s.365 - General protections

Application made under s.365 - application for an extension of time - application dismissed.

• [1] On 18 September 2025, Mrs Nicole Carty made a general protections application involving dismissal to the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act), by lodging a Form F8 - General Protections Application Involving Dismissal. Mrs Carty asserts that she was dismissed by We Are Gracie Pty Ltd (Respondent) and that the dismissal took effect on 10 June 2025. In its Form F8A - Response to General Protections Application (Form F8A), the Respondent outlined its objection to Mrs Carty's application on two grounds. Firstly, it objects on the basis that the application was lodged out of time and secondly, it disputes the assertion that Mrs Carty was dismissed.

• [2] In Coles Supply Chain Pty Ltd v Milford (Milford)[1] the Full Federal Court considered whether, in a general protections application involving dismissal, the Commission was always required to determine a jurisdictional objection that there has been no dismissal, when an out of time objection is also made. The Full Court observed as follows:

[59] As discussed later in these reasons, there may be cases where the FWC may avoid drawing a conclusion as to whether or not an employment relationship has ended in circumstances that amount to a dismissal, and proceed to determine an application for an extension of time on the assumption that it has so ended. But on an application for an extension of time, ascertainment of the length of the delay between the date that the relationship ended and the expiration of the statutory time limit must be identified.

[86] In an appropriate case, it may also be permissible for the FWC to determine that the employment came to an end on a particular date without deciding whether or not the applicant was "dismissed" with the meaning of s 386 of the FW Act. In such a case it may be permissible to refuse to grant an extension of time even assuming, for the employee's benefit, that there was indeed a dismissal.

• [3] These observations from Milford were recently considered by a Full Bench of the Commission in Graham Taylor v Department of Justice and Community Safety[2] in the context of an unfair dismissal application made under s.394 of the Act. Relevantly, I consider that it can be discerned from the observations of the Full Court in Milford that an "appropriate case" in which it will be permissible for the Commission to assume that employment came to an end on a particular date, without deciding whether or not the applicant in question was "dismissed" within the meaning of s.386 of the Act, will be one where an employee has alleged dismissal and the purported employer maintains there has been no termination on its initiative. The Full Court in Milford at [59] also considered it plain that that the length of a delay, which I consider is to be understood as commencing from the expiration of the 21-day time limit,[3] must be ascertainable in order for the Commission to determine an application for an extension of time. In this case, there appears to be no dispute as to when Mrs Carty's work under a particular placement for the Respondent ceased, with both the parties agreeing that there was a discussion in relation to this which occurred on 10 June 2025. Having regard to Milford, I consider it permissible for me to proceed to determine Mrs Carty's application for an extension of time assuming, for her benefit, that there was a dismissal on 10 June 2025.

• [4] Section 366(1)(a) requires a general protections application involving dismissal to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2). Mrs Carty's asserted dismissal occurred on Tuesday 10 June 2025. The 21-day period ended, therefore, at midnight on Tuesday 1 July 2025 and Mrs Carty's application was lodged 79 days late, on 18 September 2025. For the application to proceed, Mrs Carty requires an extension of time. The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in ss.366(2)(a) to (e).

• [5] The material before the Commission indicates that the Respondent is an agency providing nannying services to client families and that it had been engaging Mrs Carty as a casual employee to perform nannying services to one of its clients on an engagement from 9 April 2025. During the 10 June 2025 discussion between the parties, it was conveyed to Mrs Carty that her services were no longer required by the client. The Commission's records reveal that Mrs Carty initially made an unfair dismissal application on 25 June 2025.[4] In the Form F8 - General Protections Application Involving Dismissal lodged on 9 July 2025 (First Form F8),[5] Mrs Carty asserted the following in relation to her unfair dismissal application:

"I was originally told by the FWC to lodge an unfair dismissal claim, This was dismissed because I hadn't been employed for the minimum time. My appointment with the legal representative was after the 21 days. However I was then told about general protections claims and it was recommended that I go ahead and lodge with extenuating circumstances."

• [6] There is no record of Mrs Carty "originally" having been "told" by the Commission to lodge an unfair dismissal application. The Commission's records instead indicate the following:

1. At 3.45pm on 7 July 2025, a telephone call was made from the Commission to Mrs Carty. A file note of the discussion records that the dates of Mrs Carty's employment were confirmed and the Commission advised that an email would be sent regarding the minimum employment period. The file note also records that Mrs Carty was "also sent the GP-Dismissal macro via text as it may be enlivened in A's situation" and that Mrs Carty had stated that she would like to read all the information before making a final decision regarding discontinuance and relodging because she was (by then) outside of the 21 day lodgement period.

1. At 3.48pm on 7 July 2025, the foreshadowed email was sent by the Commission to Mrs Carty, stating:

"On 25 June 2025, we received your application saying you were unfairly dismissed by We Are Gracie.

We phoned you on 7 July 2025 because the information in your application shows that you might not have worked for the minimum employment period.

The minimum employment period is the amount of time you must have worked for your employer before you can make an unfair dismissal application. There is more information on the next page.

• You told us that you were employed on 9 April 2025
• You told us you were given notice of your dismissal on 10 June 2025

To continue with your case, you need to show that you worked for the minimum employment period.

The deadline for providing this information is 21 July 2025.

If we don't hear from you by then, it's very likely your case will be dismissed without further notice.

If you and We Are Gracie are able to resolve your case without our help, or if you want to discontinue your case for any other reason, please let us know as soon as you can. Send us a completed Form F50 Notice of discontinuance or:

• Call us on 1300 799 675
• email lodge@fwc.gov.au
• write to us by post. Details are on our contact us webpage.

• 3. On 9 July 2025, Mrs Carty lodged the First Form F8[6] and the Commission's records indicate that this application was subsequently identified as giving rise to a s.725 multiple applications issue.

1. A Commission file note made in relation to the unfair dismissal application records an inbound telephone call from Mrs Carty at 10.00am on 12 August 2025 regarding "multi-apps." The file note records that Mrs Carty was informed that s.725 of the Act operates to prohibit multiple applications and that her general protections application involving dismissal would be invalid. The file note then detailed dialogue concerned with whether or not Mrs Carty had previously discontinued her unfair dismissal application and Mrs Carty advised she would "check further to ensure whether discontinuance had been made or not and provide callback."

1. A further Commission file note was made in relation to the unfair dismissal application detailing that a return telephone call was made to Mrs Carty at 10.05am 12 August 2025 regarding "multi-apps" and that she was informed that the Commission records indicated that no clear discontinuance had been provided. It was further recorded that Mrs Carty stated that she wished to complain because the "discontinuance process was not made clear to her." The record continued by detailing that it was suggested to Mrs Carty that "when informing of MEP, we [the Commission] explain eligibility and provide opportunity to discontinue over phone" and that the Commission records indicated that Mrs Carty had stated that she wanted to read further information "prior to discontinuance."

It was then confirmed with Mrs Carty that the 7 July 2025 correspondence had been sent regarding the minimum employment period with details of how to discontinue. The file note recorded that Mrs Carty then confirmed discontinuance of both the unfair dismissal application and the general protections application involving dismissal and stated her intention to re-lodge a general protections application involving dismissal.

The file note concluded by recording Mrs Carty's request for a copy of her previously lodged Form F8A and a commitment from the Commission to provide this to her.

1. At 11.53am on 12 August 2025, email correspondence sent to the parties confirmed that Mrs Carty had decided to discontinue her unfair dismissal application.

• [7] As to the reason(s) for the 79-day delay (s.366(2)(a)), the Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, however all the circumstances must be considered.[7]

• [8] It is clear that when she completed the First Form F8 on 9 July 2025, Mrs Carty had formed the view that her unfair dismissal application had been "declined" because she had not served the minimum employment period. Mrs Carty was, however, incorrect. The unfair dismissal application had not been "declined", with the Commission's contemporaneous records from 7 July 2025 indicating that Mrs Carty had been notified about the minimum employment period issue, invited to address it prior to 21 July 2025 and alerted to the alternate option of discontinuing the unfair dismissal application. It was also recorded on 7 July 2025 that Mrs Carty "had stated that she would like to read all the information before making a final decision regarding discontinuance and relodging."

• [9] It also is clear from the text of the First Form F8 that Mrs Carty knew, as of 9 July 2025, that if she chose to discontinue her unfair dismissal application and make a general protections application involving dismissal instead, she would require an extension of time. When completing the First Form F8, Mrs Carty said that she knew that any general protections application involving dismissal would be made out of time and she would have to rely on "extenuating circumstances."

• [10] Further, I am satisfied that when completing the First Form F8, Mrs Carty would have been alerted to the fact that the Commission might not be able to deal with a general protections application involving dismissal from her if she had already started another case about her dismissal. This is because there is information outlined at the point where a Form F8 - General Protections Application Involving Dismissal form asks a prospective applicant whether they have started any other claims and advises that information about multiple cases is available on the Commission's website.

• [11] I accept Mrs Carty may not have had prior experience with unfair dismissal applications, the general protections provisions, the operation of s.725 of the Act or dealing with the Commission processes and the 21-day time period. Ultimately, however, I do not consider that these considerations form an acceptable or reasonable explanation for the delay. It is well established that ignorance of one's rights will not usually provide an acceptable explanation for a delay in lodging an application within the time prescribed[8] and unfamiliarity is not exceptional. Having to weigh options and decide upon a course of action is a dynamic routinely confronted by prospective applicants and while they are doing so, the Commission is very accessible, with extensive publicly available information to assist prospective applicants.

• [12] Nonetheless, even if it was considered that Mrs Carty's confusion or lack of knowledge about the operation of s.725 of the Act forgives the first 42 days of the 79-day delay period until 12 August 2025 (the point at which she discontinued both the unfair dismissal application and her first general protections application involving dismissal), it was still a further 37 days before this application was made on 18 September 2025.

• [13] Mrs Carty sought to explain at least part of this 37-day period in some handwritten notes within her second Form F8 dated 1 September 2025, which stated:

"I only recently found out that I needed to close my unfair dismissal claim before lodging general protection - so am relodging. I have also had depression, caused partly by not being to [sic] access work through We are Gracie."

• [14] I do not accept this. On 1 September 2025, Mrs Carty had not "recently found out" these requirements. As detailed above, there had been information available to her as early as 7 July 2025 and notwithstanding the fact that Mrs Carty had been given specific advice on 12 August 2025, a further 20 days passed before Mrs Carty signed the second Form F8 on 1 September 2025. While Mrs Carty sought to account for this delay by disclosing she was suffering from depression which had necessitated an increased dosage of medication, I am not persuaded Mrs Carty's depression was a material, debilitating factor. Mrs Carty had been able to make the two earlier applications, and she had been able to engage with the Commission in relation to them. I also consider that the time taken to complete the second Form F8 would not have been extensive, given that the only respects in which it differed from the First Form F8 were the abovementioned handwritten notes and her new signature.

• [15] Having signed the second Form F8 on 1 September 2025, it took another 9 days before Mrs Carty posted it. A copy of the envelope that conveyed the second Form F8 indicates that it was posted by ordinary mail on 10 September 2025 and received by the Commission on 18 September 2025. This was one day outside Australia Post's aspirational delivery range of 3-5 business days, which is dependent on the points of origin and destination.[9] This method of delivery was within Mrs Carty's control. She chose ordinary mail. There is no record held by the Commission that indicates that Mrs Carty lodged or attempted to lodge the second Form F8 electronically (as had been the case with the First Form F8). Mrs Carty provided no particulars or evidence that persuades me that electronic lodgement had been attempted or had occurred.

• [16] In my assessment, the various reasons for Mrs Carty's delay weigh against a conclusion that there are exceptional circumstances in this case.

• [17] As to the other mandatory considerations, I accept that Mrs Carty disputed the asserted dismissal during the conversation on 10 June 2025, twice attempted to contact the Respondent in the immediate aftermath and made the two earlier applications referred to above (s.366(2)(b)). This factor therefore weighs in favour of an extension. Secondly, I do not consider there to be any prejudice to the Respondent associated with the delay in this case (s.366(2)(c)) and consider this to be a neutral factor. Thirdly, Mrs Carty did not raise, and nor do I consider there are any matters that are relevant to fairness between Mrs Carty and other persons in a like position (s.366(2)(e)). I consider this also to be a neutral factor.

• [18] As to the merits (s.366(2)(d)), Mrs Carty submitted that she was dismissed in contravention of Part 3-1 of the Act because of a physical disability and a temporary absence from work because of an injury. The Respondent contends that the cessation of Mrs Carty's engagement with the client family was due solely to the family's request. The Respondent also disclosed that it has maintained Mrs Carty on its books, offering her the opportunity to apply for other placements and take up casual shifts. The merits of the case would depend on factual findings made by a court after hearing the evidence. I am not able to make any firm assessment of the merits. Because I do not consider the merits to tell for or against an extension of time, I regard them as a neutral consideration.

• [19] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s.366(2), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is dismissed.

[1] [2020] FCAFC 152; (2020) 279 FCR 591.

[2] [2025] FWCFB 173.

[6] This application, C2025/6631, was subsequently discontinued by Mrs Carty by telephone on 12 August 2025 before it had been served on the Respondent.

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

[9] Delivery speeds and coverage - Australia Post

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