s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - Application made outside of statutory time limit - No exceptional circumstances - Application dismissed

• [1] On 23 November 2025, Ms Meghan Hird applied under section 365 of the Fair Work Act 2009 (Cth) for the Fair Work Commission to deal with a general protections dispute involving dismissal. Ms Hird resigned from her employment, but says that she was forced to do so by her employer's conduct, such that it was a dismissal.

• [2] Section 366(1)(a) requires general protections dismissal applications to be made within 21 days after a dismissal takes effect. In her application, Ms Hird said that the dismissal took effect when her employment ended on 17 September 2025. There is no confusion about the date. So, Ms Hird's application was made 67 days after the dismissal took effect and 46 days after the end of the above statutory period. The Commission may only allow further time for an application to be made if satisfied that there are exceptional circumstances, taking into account the factors in s 366(2) of the Act.

• [3] In accordance with the Commission's new processes for general protections matters, the Commission has not served Ms Hird's application on her former employer (the respondent). I gave Ms Hird with an opportunity to provide me with more information. Having reviewed the application and Ms Hird's further information, I do not consider that there are exceptional circumstances and cannot allow further time for the application to be made. I do not consider it is necessary to hear from the respondent. I dismiss Ms Hird's application.

• [4] Most of the factors in s 366(2) are neutral in this matter; that is, they neither weigh in favour nor against a finding of exceptional circumstances. Ms Hird did take action to dispute her dismissal, as she wrote to her employer before her employment ended. She provided a copy of her correspondence to me; it is an offer to resolve the matter, but it also clearly puts the employer on notice that Ms Hird challenges the ending of her employment. The delay of 46 days is significant; it is more than twice the statutory period. However, the delay is not so long as to cause any prejudice to the employer's ability to respond to the application. In relation to the merits, Ms Hird must first overcome the hurdle of persuading the Commission that her resignation was a dismissal within the meaning of s 386 of the Act. Despite the difficulty of having to establish that the resignation was forced and that she had no real or effective choice, I cannot say based on the materials available to me that her arguments are entirely without merit and so this factor is neutral in my consideration. I am not aware of any relevant matters nor prior cases with sufficiently similar facts, so the factor relating to fairness as between the applicant and other persons in a similar position is also neutral.

• [5] I do not consider that Ms Hird has provided acceptable reasons for the delay. The delay does not include the period from the date of the dismissal to the end of the 21-day period, although the circumstances from the time of dismissal may be relevant in determining whether there is a reason for the delay beyond the 21-day period and whether that reason weighs in favour of a finding of exceptional circumstances: see Long v Keolis Downer [2018] FWCFB 4109 at [40].

• [6] Ms Hird's reasons were that first, she had received incorrect advice about whether she was able to bring an application, second, she was engaging in efforts to resolve the matter with her employer directly and third, she is a secondary carer for her father who has early onset advanced dementia. Last, Ms Hird argued that the reasons, taken together with the reasons that she says forced her resignation, could be viewed as exceptional.

• [7] Ms Hird provided me with a high-level summary of the advice she received that she says was incorrect and which misdirected her away from making this application. I do not agree that the advice was incorrect (she was correctly informed that she had not completed a minimum period of employment in order to be protected from unfair dismissal). The key issue for Ms Hird, however, is that she received this advice before the expiry of the statutory time period. She did not provide evidence of any other advice she received, nor when she learned of the time limit, nor anything that related to the period after 8 October 2025 (which was 21 days after her employment ended).

• [8] While I do not wish to discourage parties to potential proceedings from attempting to resolve matters directly with each other, Ms Hird was informed in clear terms on 2 October 2025 (within the statutory time period) that the employer did not wish to accept any proposals to resolve the matter. Ms Hird filed this application on 23 November 2025. Her attempts to resolve the matter do not explain the delay between 8 October and 23 November 2025.

• [9] I have a great deal of sympathy with the challenges of caring for an aging, unwell parent. I accept that it is distressing and affects a person's mental and emotional capacity. Ms Hird provided me with evidence about her father's ill-health, but this was general and did not go to the period of the delay. Further, other than an assertion, Ms Hird did not provide me with any evidence about how her capacity to complete and lodge the fairly simple Form F8 was affected.

• [10] Last, I have considered whether the above reasons taken together, as well as the circumstances that Ms Hird said forced her resignation and the emotional and financial distress of job loss, are acceptable reasons for the delay that could weigh in favour of a finding of exceptional circumstances. I am not satisfied that even when taking all the matters together, there is an acceptable reason for the delay of 46 days.

• [11] As I am not satisfied that there are exceptional circumstances, I cannot allow further time for Ms Hird's application to be filed.

• [12] I order the Ms Hird's application for the Commission to deal with a general protections dispute involving dismissal under FWC Matter number C2025/11817 be dismissed.

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