s.365 - General protections

Application to deal with contraventions involving dismissal - extension of time.

• [1] On 18 September 2025, Ms Maciaga made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a contravention involving dismissal. South-East Monash Legal Service Inc. (SMLS) object to the application on the basis that the application was made out of time. Ms Maciaga was dismissed from her role with SMLS on 6 January 2025 and the dismissal took effect on that day. At the time of her dismissal Ms Maciaga had been employed for less than 6 months.

• [2] Section 366 of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect. Ms Maciaga's application was lodged on 18 September 2025, therefore her application was lodged 225 days after the 21-day time limit. Ms Maciaga requires an extension of time in order for her application to proceed.

• [3] The Application proceeded to a hearing before me on 12 December 2025. At the conclusion of the hearing, I dismissed the Application and informed the parties I would provide written reasons for my decision. For the reasons set out below, I have concluded that I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act.

• [4] Section 366(2) of the Act allows the Commission to extend the period within which an application under s.365 must be made only if it is satisfied that there are "exceptional circumstances". These are circumstances that are "out of the ordinary course, or unusual, or special, or uncommon" but that "need not be unique, or unprecedented, or very rare".[1] The test of "exceptional circumstances" in relation to granting an extension of time to lodge an application under s.365 establishes a "high hurdle".[2] A decision whether to extend time under s.366(2) involves an exercise of discretion. [3] The longer an Applicant delays making an application the more difficult it will generally be to overcome that hurdle. [4]

• [5] In deciding whether there are exceptional circumstances to enliven the discretion to extend time, I am required to consider and give appropriate weight to each of the matters outlined in s.366(2).[5] My consideration of each matter in the context of Ms Maciaga's application for an extension of time is set out below.

Section 366(2)(a)-(e) evidence and considerations

• [6] Ms Maciaga states the reason she was unable to file her application within time was because she suffered a mental health injury as a consequence of a meeting that took place on 26 November 2024 during which her performance was discussed, the alleged bullying she suffered during her employment, and the termination of her employment. In addition, Ms Maciaga states that her mental health was further impacted when her personal relationship with her partner ended in December of 2024. Ms Maciaga says that her condition was further exacerbated by her car breaking down in April 2025. She submits as a consequence of the abovementioned circumstances she suffered from, amongst other things, post-traumatic stress disorder, nightmares, insomnia, and high levels of stress and anxiety.

• [7] Ms Maciaga relies on a letter from her treating psychologist dated 28 August 2025, however the psychologist was not called to give evidence. The written correspondence from Ms Maciaga's psychologist states that Ms Maciaga was not emotionally or mentally able to proceed with the general protections claim lodgement until the 28 August 2025. However, she also states that she had advised Ms Maciaga in January 2025 to seek legal advice and lodge an unfair dismissal claim. Setting aside that the treating psychologist provided erroneous advice as Ms Maciaga was not eligible to make an unfair dismissal application because she had been employed for less than 6 months, the treating psychologist provides no explanation for why she thought Ms Maciaga was capable of seeking and acting on legal advice and making an unfair dismissal claim in January 2025, however she was not capable of making a general protections claim until 28 August 2025. The treating psychologist also states that Ms Maciaga was able to make a WorkCover claim, was able to attend an appointment with a psychiatrist and was capable of attending an interview with a private investigator however, she does not explain why Ms Maciaga was able to engage in those activities but was unable to file a general protections application at that time. I have formed the view that the treating psychologists "professional opinion" appears to be inconsistent with the evidence about Ms Maciaga's capacity and inconsistent with her own advice. Ms Maciaga's oral evidence does not support the "professional opinion" formed by her treating psychologist and does not support a finding that she was not capable of making an application at an earlier date than 28 August 2025. Ms Maciaga had engaged and dismissed a lawyer who was acting for her in other matters involving her assets during her separation from her partner. She subsequently engaged a new lawyer after she had formed the view her previous lawyer was not acting in her best interests, this suggests Ms Maciaga was capable of making decisions in her own best interest. Ms Maciaga also gave evidence that when her vehicle had broken down, she had organised quotes for its repair and lodged a claim online with VicRoads to deregister the vehicle and claim her registration fees back. Ms Maciaga demonstrated that she had the aptitude and capacity to file claims and manage other complex tasks. In addition to Ms Maciaga being capable of making a WorkCover claim, prepare a comprehensive report in support of her claim, attend interviews with the claims investigator, she gave evidence that she had been conducting research to support her father and had engaged with certain cultural community support services on his behalf. Ms Maciaga's oral evidence does not support her claim that she was unable to complete her form F8 at an earlier date. Additionally, I note that Ms Maciaga was able to organise and participate in both overseas and interstate holidays during the period of the delay. As to the treating psychologists "professional opinion" in the letter dated 28 August 2025, I make the following observation, Ms Maciaga gave evidence that she had requested her psychologist provide a letter that stated she was unable to proceed with lodging a general protections application at an earlier time and it appears the treating psychologist has simply complied without providing a proper basis for her "professional opinion". Further, the opinion of the treating psychologist conflicts with her own advice provided to Ms Maciaga. Even if I am wrong about this, Ms Maciaga does not provide a reasonable explanation for the further 21 days it took for her to lodge her application after 28 August 2025.

• [8] I also observe that Ms Maciaga's psychologist provides no diagnosis that would suggest Ms Maciaga was wholly incapacitated during the 225 days prior to her lodging her application. The 28 August 2025 letter from her treating psychologist simply provides that Ms Maciaga was distressed and therefore required sleeping pills and antidepressants from her GP. Whilst I accept the events that took place from the time of Ms Maciaga's dismissal and the events involving her personal circumstances may have been upsetting, I do not consider the distress caused by her termination of employment to be out of the ordinary nor a reasonable explanation for the significant delay in filing her application. I do not consider Ms Maciaga's break down in her relationship with her partner back in December of 2024 or the circumstance of her vehicle breaking down in April of 2025 to be circumstances that are out of the ordinary course that would warrant a granting of an extension of time. I am not persuaded that these matters whether considered in isolation or together to be exceptional circumstances or circumstances that are out of the ordinary and do not warrant the granting of an extension of time.

• [9] Taking into consideration my findings above, I am not persuaded that Ms Maciaga was unable to file her general protections application at an earlier time. There has been a significant delay in the filing of this application, and I am not satisfied that Ms Maciaga has provided a reasonable explanation for the whole of the delay. This weighs against the granting of an extension of time.

• [10] As to the other mandatory considerations, it is not in contention that other than the filing of this application Ms Maciaga made no other attempts to dispute the dismissal. I accept SMLS submission that accepting the application at such a late stage without proven exceptional circumstances for the significant delay would prejudice the employer. I consider these factors to weigh against the granting of an extension of time. Ms Maciaga made no relevant submission pertaining to s.366(2)(e). However, I note that Ms Maciaga had the opportunity to obtain legal advice and was advised by her psychologist to file a claim in the Commission however she did not take any action and instead pursued her WorkCover claim. I would have thought a person in a like position would have acted on the advice at an earlier point of time, especially when they had the capacity to perform the other activities similar to those undertaken by Ms Maciaga. This weighs against an extension of time.

• [11] As to the merits of the application. Ms Maciaga contends that she was dismissed by the Respondent in contravention of s.340, s.341, s.343, s.351, s.385, s.386 and s.50 of the Act. Ms Maciaga submits during her employment she raised concerns regarding workplace behaviour and culture and was subsequently dismissed.

• [12] SMLS denies that it contravened any sections of the Act and submits it dismissed Ms Maciaga in relation to her poor performance and failure to meet inherent requirements of the role during her probationary period.

• [13] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result, the Commission should not embark on a detailed consideration of the substantive application. Accordingly, I have not done so, and I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I find this criterion to be neutral.

• [14] Having considered the evidence and submissions as they relate to each of the criteria set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, Ms Maciaga's application is dismissed.

• [15] An order[6] to that effect will be published separately to this decision.

[1] Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [13].

[2] [2014] FWCFB 2288 at [21].

[3] Halls v McCardle and Ors [2014] FCCA 316.

[4] [2014] FWCFB 2288 at [21].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [18].

[6] PR795002.

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