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[2026] FWC 287
General information, not legal advice.
Fair Work Commission
2026-02-04
Original judgment source is linked above.
s.365 - Application to deal with contraventions involving dismissal
Application to deal with contraventions involving dismissal - Application filed outside of the statutory timeframe - Application dismissed
[1] On 4 November 2025, Ms Lexie Buenfeld (the Applicant) lodged an application under s.365 of the Fair Work Act 2009 (the FW Act) alleging that her employment was terminated on 13 October 2025 by Metal Manufactures Pty Limited (the Respondent) in contravention of the general protections provisions of the FW Act.
[2] In its Form F8A - Response to a general protections dismissal application, the Respondent raised a jurisdictional objection on the grounds that the application was filed out of time.
[3] The FW Act provides that an application made under s.365 of the FW Act must be made within 21 days after the dismissal took effect, however, the Commission may allow a further period for the application to be made if there are exceptional circumstances which warrant an extension of time.
[4] The Applicant lodged her application one day outside the 21-day statutory timeframe. In her Form F8 application, the Applicant provided that her application was filed late due to her being 'unwell from the workplace'.
[5] The Applicant has provided further submissions and documentation to my Chambers in support of seeking an extension of time to file her application.
[6] In relation to this threshold issue of the application being filed out of time, I have decided to determine the matter on the papers.
[7] Section 366(2) of the FW Act sets out the factors that must be considered when determining whether there are exceptional circumstances warranting the granting of an extension of time. These factors are addressed below.
"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance."
[9] It is not in dispute that the Applicant's employment was terminated on 13 October 2025, and that her application was filed one day outside of the statutory timeframe.
[10] The Applicant submitted that she was medically unfit for the entirety of the statutory timeframe and the period of the delay. The Applicant filed and relied on a medical certificate issued by Berrimah Family Practice on 3 October 2025, which provided that she was unfit to work from 3 October 2025 to 31 October 2025 inclusive. The Applicant submitted that during this period, her health condition significantly affected her capacity to take steps to obtain advice or prepare an application for general protections dismissal.
[11] The Applicant noted that the end of her medical certificate period fell on a weekend, 31 October 2025 (although it fell on a Friday), and that she obtained a further medical certificate, dated 4 November 2025, which provided that she was unfit for the period 2 November to 3 November 2025 inclusive. The Applicant submitted that she lodged her general protections application as soon as she was capable of doing so, on 4 November 2025.
[12] I note that whilst this further medical certificate was signed by a registered medical practitioner, it is a backdated medical certificate and was obtained by the Applicant via an online medical certificate service and not through a live consultation with the certified medical practitioner.
[13] Based on the ease of any member of the public now being able to obtain a medical certificate, without even speaking to a medical practitioner, raises significant questions about the evidentiary value of such certificates. In this matter, the Applicant was able to obtain a medical certificate in this precise manner and was even able to get it backdated. Such a system leaves itself open to abuse. Further, the Applicant has not provided any additional evidence in support of her 'medical condition' to prove that it incapacitated her to the degree which meant she could not file her application within the statutory timeframe.
[14] The legislation is written in precise terms. The 21-day time limit was set by the Parliament to be a strict deadline for general protections applications. The Applicant has not provided a satisfactory reason for the delay which would warrant the granting of an extension of time to file her application. Accordingly, this factor weighs against the granting of an extension of time.
Section 366(2)(b) - any action taken by the person to dispute the dismissal
[15] The Applicant submitted that on 13 October 2025, she had communicated with her manager by text message to confirm that she had provided notice of her absences and the relevant dates. The Applicant also emailed her manager/supervisor, Mr William Newstead, on that same date in response to the termination letter.
[16] The Applicant submitted that on 3 November 2025, she contacted the Respondent's HR team by email requesting a correction of her time records and a copy of her final payslip.
[17] The Applicant submitted that these actions demonstrate that she took timely steps to raise concerns and seek to dispute her dismissal.
[18] I note that the Applicant has confirmed, via the correspondence to the Respondent dated 3 November 2025, that she was in fact able to take actions within the statutory timeframe to dispute her dismissal. Her general protections application was required to be filed with the Commission by 3 November 2025. If the Applicant was able to correspond with the Respondent on that date via email, then I consider that she was able to make a brief online application on that date.
[19] This factor, therefore, weighs against the granting of an extension of time.
Section 366(2)(c) - prejudice to the employer
[20] The Applicant submitted that as her application was filed only one day outside of the statutory timeframe, there would be little to no prejudice to the employer if an extension of time is granted by the Commission.
Section 366(2)(d) - merits of the 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."
[24] The Applicant made brief submissions in relation to the merits of her general protections application. Notably, the Applicant submitted that she was invited to a probationary meeting and subsequently issued a termination letter during a period of medical leave. Further, the Applicant has disputed the accuracy of the reasons relied on by the Respondent in dismissing her.
Section 366(2)(e) - fairness as between the person and other persons in a similar position
[26] The Applicant submitted that it would be fair to grant an extension of time for her to make her application. The Applicant restated that her application was filed only one day late, and was a result of her medical incapacity.
[28] The Commission isn't concerned about whether the Applicant is fit for work during this 21-day period, but whether the Applicant had functional capacity to send an email, fill out a form or talk on the telephone. In this matter, the Applicant sent an email to the Respondent's HR team within the statutory timeframe, clearly showing that she had the mental and physical capacity to also submit her application, which could have been completed and submitted electronically, within the statutory timeframe.
[29] As a result, I am satisfied and find that an exceptional circumstance does not exist in this matter which would warrant the granting of an extension of time.
[30] The Respondent's jurisdictional objection is upheld.
[31] The Applicant's general protections application is therefore dismissed.
[2] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[3] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
Printed by authority of the Commonwealth Government Printer
Ms Lexie Buenfeld
Metal Manufactures Pty Limited [2026] FWC 287