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[2026] FWC 190
General information, not legal advice.
Fair Work Commission
2026-01-27
Original judgment source is linked above.
s.365 - Application to deal with contraventions involving dismissal
Application to deal with contraventions involving dismissal-whether dismissal -application filed out of time -circumstances not exceptional -application dismissed
[1] Ms Elisabeth Laria (the Applicant) made an application (the Application) to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act), alleging contraventions of the general protections provisions in Part 3-1 of the Act in connection with the cessation of her employment with Harli and Harpa Pty Ltd (the Respondent).
[3] The issue for determination in this decision is whether the Commission should exercise its discretion to grant the Applicant a further period within which to make the Application pursuant to s.366(2) of the Act.
[4] The Applicant lodged the Application on 7 November 2025.
[5] In that Application, the Applicant identified that her employment commenced on 30 September 2024, and that the cessation of employment took effect on 3 October 2025.
[6] The Form F8 included an explanation for the late lodgement, asserting that the delay was caused by severe psychological injury and medical incapacity arising from alleged workplace conduct and the circumstances in which her employment ended.
[7] The Respondent filed a Form F8A Response and raised two jurisdictional objections. Relevantly, the Respondent asserted that:
(a) the Applicant was not dismissed, but resigned voluntarily on 2 October 2025; and
(b) the Application was lodged out of time and there are no exceptional circumstances justifying an extension of time.
[8] Directions were issued requiring the filing of evidence and submissions in relation to the extension of time question. The Applicant filed a witness statement , a Statement from her mother Barbara Laria, and submissions dated 16 December 2025 addressing s.366(2).
[9] The Respondent filed submissions dated 1 January 2026 opposing an extension of time. The Respondent also filed a witness statement from Ms Fleur Martin dated 2 January 2026 relevantly addressing factual matters concerning the events on 3 October 2025 and the Applicant's email of 17 October 2025.
[10] The Applicant filed a Reply Witness Statement on 8 January 2026 with associated annexures.
[11] The Applicant was employed by the Respondent from 30 September 2024.
[12] On Friday, 3 October 2025, a meeting occurred between the Applicant and representatives of the Respondent. On the Respondent's material, the meeting concerned performance and operational issues at the Liverpool store, including stocktake results, loss prevention and inventory processes.
[13] The Respondent contends that, before the meeting outcome could be delivered, the Applicant provided the Respondent's representatives with a typed resignation letter, effective from 3 October 2025. That letter relevantly read:
I am writing to formally resign from my position as Store Manager at HARLI HARPA Liverpool, effective immediately from 3rd October 2025.
[14] The Applicant's Form F8 describes the cessation of employment as a "forced resignation" and contends she had no reasonable choice but to resign due to alleged bullying, intimidation and unsafe workplace conduct. The Applicant contends that her employment ended on 3 October 2025.
[15] For present purposes, it is not necessary to finally determine whether the Applicant resigned or was dismissed within the meaning of the Act. The question I must decide is whether an extension of time should be granted under s.366(2).
[16] The Applicant's evidence is that immediately following the end of her employment she experienced severe psychological symptoms including anxiety, panic attacks, impaired concentration and reduced capacity to manage administrative tasks.
[17] The Applicant says that on 4 October 2025 she requested access to disciplinary meeting notes following the meeting held on 3 October 2025, to properly review and respond to matters discussed.
[18] The Applicant attended a medical appointment on 8 October 2025 in relation to her mental health.
[19] The Applicant says that on 14 October 2025 her general practitioner diagnosed her with a work-related psychological injury described as depression with anxiety. The Applicant also refers to a further diagnosis on 24 October 2025 of anxiety mixed with depression and adjustment disorder.
[20] The Applicant says she received a referral for psychological treatment on 21 October 2025, and at that time was experiencing significant symptoms which impaired her functioning.
[21] The Applicant contends that on 17 October 2025 she raised concerns internally with the Respondent and lodged a written grievance about the circumstances of the end of her employment, and that she notified the Respondent in writing of her intention to escalate the matter to the Commission. That 17 page email importantly included the following extracts:
These actions collectively violate company disciplinary procedures, the Fair Work Act's principles of procedural fairness, and Workplace Investigation best-practice standards, which require:
• Written notice of allegations and sufficient time to respond;
• Impartial documentation and conflict-free note-taking; and
The lack of procedural fairness and transparency in how this meeting was conducted caused further distress and compounded my ongoing concerns regarding unsafe and unreasonable management practices.
Performance Management During/After Sick Leave
It is also important to note that formal performance reviews criticising my performance were consistently scheduled immediately after returning from approved sick leave. Please see the attached email to Kathryn referencing the dates of these meetings. This pattern demonstrates that each time I took medically supported leave, I was subsequently met with a performance review meeting, often without prior notice or opportunity to prepare, which created a clear perception of retaliation.
Most concerningly, my most recent formal meeting on 3 October 2025- alleging serious misconduct and potential termination- was issued to me while I was on approved sick leave, requesting meeting attendance the very next day. Issuing a disciplinary or termination-related meeting during a period of certified medical incapacity is unreasonable, procedurally unfair, and inconsistent with duty-of-care obligations under HARLI + HARPA's policies and the Fair Work Act 2009 (Cth).
This conduct breaches HARLI + HARPA's Performance Management Policy, which require that:
• Addressing underperformance or misconduct in a fair and reasonable manner
• Conduct disciplinary processes in accordance with all relevant Acts, regulations, policies and guidelines.
In addition, scheduling a meeting of this nature during sick leave may constitute adverse action under Section 340 of the Fair Work Act 2009 (Cth), as it can be viewed as unfavourable treatment resulting from my lawful exercise of the right to take personal/carer's leave for a certified medical condition.
HARLI + HARPAInduction Policy (Version 1, July 2025) This policy outlines the company's commitment to maintaining a safe, fair, and professional work environment. It requires that all formal complaints be investigated promptly, fairly, and independently, with the principles of natural justice upheld. It also mandates that leaders must take early corrective action, prevent bullying and harassment, respond promptly, sensitively, and confidentially to issues, and ensure no victimisation occurs as a result of employees raising concerns.
This policy further recognises that workplace bullying can include:
"Persistent conduct that causes distress, withholding information necessary for work performance, or manipulating impressions to divide teams." In this case, the policy was breached through:
• Failure to investigate a formal written complaint in a timely or independent manner;
• Withholding of essential operational information (e.g. stocktake results, procedural instructions);
• Inconsistent and contradictory feedback that created confusion and distress;
• Direct and indirect victimisation following the submission of formal complaints; and
• Persistent conduct by a Regional Manager that caused psychological harm and undermined a safe and respectful working environment.
Under Section 19 of the WHSAct, employers have a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of workers- including their psychological wellbeing. This duty extends to managing risks, implementing preventative controls, and responding appropriately to identified hazards or incidents.
• Failure to act on reported unsafe behaviour (e.g. throwing stock boxes in close proximity to staff and customers);
• Lack of any formal WHS incident investigation or corrective action plan following repeated hazards;
• Repeated breaches of fatigue management obligations (e.g. inadequate rest breaks and insufficient rest periods between shifts); and
• Allowing an unsafe psychosocial environment to persist, despite repeated reports of distress, anxiety, and intimidation.
These failures indicate a systemic disregard for the WHS obligations to identify, assess, and eliminate or minimise workplace risks- both physical and psychological.
Fair Work Act - Adverse Action & Constructive Dismissal
Fair Work Act 2009 (Cth)
Under the Fair Work Act, employees have a protected workplace right to raise complaints or inquiries about their employment, including matters of safety and conduct. Taking adverse action against an employee for exercising this right whether through intimidation, unfair scrutiny, or creating conditions that force a resignation- is unlawful.
In this matter, adverse action and procedural unfairness occurred when:
• My formal complaint was dismissed without proper investigation or acknowledgment;
• I experienced heightened scrutiny and negative treatment following myself and my team's reports of unsafe behaviour; and
• Ongoing procedural inconsistencies and lack of support ultimately left me with no reasonable option but to resign to protect my mental health and wellbeing.
These actions contravene the Fair Work Act's provisions relating to adverse action and constructive dismissal.
Any written response or investigation conducted by HARLI + HARPA at this stage will be noted and included as part of my Fair Work submission as evidence of the company's subsequent handling of this matter and its compliance with relevant workplace and WHS legislation.
If I recall or identify any additional information or evidence relevant to these concerns, I will provide it in writing to the appropriate parties, including as part of my Fair Work and iCare submission.
For transparency and record-keeping purposes, I request that all correspondence regarding this matter be conducted in writing through email only.
[22] Including that extracted above, the 17 October 2025 email is 17 pages long and sets out a wide range of factual and legal allegations in detail, and that it expressly flags that as at that date, 14 days after the cessation of employment, the Applicant was preparing Fair Work proceedings.
[23] On 29 October, five days after the expiry of the 21-day limitation period, the Applicant sent a further email which relevantly read:
This email serves as formal notice that I am proceeding with my application to the Fair Work Commission, seeking all available legal remedies, compensation, penalties and orders under the Fair Work Act.
Your failure to acknowledge, investigate or take corrective action will be relied upon as evidence of procedural breach, neglect of duty of care and adverse action.
For absolute clarity, the initiation of my application is final and will proceed regardless of whether a response is now provided. The harm has already occurred and requires independent statutory intervention.
Should the company wish to engage in a resolution process through the appropriate formal channels, I am prepared to do so in accordance with Fair Work legislation.
[24] The Applicant lodged the Form F8 application on 7 November 2025.
[25] The Applicant contends that she had earlier lodged an "initial" application on 3 November 2025, and that between 3 and 7 November 2025 she engaged with the Commission to remove sensitive material and then re-lodged in corrected form on 7 November 2025.
[26] The Respondent emphasises that the Form F8 is recorded as lodged on 7 November 2025 and submits that the application was filed 35 days after the cessation of employment, and therefore 14 days outside the statutory limit.
[27] The Applicant's evidence is that her employment ended on 3 October 2025 in circumstances which caused her significant distress.
[28] The Applicant says that in the period immediately following the cessation of employment she experienced severe psychological symptoms including anxiety, panic attacks, emotional instability and impaired concentration, which materially affected her capacity to process information, organise documents, make timely decisions and engage in formal processes.
[29] The Applicant describes being under medical and psychological care shortly after the end of her employment and contends she was not capable of lodging the application within the statutory timeframe.
[30] The Applicant's evidence is that the delay was not deliberate, nor the result of indifference, and that once her condition stabilised, she acted promptly to lodge the application.
[31] The Applicant also relies on actions she says she took to dispute the cessation of employment, including requesting disciplinary meeting notes on 4 October 2025 and raising an internal grievance on 17 October 2025. The October 4 email relevantly read:
I am formally requesting a copy of the minutes and written notes, from the formal meeting held on Friday, 3rd October 2025 at WOTSO, 1:00 pm.
This also includes all notes and figures from your laptop that were used to conduct the meeting.
[32] The Applicant's account is broadly consistent with her submissions as to the medical timeline, including medical appointments and diagnoses in October 2025, and later engagement with psychological treatment under the workers' compensation system.
[33] Ms Martin is the Respondent's Head of People and Brand and has experience in human resources management.
[34] Ms Martin gives evidence that she was informed by other managers who attended the 3 October 2025 meeting that:
(a) they discussed operational issues at the Liverpool store;
(b) they took a break to consider the outcome; and
(c) before they could deliver the outcome, the Applicant presented a typed resignation letter effective 3 October 2025.
[35] Ms Martin also addresses the email dated 17 October 2025. Ms Martin states she had no recollection of receiving the email and could not locate it, and that the other two named recipients could not locate it.
[36] Ms Martin's evidence is that the Respondent's solicitors requested a full copy of the email from the Applicant, and a copy was provided on 23 December 2025.
[37] The Respondent relies upon this email and its contents in opposing the extension, contending that the Applicant's apparent ability to prepare a lengthy and detailed document within the 21-day period casts doubt on her contention that she lacked capacity to lodge a Form F8 within time.
[38] The Applicant relies on documents evidencing psychological injury and treatment. This includes a supporting statement from an Accredited Mental Health Social Worker, dated 4 November 2025, which states that the Applicant experienced significant psychological distress following alleged workplace bullying and harassment and that her functioning was significantly impaired during the relevant period.
[39] The Applicant also refers in her submissions to medical certificates and referral material dated 8 October 2025, 14 October 2025, 21 October 2025 and 24 October 2025, and contends her workers' compensation claim was accepted on a provisional basis.
[40] The Respondent challenges the probative value of aspects of the Applicant's medical material on the basis that no treating practitioner has given sworn evidence and submits that the material appears to be based on the Applicant's narrative rather than an independent assessment of her capacity to make an application.
[41] The Applicant submits that the Commission should grant an extension of time pursuant to s.366(2) having regard to each mandatory consideration.
[42] The Applicant submits that the delay arose due to psychological injury and impaired capacity following the cessation of employment. She contends her symptoms materially impaired her ability to engage with procedural requirements and to take timely action.
[43] The Applicant relies on a medical timeline in October 2025 and contends that contemporaneous medical material corroborates her explanation for delay. She submits that psychological injury, supported by medical evidence, may constitute a satisfactory explanation and refers to authorities in support of that proposition, including Oliver Reece v PKF (Gold Coast) HR Services Pty Ltd [2023] FWC 488, A v B [2023] FWC 3198 and Ovenden v Fortezza Pty Ltd [2010] FWA 3863.
[44] The Applicant submits that she acted promptly once her condition stabilised and that the delay was short. The Applicant contends that an initial lodgement occurred on 3 November 2025, and that the period to 7 November 2025 was a procedural period in which sensitive material was removed from the Application.
[45] The Applicant submits that she took action to dispute the dismissal by requesting meeting notes on 4 October 2025, lodging a grievance on 17 October 2025, and notifying the Respondent of an intention to pursue remedies.
[46] The Applicant submits the Respondent has not demonstrated any prejudice arising from the delay, and that mere inconvenience does not constitute prejudice.
[47] As to merits, the Applicant submits the Commission is not required to determine merits at this stage but should consider whether the claim is manifestly untenable or frivolous. She submits her claim is arguable and supported by contemporaneous documentation and medical evidence.
[48] The Applicant submits that fairness weighs in favour of granting the extension because refusing it would permanently bar her access to the Commission's jurisdiction and granting it would not cause injustice to the Respondent.
[49] The Respondent submits there are no exceptional circumstances justifying an extension of time and that the Applicant has not demonstrated by persuasive evidence that her capacity was diminished such that she could not lodge the application within time.
[50] The Respondent emphasises that the statutory time limit is 21 days, and that the Applicant's application was filed 35 days after the cessation of employment and 14 days outside the time period.
[51] The Respondent contends that the medical documents relied on by the Applicant do not establish incapacity of a kind sufficient to prevent lodgement and submits that distress following cessation of employment is not of itself an exceptional circumstance.
[52] The Respondent relies heavily upon the 17 October 2025 email, prepared by the Applicant within the 21-day period. The Respondent submits that the email contains extensive factual and legal allegations and expressly foreshadows Fair Work proceedings, and that it is unclear how the Applicant could prepare such a document but not complete and file a Form F8.
[53] The Respondent submits that the existence and content of that email casts doubt on the accuracy of the representations underlying the medical material and weighs against granting an extension.
[54] The Respondent accepts that an email was sent on 17 October 2025 but submits that it was never received by the Respondent at the time and was not followed up, and therefore should not be afforded significant weight as "action taken to dispute the dismissal".
[55] The Respondent submits that prejudice arises in the sense that the Respondent is entitled to finality and should not be required to defend a claim brought outside the statutory timeframe and also submits that the merits are slight given the Respondent's contention that the Applicant resigned voluntarily.
[56] Section 366(1) of the Act relevantly provides that an application under s.365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).
[57] Section 366(2) provides that the Commission may allow a further period for the application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the following matters:
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(e) fairness as between the person and other persons in a like position.
[58] The statutory criteria are mandatory considerations. The discretion under s.366(2) is evaluative. The task to weigh all relevant circumstances, informed by those criteria, to determine whether exceptional circumstances exist and whether an extension should be granted.
[59] The authorities recognise that "exceptional circumstances" does not mean that the circumstances must be unique or unprecedented. Rather, the circumstances must be such as to take the case out of the ordinary course, bearing in mind that the legislature has imposed a short statutory time limit and that extensions are not to be granted as a matter of routine.
[60] The Commission has accepted that illness, including psychological injury, may constitute a satisfactory explanation for delay where supported by persuasive evidence and where the illness has in fact affected the capacity of the applicant to comply with the statutory timeframe. However, the Commission must assess such assertions carefully, including by considering whether the Applicant was able, during the same period, to take other substantial steps indicative of functional capacity.
[61] It is also well accepted that prejudice under s.366(2)(c) requires something more than the loss of the benefit of the time limit itself. The employer must ordinarily demonstrate some practical detriment (for example, unavailability of witnesses, loss of documents, or forensic disadvantage) caused by the delay.
[62] The "merits" factor requires only a preliminary assessment. The Commission does not finally determine the substantive application at this stage. Rather, the Commission considers whether the claim appears arguable or whether it is plainly hopeless or manifestly untenable on the material before it.
Reason for the Delay (s.366(2)(a))
[63] The Applicant's cessation of employment took effect on 3 October 2025.
[64] The 21-day period for lodging an application under s.365 therefore expired on 24 October 2025.
[65] The Application was lodged on 7 November 2025. It was therefore lodged 14 days late. While I accept that the Applicant lodged her initial application on 3 November 2025, that Application would still remain 10 days out of time.
[66] The Applicant contends the delay was caused by psychological injury and reduced functional capacity following the end of employment. The Applicant relies on her evidence of severe anxiety and trauma symptoms, and on supporting medical material, including the supporting statement dated 4 November 2025.
'[15] After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person's life, and such effects are unfortunately not unusual.'
[68] I accept that the material supports the finding that the Applicant experienced severe anxiety and trauma symptoms in the period following the end of her employment, and that she engaged with medical treatment and referral pathways. I also accept that psychological injury may provide a satisfactory explanation for delay.
[69] The difficulty for the Applicant is that the Commission must be satisfied not merely that the Applicant experienced severe anxiety and trauma symptoms, but that the severe anxiety and trauma symptoms and associated incapacity caused the failure to lodge within time.
[70] The Respondent relies upon the 17 October 2025 email which, on the Respondent's material, is lengthy, detailed, and contains a broad range of allegations and legal contentions. The Respondent contends it expressly foreshadows Fair Work proceedings within the 21-day period.
[71] The Applicant's evidence is that she lodged a grievance on 17 October 2025 and notified the Respondent that she intended to escalate the matter to the Commission. That assertion is consistent with the existence of the 17 October 2025 email.
[72] On the Respondent's evidence, the email was not received at the time due to a server-level spam filter and was later produced by the Applicant in full upon request . I do not consider it necessary to finally determine the precise reason the email was not received in October 2025. What is relevant is that the Applicant was capable of preparing that extremely detailed email at that time.
[74] On the material before me, the Applicant's own evidence demonstrates that she was able to take substantial steps during the statutory period, including preparing written communications challenging the Respondent's conduct and foreshadowing formal proceedings. It is notable that, when the Applicant finally completed the Application, the content of that she inserted in response to Questions 2.1 and 3.1 of the Application were less than one and a half pages of double-spaced text.
[75] The medical material relied upon by the Applicant supports that she was experiencing severe anxiety and trauma symptoms, and engaged with treatment, however, the is the Applicant's materials are expressed in general terms about impairment and do not provide a detailed functional assessment linked to the specific task of lodging an application within time. Further, no sworn evidence from a treating practitioner was provided.
[76] In all of the circumstances, I am not satisfied that the Applicant has established that psychological incapacity in the form of severe anxiety and trauma symptoms prevented her from lodging an application within the statutory period. The explanation for delay is therefore not accepted. This factor weighs against granting an extension.
Action Taken to Dispute the Dismissal (s.366(2)(b))
[77] The Applicant relies on actions taken shortly after the cessation of employment, including requesting meeting notes on 4 October 2025 and lodging a written grievance on 17 October 2025.
[78] The Respondent submits the 17 October 2025 email was not received and was not followed up and therefore should be given limited weight.
[79] I accept that these matters demonstrate that the Applicant disputed the circumstances of the cessation of her employment and wished to challenge the Respondent's position, however, I do not consider the sending of the 17 October 2025 email put the Respondent on notice of an impending claim having not been received. The 4 October 2025 email also did not foreshadow any claim and merely requested meeting minutes.
[80] In the circumstances, I treat prejudice as a neutral factor.
Prejudice to the Employer (s.366(2)(c))
[81] The Respondent did not point to specific prejudice of the kind usually contemplated by s.366(2)(c), such as unavailable witnesses, missing documents, or forensic disadvantage arising from the 14-day delay.
[82] I accept that employers have an interest in finality and in the enforcement of statutory time limits. However, that interest is not itself "prejudice" of the kind requiring significant weight. The delay here is relatively short and the events are recent.
[83] In the circumstances, I treat prejudice as a neutral factor.
Merits of the Application (s.366(2)(d))
[84] The Applicant alleges that she was left with no reasonable choice but to resign due to adverse action and inaction by the Respondent and alleged retaliatory and unreasonable conduct. The Applicant's material includes reference to bullying and intimidation and psychological injury.
[85] The Respondent contends that the Applicant resigned voluntarily and produced a typed resignation letter at the 3 October 2025 meeting, and that the merits are slight.
[86] There are factual contests about the circumstances of separation and the alleged reasons for adverse action. This is a general protections claim. I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:
"It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues."
"The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."[4]
[88] I adopt this reasoning of the Full Bench of the former Commission in relation to the consideration of merits. I consider that this is a neutral factor.
Fairness as Between the Applicant and Others in a Similar Position (s.366(2)(e))
[89] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.
[90] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration. Consequently, no weight can be given to this consideration.
[91] As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any significant weight, being the absence of any acceptable reason for delay, weighs in favour of a conclusion there are not exceptional circumstances. None of the factors weigh against such a conclusion.
[92] Having regard to the matters I have been required to take into account under s.366(2), I am not satisfied that there have been exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together.
[93] The central difficulty is the reason for the delay. The Applicant has not persuaded me that she was incapacitated in a way that prevented lodgement within time. The existence of the 17 October 2025 email, apparently prepared by the Applicant within the statutory period and foreshadowing Fair Work proceedings, materially undermines the asserted inability to lodge an application within time.
[94] In the circumstances, I am not satisfied that there are exceptional circumstances within the meaning of s.366(2) of the Act.
[96] The application is therefore dismissed as being made out of time.
Mr S Crilly, Solicitor on behalf of the Respondent.
[1] [2015] FWCFB 287, at para [15].
[2] Statement of Elizabeth Laria dated 16 December 2025, at [57].
[3] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
Printed by authority of the Commonwealth Government Printer
Ms Elisabeth Laria
Harli and Harpa Pty Ltd [2026] FWC 190