s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - Jurisdictional objection - Out of time - No exeptional circumstances - Objection upheld - Application dismissed.

• [1] This is an application made by Ms Hannah Pope pursuant to s. 365 for the Commission to deal with a dispute with her former employer The Lash House Newcastle Pty Ltd in which Ms Pope alleges that she was dismissed contrary to Part 3-1 of the Fair Work Act 2009 (the Act).

• [2] In the proceedings the applicant was self-represented and I granted permission for the respondent to be represented by a solicitor on the basis that the respondent is a small business and did not have capacity to represent itself and that I would be assisted in dealing efficiently with the matter of the respondent was represented. The following is an edited extract of a decision announced ex tempore at the conclusion of the hearing of this matter on 11 June 2025.

• [3] An application has been made by Miss Hannah Pope under section 365 to the Fair Work Commission, raising a dispute over her dismissal, which involves allegations of contraventions of part three, one of the Fair Work Act the application was made on the 22nd day after the dismissal, and so was one day late.

• [4] In those circumstances, I was asked by Miss Pope to consider exercising my discretion under Section 366(1)(b) of the Fair Work Act to extend time to allow the application to proceed.

• [5] In conference this afternoon, I have heard from Ms Pope and I've also heard from Ms Hill, the director and owner of the Respondent, The Lash House, Newcastle Pty Ltd.

• [6] I was informed that the reason for the delay was that Miss Pope wasn't aware of her rights and became aware of her rights in the weeks following the dismissal. Having become aware that she could make an application, she contacted the Fair Work Commission (albeit on the 22nd day) and was advised that the application to be made was one using a Form F8 under the Fair Work Act of the Fair Work Rules.

• [7] Her application was made on that day and was one day late. The reason was ignorance of the time frames and ignorance of her rights. I don't find those matters to be exceptional circumstances for the delay. I find that factor weighs against against extending time.

• [8] I also note that Miss Pope didn't take any action to dispute the dismissal in the days up to the filing of the application. That is another factor that would militate against extending time.

• [9] There is some prejudice to the employer in that the application comes some weeks after the dismissal, although that prejudice I don't think is significant in this case and I don't consider that to be a relevant factor.

• [10] The merits of the application are finally balanced. The allegation is that Miss Pope, having sought to exercise her right to sick leave the day after she was spoken to about her performance, was met with a letter of termination based on her performance.

• [11] I'm not in a position to make any findings as to whether the claim is good or otherwise based on the material that I have before me, so I also regard the merits as a neutral consideration.

• [12] The other factor I'm required to take into account by the legislation is fairness between the person and other persons in a similar position. That provision has no relevance in this matter.

• [13] Having found that the reason for the delay and the failure to take any other action to dispute the dismissal militate against extending time, I have decided not to extend the time in this case and as a consequence the application is dismissed.

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