s.365 - Application to deal with contraventions involving dismissal

Raymond Charles Godfrey Pty Limited, Ms Fairhall Chelsea-Jade

General protections application filed out of time - circumstances not exceptional - application dismissed.

• [1] This decision concerns an application by Ms Georgia-Marie Pettit (Applicant) for the Fair Work Commission (Commission) to deal with a general protections dispute pursuant to s 365 of the Fair Work Act 2009 (Act) against Raymond Charles Godfrey Pty Ltd and Ms Chelsea-Jade Fairhall (Respondents).

• [2] The Applicant seeks an extension of time to lodge her general protections application in the Commission.

• [3] I conducted a hearing, by telephone, on 16 June 2025 in relation to the Applicant's request for an extension of time.

• [4] The Applicant was dismissed on 3 March 2025 and lodged her general protections application in the Commission on 24 April 2025.

• [5] Section 366(1) of the Act states that an application under s 365 must be must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 366(2). The period of 21 days ended at midnight on 24 March 2025. The application was therefore filed 31 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 366(2).

• [6] The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are 'exceptional circumstances'. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[2]

• [7] The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [8] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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 similar position.

• [9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.

• [10] The delay required to be considered in s 366(2)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

• [11] 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 the applicant's favour, however all of the circumstances must be considered.[5]

• [12] The Applicant says that she was not in a mental or physical state to take on any more stress and lodge an application in the Commission until she did so on 24 April 2025. The background to this evidence is that the Applicant was admitted to hospital on 28 February 2025 and underwent emergency surgery for internal bleeding on 1 March 2025. On 3 March 2025, the Applicant was notified of her dismissal and says she was subjected to intimidating and threatening behaviour during this discussion. On 4 March 2025, the Applicant was discharged from hospital. On 1 April 2025, the Applicant was rushed back to hospital and was discharged again on the following day. The Applicant continued recovering from her surgery until she filed her application in the Commission on 24 April 2025.

• [13] Having regard to the Applicant's medical issues and the impact they had on the Applicant at about the time of her dismissal and in the following weeks, I accept that the Applicant has a reasonable explanation the delay in filing her application on 24 April 2025.

• [14] There is no suggestion in the material before the Commission that the Applicant took any action to dispute her dismissal before filing her application in the Commission.

• [15] Notwithstanding the Respondents' submission that they would be prejudiced by an extension of time, I cannot identify any significant prejudice that would accrue to the Respondents if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

• [16] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the general protections application are set out in the materials that have been filed, and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.

• [17] The Applicant contends in her application that she was dismissed in contravention of the general protections provisions in part 3-1 of the Act. However, in answer to question 2.2 of the application ("The reason(s) that the Applicant believes apply to their dismissal"), the Applicant answered:

"I'm unsure which option to select here as none of them apply to me.

I was fired for no valid reason while I was in intensive care and my boss wished my death upon me and told me I was worthless."

• [18] The Respondents contend that the Applicant was engaged as a contractor to provide disability support services to NDIS clients and the Applicant's main NDIS participant exercised her right and choice to no longer obtain support from the Applicant. As to the Applicant's office duties, the Respondents contend that other employees took over these duties to the extent they were required to be performed. The Applicant disputes these contentions. The Applicant contends that she was dismissed because of an incident in her personal life.

• [19] I consider the merits of the Applicant's general protections application to be very weak. The Applicant admits in her application that none of the general protections provisions apply to her. The Applicant contends that there was no valid reason for her dismissal. The Applicant's claim in relation to her dismissal seems to be associated with the fairness of her dismissal, not that she was dismissed for a prohibited reason. I note that the Applicant originally filed both an unfair dismissal application and a general protections application and then discontinued her unfair dismissal application.

Fairness as between the person and other persons in a similar position

• [20] 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. In all the circumstances, I consider this factor to be a neutral consideration.

• [21] Taking into consideration the matters I am required to take into account under s 366(2) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case. Although the Applicant has a reasonable explanation for the delay in lodging her application, the merits of the Applicant's general protections application are very weak. The other factors are neutral or of little weight. In my assessment, the circumstances of this case are not out of the ordinary course, unusual, special or uncommon.

• [22] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2). Accordingly, the Applicant's general protections application must be dismissed.

Mr Godfrey and Ms Fairhall appeared for the Respondents.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Long v Keolis Downer [2018] FWCFB 4109 at [40]

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31]

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

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