//
[115]
[2026] FWC 793
General information, not legal advice.
Fair Work Commission
2026-03-10
Commissioner P
Original judgment source is linked above.
s.365 - Application to deal with contraventions involving dismissal
Application to deal with contraventions involving dismissal - application out of time - circumstances not exceptional - application dismissed
[1] This decision concerns an application by Ms Jean Buckley (Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).
[2] In the Application, the Applicant states that her employment with the National Australia Bank (Respondent) was terminated with effect from 9 April 2025. The Application was lodged on 3 October 2025.
[3] Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute 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 30 April 2025. Therefore, the Application was lodged 156 days outside the 21-day period. The Applicant asks the Commission to allow a further period for the Application to be made.
[4] The matter was heard on 17 December 2025. I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was self-represented. The Respondent was represented by Ms T Wong of counsel, instructed by Ms M Bowe.
[5] For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.366(2).
[6] On 22 August 2022, the Applicant commenced employment with the Respondent as a Release Train Engineer within the Data Platforms team.
[7] On 7 August 2023, the Applicant submitted a Health, Safety and Wellbeing Request (INC288108) regarding her removal from a work program.
[8] On 19 January 2024, the Applicant raised a case with the Respondent's Employee Relations team using the Employee Relations Request Form (HRC1297090), complaining about her immediate manager's behaviour towards her (January ER Complaint). Although the January ER Complaint related to her immediate manager's behaviour, the Applicant contends it was a dispute arising under clause 73 of the NAB Enterprise Agreement 2024. After a preliminary meeting to discuss the January ER Complaint, the Applicant was asked to provide further particulars regarding the subject matter of the complaint.
[9] The Applicant contends that following the making of the January ER Complaint she was subjected to unreasonable behaviour by her immediate manager and her 2up manager, including behaviour that constituted workplace bullying. From 5 February 2024 to 14 April 2024, the Applicant took a period of personal leave.
[10] Upon her return to work, the Applicant contends the unreasonable behaviour towards her continued through the introduction of a performance development plan and the unreasonable allocation of work to her. At this stage, and despite repeated requests, the Applicant had not provided the further particulars in relation to the January ER Complaint.
[11] Upon receiving a further request, the Applicant advised that she was focusing on responding to the performance development plan. Around this time, the Applicant sought assistance from the Finance Sector Union of Australia (FSU), which resulted in the withdrawal of the performance development plan in mid-June 2024.
[12] Despite the withdrawal of the performance development plan, the Applicant states that the events between April 2024 and June 2024 impacted her health and she took personal leave from 21 June 2024 to 17 February 2025.
[14] On 17 September 2024, the Respondent issued a consultation information pack to the affected employees, including the Applicant. The restructure would ultimately impact, to varying degrees, approximately 130 employees and contractors. In relation to the Applicant's role, the Respondent engaged 3 Release Train Engineers - 2 employees, one of which was the Applicant, and a contractor. Under the restructure, the Respondent was proposing to reduce the 3 positions into 1 remaining employee position.
[15] On 25 September 2024, the Applicant sent correspondence raising the following concerns with the restructure:
[16] On 26 September 2024, the Respondent issued the new organisational structure to the affected employees.
[17] On 30 September 2024, the Applicant was invited to submit an expression of interest for a position in the new structure but did not do so. However, the other person employed as a Release Train Engineer did submit an expression of interest and was ultimately appointed to the position of Release Train Engineer in the new structure.
[18] On 14 October 2024, the Applicant was given notice that her position was to be made redundant. That notice advised the Applicant that she was "on deployment" for the period of 23 October 2024 to 6 November 2024, and that if an alternative position was not obtained by that date, her employment would be terminated effective from 20 November 2024.
[19] At the time of issuing that notice, the Applicant was due to return from personal leave on 14 October 2024. On 15 October 2024, the Applicant submitted a further medical certificate stating that she was unfit until 1 December 2024. The Respondent subsequently issued amended notices for the "on deployment" period to align that period with the Applicant's expected return to work.
[20] On 8 November 2024, the Respondent closed the January ER Complaint on the basis that the Applicant had failed to provide the information requested.
[21] On 13 December 2024, an Employee Relations Complaint was raised on behalf of the Applicant in response to her sending correspondence to the Respondent on 2 December 2024 alleging ongoing harassment (December ER Complaint). In summary, this complaint related to the Respondent issuing the notifications of the Applicant's redundancy and "on deployment" periods throughout October/November. The complaint also stated that the Respondent should not contact the Applicant until "HRC1297090 is fully resolved."
[22] On 5 February 2025, the Respondent was advised that the Applicant will be fit to return to work on 18 February 2025.
[23] On 17 February 2025, the Respondent issued correspondence to the Applicant advising that the "on deployment" period would apply from 18 February 2025 to 26 March 2025. That correspondence also stated that if the Applicant did not secure another role with the Respondent, her employment with the Respondent will end on 9 April 2025.
[24] On 18 February 2025, the Applicant returned to work.
[25] On 27 February 2024, the Applicant met with the Respondent to discuss the December ER Complaint. That meeting concluded on the basis that the Applicant was to send further information relating to the December ER Complaint.
[26] On 24 March 2025, the Respondent sent correspondence to the Applicant following up on its request for further information relating to the December ER Complaint.
[27] On 25 March 2025, the Applicant advised that the additional information will be provided by 31 March 2025.
[28] On 31 March 2025, the Applicant submitted additional information. However, this information was largely reagitating the matters set out in the January ER Complaint and the Applicant's correspondence of 25 September 2024. The Applicant also raised the issue that upon her return to work, she discovered that the Respondent has engaged 3 external Release Train Engineers. The Applicant also requested the opportunity to provide additional information in support of her grievance.
[29] Upon receiving that correspondence from the Applicant, and noting the Applicant's request to provide additional information, the Respondent invited the Applicant to do so.
[30] On 7 April 2025, the Applicant sent correspondence to the Respondent noting that her last day of employment is 9 April 2025 and requesting that her system access is not revoked prior to 11:59pm on 9 April 2025.
[31] On 9 April 2025, the Applicant provided further information to the Respondent totalling 166 pages of submissions and attachments which largely related to claims of discrimination and workplace bullying. Later that day, the Applicant met with the Respondent and spoke to those claims. During this meeting, the Applicant was reminded that 9 April 2025 was her last day of employment with the Respondent and that it will determine whether any further investigation of the December ER Complaint is required and she will be advised.
[32] On 8 May 2025, the Applicant sent correspondence to the Respondent acknowledging that she had "finished up at NAB a few weeks ago" and seeking an update as to the progress of any investigation into the December ER Complaint.
[33] On 25 August 2025, the FSU sent correspondence to the Respondent's Head of Employee Relations seeking an update of the status of the December ER Complaint. The Respondent confirmed a response will be provided by 12 September 2025.
[34] On 4 September 2025, the Applicant became aware of the 21-day time limit to lodge dismissal related applications when she telephoned the Commission and viewed the Commission's website. Later that day, the Applicant telephoned the FSU for assistance and advised them that she intended to file a Form F8 regardless of whether she was precluded (because of the time limit). The Applicant also informed the FSU that the only matter that prevented her making an application was that she continued to be in good faith discussions with the Respondent and this was the only reason that she could provide to explain the significant delay. The Applicant also stated that she was not aware if a delay caused by an industrial relations advocate or consultant would constitute "exceptional circumstances".
[35] On 12 September 2025, the Respondent sent correspondence to the Applicant setting out its determination of the December ER Complaint. The Respondent concluded that they have not been able to establish any workplace bullying, harassment, or discrimination by the Applicant's former leaders. The Applicant stated that upon receiving this correspondence she formed the view that she must follow the process in "Step 4" of clause 73 of the NAB Enterprise Agreement 2024 and refer the matter to the Commission.
[36] On 13 September 2025, the Applicant sent correspondence to the FSU which relevantly stated:
Please contact me urgently upon your return to work to discuss my case with NAB.
Many thanks for your urgent attention to these matters.
[37] The Applicant had a number of telephone discussions with the FSU on 15, 16, 17 and 18 September 2025.
[38] On 19 September 2025, the Applicant sent correspondence to the FSU which relevantly stated:
I sent the below email to Stephen on Saturday, and he called me late yesterday afternoon to discuss the internal advice he had received in response to the four points I requested urgent advice for, but it was difficult to capture the exact details and I haven't been sent anything in writing.
Understanding that today is not a working day for Stephen, so I'm not seeking a response from him and in fact, don't want him (or anyone) doing work on a non-working day, I'm hoping someone else in the team can help me with this request.
Could someone please email me the FSU's responses to my first two points of enquiry?
From my conversation with Stephen, I understand that he received pretty clear advice regarding the first two items, but needed to seek further information on the remaining two - and that he was emailing Lien about this. I believe it was also Lien who sent him the internal email with what the FSU could and couldn't yet confirm, and I requested that he ask Lien to contact me directly.
While I'm waiting for Lien to contact me, can I please have the Union's responses on the first two points, ASAP, please?
The position I'm in is causing me a lot of distress and uncertainty is only making it worse so I would greatly appreciate it if someone could please email me whatever information the FSU is definitive on, so I at least have that while I await further advice on the remaining items.
Thanks in advance for your prompt attention to this
[39] Later that day, the Applicant had a telephone discussion with the FSU. Following that telephone call, the FSU sent the correspondence to the Applicant stating:
Thank you again for your time on the phone today.
In response to your questions below as you're no longer an employee of NAB you are not eligible to lodge a general protections dispute (not involving dismissal) application in the Commission.
In relation to a general protections claim involving dismissal, the time limit to lodge an application was 21 days from your last day of employment at NAB, which I understand was 9 April 2025. This type of general protections claim would have involved you asserting that your redundancy was adverse action taken by NAB for a prohibited reason, such as you exercising your workplace right to make a complaint about your employment, for example.
In relation to a dispute under the NAB Enterprise Agreement 2024, similarly, as you're no longer an employee of NAB you're not covered by the Agreement anymore, which means you aren't eligible to lodge a dispute under the dispute resolution procedure.
As promised, I will talk with Stephen on Monday about next steps which includes contacting NAB to arrange a meeting to discuss your matters in the hope that we can negotiate a settlement on your behalf. If you could please list those items for discussion, that would be helpful.
[40] On 22 September 2025, the Applicant had another discussion with the FSU in which the Applicant stated that she was upset with the FSU because the advice provided by the FSU did not state that an application for an extension of time could be made. The Applicant stated that she repeatedly requested the FSU to assist her, but those requests were refused because the FSU considered any dismissal-based application was unlikely to succeed because of the delay.
[41] On 3 October 2025, the Applicant lodged the Application.
[42] Although the Applicant stated in the Application that her dismissal took effect from 9 April 2025, during the proceedings, the Applicant submitted that the date of dismissal should be 12 September 2025 - the day the Respondent provided its response to the December ER Complaint.
[43] I do not accept that submission. An application made under to s.365 of the FW Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission may allow.
[44] Having regard to the evidence before me, it is abundantly clear that the Applicant's dismissal took effect on 9 April 2025 and that the Applicant was aware that it took effect on that day. That the Applicant had an ongoing grievance relating to workplace bullying, discrimination, and harassment does not change the date the dismissal took effect.
[45] The Applicant's reliance on authorities that deal with applications for the Commission to deal with disputes under s.739, where the dispute was commenced prior to a dismissal does not assist her. Nor does the Applicant's reliance on the decision in Lucy Calvert v Westpac Banking Corporation [2025] FWC 878 where it was held that the unfair dismissal system and applicable time limits are not conditioned by employee preferences as to what action they may pursue.
[46] For these reasons I find the date the Applicant's dismissal took effect was 9 April 2025.
[48] 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.
[49] 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.
[50] 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.
[52] I now consider these matters in the context of the GP Application.
[54] The primary reason for the delay advanced by the Applicant is set out in her written submission as follows:
43. The primary delay consists of two interrelated parts:
'In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.
(iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be considered.'[9]
[56] Having regard to these principles and the evidence before me, I am not satisfied that there is any basis to find that representative error is an acceptable or reasonable explanation for the following reasons.
[57] First, the Applicant has maintained that the December ER Complaint is a dispute proceeding under s.73 of the NAB Enterprise Agreement 2024. If that is the case, then the advice of the FSU is correct in that the matter can only be referred to the Commission if it remains unresolved after Step 4.
[59] Third, the Applicant's main grievance with the FSU's advice is that the FSU did not inform her that she could apply for an extension of time in their correspondence dated 19 September 2025. I do not accept that omission, even if it could be described as an error, can form the basis for the delay. At that stage, the Applicant was well beyond the 21-day time limit and based on her own evidence was aware of the 21-day limit and that she could apply for an extension of time - demonstrated by her questioning whether her circumstances would constitute 'exceptional circumstances' on 4 September 2025.
[60] Accordingly, I do not accept that representative error is an acceptable or reasonable explanation for the delay.
[63] In conclusion, I do not consider the Applicant has an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
[66] Having regard to the material before me, I am satisfied that the Applicant took some action to dispute the dismissal through the additional information submitted on 31 March 2025. In this correspondence, the Applicant raised the issue of the Respondent engaging 3 external Release Train Engineers so soon after the restructure was implemented and while she was "on deployment". In circumstances where the Applicant was raising these issues right up until the last day of her employment, the Respondent can hardly say it was allowed to believe the matter was finally concluded.
[67] I consider this factor weighs in favour of a conclusion that there are exceptional circumstances.
[68] The Respondent submitted that if an extension of time is granted, it would suffer prejudice arising from the costs associated with defending the proceedings, the irrelevant and historical nature of the allegations, and that Applicant's 2up manager is no longer employed by the Respondent and is employed by a competitor.
[70] Accordingly, I accept that some prejudice will accrue to the Respondent if an extension of time is granted. I consider that this factor weighs against a conclusion that there are exceptional circumstances.
[71] The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials.
[72] The Respondent submits that it went through a bona fide restructure, engaged in extensive consultation, and there can be no issue with selection as the Applicant did not express interest for the remaining position. Ordinarily, this would point towards the merits not being strong.
[73] However, there is no dispute that the Respondent engaged 3 external Release Train Engineers soon after the restructure was implemented and while the Applicant was "on deployment". The Respondent contends that the engagement of those persons does not undermine a decision made some months earlier. While there is no evidence as to the specifics of those engagements - such as the number of hours those persons are engaged each week, or the duration of any engagement - it is unclear why the Applicant was not offered the opportunity to redeploy to one of those positions during her "on deployment" period.
[74] In these circumstances, it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[75] 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.
[76] The test of 'exceptional circumstances' establishes a 'high hurdle'. Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.
[77] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time under s.366(2).
[78] The Application is dismissed. An Order to that effect will be issued with this decision.
T. Wong of counsel with M. Bowe, for the National Australia Bank.
[2] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].
[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].
[6] Carlito Cruz v Australia Post Corporation [2008] AIRCFB 452 at [35].
[12] Coles Supermarkets Australia Pty Ltd v Alexander Tapier [2021] FWCFB 2559 at [25]; Matthew Dakin v Farmgate MSU Pty Ltd [2022] FWC 1707 at [4]; Sxa Fang Chong v SSM International Pty Ltd [2022] FWC2591 at [18].
[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[14] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.
[16] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 556_; Brodie-Hanns v MTV Publishing Ltd_ (1995) 67 IR 298 at 299-300; GHD Pty Ltd T/A GHD v Kevin Alan Black [2023] FWCFB 38 at [51]; Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 at [85]- [86].
Printed by authority of the Commonwealth Government Printer
Ms Jean Buckley
National Australia Bank [2026] FWC 793
(1995) 67 IR 298
(1996) 186 CLR 541
(1997) 74 IR 413
(1988) 105 IR 1