Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal -general protections application filed out of time - circumstances not exceptional - application dismissed.

• [1] On 15 August 2025, Ms Gulden Bereket (the Applicant) lodged an application (the Application) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant was employed by Brighte Capital Pty Ltd (the Respondent). The Applicant commenced her employment with the Respondent on 1 April 2025. The Applicant claimed she was notified of her dismissal on 24 July 2025 and confirmed on her Form F8 that the dismissal took effect on that day.

• [2] General Protection applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. An application for a remedy should have been lodged by 14 August 2025. The Application was therefore lodged outside of the time prescribed and was lodged 1 day after the last day on which such an application could have been made.

• [3] On 1 October 2025 Directions were issued to determine the programming of the matter. The Directions were:

[1] By no later than 4:00PM on 8 October 2025 Ms Gulden Bereket (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:

• The reason(s) for the delay;
• Whether the Applicant first became aware of the dismissal after it had taken effect;
• Any action taken to dispute the dismissal;
• If there is any prejudice to the employer (including prejudice caused by the delay);
• The merits of the application; and
• Fairness as between the Applicant and any other persons in a similar position.

[2] By no later than 4:00PM on 15 October 2025 the Respondent is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on.

[3] By no later than 4:00PM on 22 October 2025 the Applicant is directed to prepare a signed witness statement reply to the material filed by the Respondent with respect to the Jurisdictional Issue, which includes everything they seek to rely on.

Important note: Failure to comply with these Directions or to attend the Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.

• [4] The Applicant filed various Statements and Submissions in support of her Application. The Respondent filed a Statement from Ms Stebbing. The Applicant filed a Submission in Reply.

• [5] The Hearing took place on 28 October 2025 over Microsoft Teams.

• [6] Ms Gulden Bereket commenced employment with Brighte Capital Pty Ltd (the Respondent) on 1 April 2025 as a Payment Solutions Officer. Her role involved managing customer accounts, handling hardship cases, and ensuring compliance with regulatory obligations.

• [7] During her employment, Ms Bereket raised several concerns internally. These included alleged compliance breaches, allegations of bullying and misconduct by colleagues, and concerns about misleading customer communication practices (the Complaints).

• [8] Following the Complaints, Ms Bereket contends that her working environment deteriorated. She was allegedly subjected to:

• Unreasonably high performance targets (e.g., over 100 calls per day);
• Denial of access to necessary tools and systems;
• A manipulated performance matrix scoring her poorly without prior feedback or opportunity to improve; and
• Reprimands for raising concerns via internal channels such as Slack.

• [9] On 24 July 2025, Ms Bereket was called into a meeting with Clara Smith (People & Culture Manager) and Dianne Viselli (Customer Support Manager), where she was informed that her employment was being terminated effective immediately. The termination letter cited failure to meet performance expectations during her probation period. She was paid one week in lieu of notice and her final pay was processed on 30 July 2025.

• [10] Ms Bereket claims that the stated reasons for her dismissal were false and retaliatory, and that she had recently received positive feedback from her manager, including being described as the top-performing staff member in the Sydney office.

• [11] On 14 August 2025, Ms Bereket attempted to lodge a general protections application but mistakenly submitted a Form F9. Upon being notified of the error by the Commission the following morning, Ms Bereket withdrew the incorrect form and submitted the correct Form F8 on 15 August 2025, one day outside the statutory 21-day timeframe.

• [12] It is apparent from the Commission's records, and Ms Bereket confirmed, that she previously made the following applications to the Commission:

(a) On 29 June 2023, by way of a Form 8A, Ms Bereket commenced proceedings pursuant to s.365 against a former employer; and

(b) On 13 March 2025, by way of a Form 2, Ms Bereket commenced proceedings pursuant to s.394 against another former employer.

• [13] Ms Bereket seeks an extension of time under s.366(2) of the Fair Work Act 2009, citing emotional distress, procedural confusion, and her prompt corrective action. The Respondent opposes the extension, arguing that the delay undermines procedural integrity and that no exceptional circumstances exist.

• [14] 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.

• [15] 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.

• [16] 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 now consider these matters in the context of the Application.

Section 366(2)(a) - Reason for the delay

• [17] When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479 stated at [30]:

"Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances."

• [18] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 noted at [39]:

"The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each."

• [19] Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation.

• [20] Ms Bereket was dismissed on 24 July 2025. By that date she had only been in the role since 4 April 2025.

• [21] In her "Submission for Extension of Time", Ms Bereket provided the following as the reasons for delay:

The delay was minimal, being only one day outside the statutory timeframe.

During the 21-day period, I was experiencing significant emotional and

I was actively applying for jobs, attending to application processes, and

reorganising my financial commitments, while also seeking government

In this state, I mistakenly lodged the wrong form (Form F9) and, upon

realising the error the very next afternoon, I promptly corrected it by filing

• [22] Ms Bereket advances two reasons for delay, being significant emotional and financial stress, and mistake as to the appropriate form.

• [23] While I accept that the dismissal may have impacted Ms Bereket, that impact did not prevent her from actively applying for jobs, attending to application processes, and reorganising her financial commitments, while also seeking government support.

• [24] In the Hearing I read the following passage from a majority of the Full Bench (Watson VP and Smith DP) in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[1], to Ms Bereket:

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.

• [25] Ms Bereket candidly accepted that her medical situation was not of the severity that could have precluded her filing the Application within time, but stated that she was "under [her] own stress".

• [26] It is without challenge that Ms Bereket filed a Form F9 on 14 August 2025, within the statutory 21-day timeframe, and upon being notified of an error by the Commission the following morning, Ms Bereket withdrew the incorrect form and submitted the correct Form F8 on 15 August 2025, one day outside the statutory 21-day timeframe. The issue is whether the error of Ms Bereket is supportive of a finding of an exceptional circumstance.

• [27] It is of the utmost significance in consideration of this factor that the Application is, if the incorrect Form F9 is disregarded, the third application to the Commission regarding dismissal in just over two years by Ms Bereket. On 29 June 2023, Ms Bereket used the same form F8 used in these proceedings to commence proceedings pursuant to s.365 against a former employer.

• [28] Further, on 13 March 2025, Ms Bereket used the correct form to commence unfair dismissal proceedings against another former employer pursuant to s.394.

• [29] While it is without doubt that the late filing arose from an error, in all the circumstances and Ms Bereket's prior dealings with the Commission, the Commission cannot be satisfied that error constituted exceptional circumstances, as contemplated by the statute. As neither of the reasons constitute acceptable reasons for delay, this factor weighs in the Respondent's favour and against a finding of exceptional circumstances.

Section 366(2)(b) - action taken by the Applicant to dispute the dismissal

• [30] Where an Applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the Applicant's employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[2]

• [31] Ms Bereket commenced an unfair lawful termination action and did so within time, however that application, being filed on the last day of the 21-day limitation period, did not give the Respondent any significant notice within the 21-day period of an impending claim.

• [32] I consider that this is a neutral factor.

Section 366(2)(c) - the prejudice to the employer (including prejudice caused by the delay)

• [33] In all the circumstances, I do not find that any material prejudice would be suffered by the employer if an extension of time were granted. Accordingly, I consider that this is a neutral factor.

Section 366(2)(d) - the merits of the application

• [34] 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."

• [35] In the matter of Kornicki v Telstra-Network Technology Group[3] a predecessor of the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"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]

• [36] I adopt the 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 other persons in a similar position

• [37] This consideration relates to matters currently before the Commission or to matters previously decided by the Commission. However, cases of this kind will generally turn on their own facts.

• [38] 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.

Is the Commission satisfied that there are exceptional circumstances?

• [39] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

• [40] 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.[5] 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.[6]

• [41] I have already set above my observations in respect of the specific factors that I must take into account. As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any weight was the absence of any acceptable reasons for the delay. That factor weighed in the Respondent's favour.

• [42] I am persuaded therefore that, in the overall balance, there were not exceptional circumstances, and there is no basis to allow an extension of time. The Application for extension of time is dismissed.

[1] [2015] FWCFB 287, at para [15],

[2] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[3] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

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