s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - application filed out of time - no exceptional circumstances - application dismissed.

[1] Ms Emily Gabriel has made an application under s 365 of the Fair Work Act 2009 (Act) in which she alleges that she was dismissed by her employer in contravention of Part 3-1 of the Act. Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2). Ms Gabriel's application stated that she commenced employment on 29 October 2025, and the effective date of dismissal was 4 March 2026. The 21-day statutory timeframe for filing the application therefore ended on 25 March 2026 and Ms Gabriel's application was lodged in the Commission on 28 March 2026.

[2] For the application to proceed, Ms Gabriel requires an extension of time, and this decision deals solely with this matter. The Commission may grant an extension of time only if it is satisfied that there are exceptional circumstances, taking into account the matters in s 366(2)(a) to (e) of the Act. On 9 April 2026, my Chambers wrote to Ms Gabriel informing her that her application was lodged out of time, that the application had not been served upon her employer for this reason, and advising that in the absence of any further material from Ms Gabriel, the application for an extension of time would proceed to be determined on written material before the Commission. No further information was provided by Ms Gabriel.

• [3] As to the reason for the delay (s 366(2)(a), Ms Gabriel submits that she experienced significant psychological distress, including anxiety and physical symptoms, arising from workplace events and the disciplinary process.[1] Ms Gabriel said she sought medical treatment on 11 February 2026 and was issued a medical certificate for stress related illness. The medical certificate provides that Ms Gabriel was unfit for work from 11 February until 4 March 2026. Also before the Commission is a certificate of capacity stating that Ms Gabriel had no capacity for employment from 16 February until 1 March 2026.

[4] Ms Gabriel further submits that she was also attempting to understand and respond to serious allegations against her, set out in a letter from her employer dated 12 February 2026. Ms Gabriel said that she requested supplementary information from her employer in order to respond to the allegations and her employer's failure to respond significantly impaired her capacity to seek legal advice and lodge her application within time. Ms Gabriel says that once she was in a position to do so, she did so promptly.

[5] Ms Gabriel has not provided any connection between the above reasons she relies upon to explain the delay, and the late filing of the application in the Commission. While the medical certificate provides contextual information as to Ms Gabriel's state of health prior to the dismissal, it is of little assistance in explaining the late filing. This is because the certificate does not address the relevant period of the delay and instead, is limited to Ms Gabriel's absence from work during her employment in the period between 11 February and 4 March 2026 (noting that Ms Gabriel's employment ended on 4 March 2026). Similarly, the certificate of capacity relates to Ms Gabriel's state of health during the period of her employment, being 16 February to 1 March 2026. It also does not address Ms Gabriel's health during the relevant period of the delay.

[6] Further, Ms Gabriel contends that she could not lodge the application any sooner because she was attempting to respond to the allegations made against her. However, these events preceded the dismissal and have no apparent connection to the delay in filing. To the extent Ms Gabriel says that her employer's failure to respond to her precluded her from obtaining legal advice, this is rejected. It was open to Ms Gabriel to obtain advice at any time irrespective of her employer's response (and I note Ms Gabriel contends that she sought such advice in any event). It follows that I do not accept that any of these matters prevented or seriously impeded the possibility of timely lodgment of Ms Gabriel's application. In my assessment, the reasons for delay relied upon by Ms Gabriel weigh against a conclusion that there are exceptional circumstances in this case.

[7] Ms Gabriel contends she took action to dispute her dismissal (s 366(2)(b)) by:

(a) actively engaging in the disciplinary process and seeking to respond to the allegations prior to her dismissal;

(b) formally requesting 'detailed information, clarification of the allegations, and access to the evidence relied upon' in order to prepare a response;

(c) seeking time to properly consider the material; and

(d) taking steps, after the dismissal, to obtain further information regarding the circumstances of the termination including pursing Freedom of Information requests and seeking advice regarding her legal options.

[8] Section 366(2)(b) requires consideration of whether Ms Gabriel took action to dispute the dismissal itself. It follows that the matters Ms Gabriel relies upon at (a) to (c) above are not directed to the statutory consideration as they concern steps Ms Gabriel took during the disciplinary process that preceded her dismissal. As to the matter at (d), I am prepared to accept that Ms Gabriel sought information regarding the circumstances of her dismissal and that this may have been sufficient to put her employer on notice that the dismissal may be contested. This weighs marginally in favour of an extension of time.

[9] As to the other mandatory considerations, I do not consider there to be any prejudice to the employer associated with the delay in this case (s 366(2)(c)). Nor do I consider that there are any matters of fairness relevant to the consideration in s 366(2)(e), noting that applications to extend time generally turn on their own facts and there is no information before the Commission regarding other persons in a similar position to Ms Gabriel. I consider these to be neutral factors.

[10] In relation to the merits of Ms Gabriel's substantive general protections case (s 366(2)(d)), Ms Gabriel submits that her application has strong merit because the disciplinary process was procedurally unfair. Ms Gabriel says that she was not provided with sufficient detail or evidence to properly respond to the allegation made against her, prior to the dismissal decision. Further, Ms Gabriel says that her dismissal occurred in the context of a workplace environment where she had previously raised concerns regarding psychosocial hazards and workplace behaviour. Ms Gabriel says that these concerns were known to management prior to the disciplinary action. Ms Gabriel's position is that the dismissal was not solely based on the reasons stated by her employer and was influenced by her involvement in a 'personal matter' and Ms Gabriel's 'attempts to raise concerns and seek information.' Ms Gabriel submits that 'this raises issues under the general protections provisions.' Further, Ms Gabriel submits that she was temporarily absent from work, with a medical certificate, at the time of her dismissal, raising considerations under s 352 of the Act.

[11] The termination letter states that Ms Gabriel was dismissed during her probationary period because, inter alia, Ms Gabriel accessed confidential information for her personal interest, such information being unrelated to the performance of her duties. The termination letter stated that Ms Gabriel's actions and subsequent conduct exposed her employer to reputational risk and compromised working relationships with other agencies.

[12] The merits of the matter are, at best, neutral in this case. The contention that Ms Gabriel was not afforded procedural fairness during the disciplinary process does not, on its face, engage the general protections provisions of the Act but rather raises concerns relevant to an unfair dismissal application. Ms Gabriel has not made an unfair dismissal application. To the extent that Ms Gabriel submits that there were other reasons for her dismissal that engage the general protections provisions of the Act, connected to her raising a complaint or inquiry, participating in a workplace process, and in contravention of the temporary absence provisions, the merits of these matters would depend on findings made by a court (and not this Commission) after hearing the evidence.

[13] 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, either when the various circumstances are considered individually or together.

[14] As I am not satisfied that there are exceptional circumstances, the power to extend time is not enlivened. Ms Gabriel's application is therefore dismissed.

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