s.365 - Application to deal with contraventions involving dismissal

Application alleging contravention of general protections provisions - extension of time - financial hardship - whether exceptional circumstances exist - application dismissed.

• [1] This decision concerns the issue of whether there are 'exceptional circumstances' within the meaning of s.366(2) of the Fair Work Act 2009 (Cth) (Act) such that the applicant in this matter, Ms. Keona Delaney (Applicant), should be permitted to proceed with an application under Part 3-1 - General Protections - of the Act against her former employer Reece Australia Pty Ltd (Respondent).

• [2] For the reasons which follow, I have concluded that there are no exceptional circumstances as contemplated by the relevant provisions of the Act. It follows that the application must be dismissed.

• [3] On 25 February 2025 the Applicant filed an application under s.365 of the Act against the Respondent alleging that her employment had been terminated by the Respondent in breach of Part 3-1 of the Act.

• [4] Under s.366(1) of the Act, an application of this kind must be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission (Commission) allows under s.366(2). It was not in issue that the Applicant's dismissal took effect on 31 January 2025 and that the application was therefore out of time by a period of 4 days.

• [5] The Respondent objected to the application on the basis that it was not made within the 21-day time period and maintained that there were no exceptional circumstances to justify an extension of time. The Applicant asserted that exceptional circumstances existed and asked the Commission to extend time.

• [6] Section 366(2) sets out the circumstances in which the Commission may extend time for an application of this kind and the matters which are to be taken into account in determining whether exceptional circumstances exist. It provides:

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

• [7] I deal with each of the matters referred to in s.366(2) below.

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

• [8] The Applicant argued that her application had been delayed because of the financial difficulties she had faced as a result of losing her job. The Applicant said that after she had lost her job, her family had been solely reliant on the income of her partner and her main priority had been to cover bills and expenses and take care of her young children. The Applicant said that because of financial pressures, she had to remove her children from daycare and care for them at home. Further, the Applicant submitted that since the date when her employment had come to an end, she had been actively seeking alternative employment and had applied for Centrelink payments.

• [9] The Applicant gave evidence that she contacted the Commission in early February and discussed the option of filing the present application. The Applicant said that at that point she was unaware that the 21-day time limit applied and only became aware of that at a later time. The Applicant said that her finances after the termination of her employment were insufficient to meet the filing fee for the application and that she was unaware of the option that was available to have the fee waived. The Applicant said that had she known of the option, she would have utilized it and filed the application within time.

• [10] The Respondent said that had the Applicant been experiencing financial difficulties it was open to her to seek a waiver of the application fee for the present application but that the Applicant had not done so. The Respondent submitted that the reasons provided by the Applicant to explain the delay were inadequate and did not support a conclusion that there were exceptional circumstances.

• [11] In Shaw v ANZ Bank,[1] the Full Bench noted that the delay is the period commencing immediately after the 21-day period for lodgement until the date the application was lodged, although circumstances arising prior to that delay may be relevant to the reason for the delay. An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where an applicant has not provided any reason for any part of the delay.[2] This is because the reason for delay is a factor forming part of the overall assessment required by s.366(2).[3] A credible explanation for the entirety of the delay would weigh more heavily in favour of a finding of exceptional circumstances. Conversely, a failure to provide a credible explanation for any part of the delay would tend to weigh against such a finding.[4]

• [12] It is not uncommon for employees to experience some financial hardship or difficulty following the termination of employment. It is also commonplace for employees to spend some time in the period immediately after termination seeking access to social security payments and/or alternative employment. This would account for some part of the Applicant's time after the termination. However, the Applicant would still have had some time available to consider and attend to the filing of an application. The problems described by the Applicant were undoubtedly a cause for concern for the Applicant and her family but do not provide a reasonable explanation to account for the delay in filing an application within the time period.

• [13] Mere lack of knowledge of the options for the waiving of filing fees for applicants experiencing financial difficulties is unexceptional. A lack of knowledge of the limitation period is also commonplace. These matters provide little assistance to the Applicant in explaining the delay.

• [14] In my view the reasons for the delay provided by the Applicant do not weigh in favour of a conclusion that there are exceptional circumstances.

Sub sections 366(2)(b) - Any action taken by the person to dispute the dismissal

• [15] The Applicant conceded that she did not take any steps to dispute the dismissal. There is nothing under this heading that weighs in the Applicant's favour in the assessment of exceptional circumstances.

Sub sections 366(2)(c) - Prejudice to the employer

• [16] There was no evidence about prejudice to the Respondent, including prejudice caused by the delay. I am unable to conclude that such prejudice exists here. I regard this as a neutral consideration in the assessment.

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

• [17] As to the merits of the application, the Applicant has asserted a contravention in the application which the Respondent denies. The Applicant says that she was terminated for reasons related to her pregnancy. The Respondent contended that the Applicant did not successfully complete a probation period and was terminated solely for reasons related to time and attendance issues and the non-adherence to company policies.

• [18] It is not generally appropriate for the Commission to resolve all contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).[5] The determination of these issues would require a full hearing on the evidence should the matter proceed. On the material available, I am unable to come to a firm view as to the merits. I regard the merits of the application as a neutral consideration in the overall assessment.

Sub sections 366(2)(e) - Fairness as between the person and other persons in a like position

• [19] There was no evidence about fairness considerations as between the Applicant and other persons in a like position. This is also a neutral factor here.

• [20] In cases such as these, the Applicant must satisfy the Commission that there are exceptional circumstances which warrant the Commission exercising its discretion in favour of granting an extension of time.

• [21] 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. 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]

• [22] Having taken into account the matters set out above, I am not satisfied that there are exceptional circumstances in this case. Accordingly, there is no basis for an extension of time.

By video using Microsoft Teams at 10:00am AEDT on Tuesday 1 April 2025.

[1] [2015] FWCFB 287.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

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