an extension of time. It must however be recognised that part of the incapacity recognised in that case was at the highest end of the spectrum, in the sense that the applicant was experiencing suicidal ideation.

• [10] Under questioning from me, the Applicant said that the mental health challenges she described took effect immediately after the termination of her employment. Her evidence as to how long these feelings persisted was inconclusive. On the one hand she said that over four weeks there was a progression and that in that period "even simple tasks like even to get out of bed was hard". She said she had never experienced anything like it in her 46 year career. Such a four week period therefore both predates and occupies part of the period of "the delay" as discussed in paragraph [6] above.

• [11] The Respondent submitted that the Applicant's continued employment with other employers was inconsistent with her self-assessment of incapacity. When this was put to the Applicant, she gave evidence that she took time off from her other employment because she "couldn't work with them" and that even when she did go back, she made mistakes because she had lost her confidence. She was unable to give a timeframe as how long she was absent from her other employment owing to her incapacity, but gave evidence that there were no set hours and when she felt she could manage some work, she did. Her evidence was not that she performed no work at all prior to the expiry of the time limit, but rather that she did "a little bit of what should could do" during that period, and that she didn't get to full time capacity until about three or four weeks before the determinative conference.

• [12] The Respondent was right to point out that the Applicant's evidence of her incapacity did not take the form or rise to the level that would ordinarily be expected in a case such as this. It was also right to form the view that there was sufficient time for the Applicant to file her application in circumstances when she did, from time to time during the relevant period at least, have mental capacity to devote to paid employment.

• [13] The difficulty for the Applicant is that whilst I find her to be a credible witnesses as to the fact that she experienced an atypical response to her dismissal, which did have an impact on her mental capacity, the evidence as to the duration of that incapacity is not specific enough for me to form any concluded view as to how long it persisted for at that level. In the circumstances, I find that the Applicant has a credible reason for some part of the delay that occurred in this case. This finding weighs somewhat in favour of a finding of exceptional circumstances.

Action taken by the Applicant to dispute her dismissal

• [14] Other than making this Application, the Applicant's evidence is that she took no further steps prior to filing the second application to notify the Respondent that she disputed her dismissal. I treat this as a neutral factor.

• [15] The Respondent has asserted it would be prejudiced by an extension being granted, by way of a general submission that "memories fade and relevant evidence may become unavailable with the passage of time". The Respondent has not articulated clearly how prejudice arises in this matter in particular. The Applicant's position was that the delay in this case was insufficient to give rise to any prejudice.

• [16] The lack of supporting evidence and lack of specificity in the submissions advanced on this issue are such that I can place no weight on them.[13] The absence of prejudice, as I have found and as unexceptional as it is, does not in and of itself weigh in favour of a finding of exceptional circumstances.[14]

• [17] Self-evidently, the granting of an extension of time disadvantages the Respondent in the sense that it neutralises the strategic advantage that the mere lateness of the filing arms the Respondent with, but that can hardly be said to be exceptional. I regard the issue of prejudice to be neutral in my considerations.

• [18] 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] The Respondent submits that the Application has no merit.

• [19] The termination of the Applicant's employment is said by her to be a breach of the general protections in Part 3-1 of the Act by reason of the fact that she did not receive training she was entitled to receive under her enterprise agreement. Under questioning from me the Applicant confirmed that the reason for her termination as she saw it was that she couldn't do the work required of her because she hadn't been appropriately trained. She confirmed that it was not part of her case that she was dismissed because she asked for the training.

• [20] Taking the Applicant's case at its highest, and assuming both that the relevant enterprise agreement did confer on the Applicant a workplace right to participate in particular training and that the training was not delivered, this says nothing about the reasons for the Applicant's dismissal that would be actionable under Part 3-1 of the Act. I find the substantive case lacks merit. The situation might be different if the ultimate merit test to be applied in this matter was whether the dismissal was "harsh, unjust or unreasonable", but that is not the test that applies to the type of application that the Applicant has brought.

Fairness between the person and other persons in a similar position

• [21] Whilst the Applicant did give evidence that there was an existing employee of the Respondent who felt aggrieved by a lack of training, neither party brought to my attention any matter strictly relevant to this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

• [22] 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.

• [23] Whilst the Applicant has a credible reason for part of the delay, this is to be balanced against the lack of merit in the substantive application. Accordingly, the application must be dismissed.

• [24] An Order giving effect to this decision is published separately.[16]

[1] [2018] FWCFB 901

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

[3] [2011] FWAFB 975.

[5] The attachments were marked Exhibit R1 and appear at pages 16-18 of the hearing book.

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

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

[8] [2021] FWC 3903.

[11] [2025] FWCFB 182.

[13] See Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16].

[14] Ozsoy v. Monstamac Industries [2014] FWCFB 2149 at [38].

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

[16] PR792682.

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