Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

The Trustee for James Brown Memorial Trust T/A Kalyra Help at Home

Application to deal with contraventions involving dismissal - whether the application was made out of time - extension of time - whether exceptional circumstances exist - application dismissed

• [1] On 17 June 2025 Ms Mengshu Lin made an application under s. 365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute involving dismissal.

• [2] The Trustee for James Brown Memorial Trust trading as Kalyra Help at Home (Kalyra) dismissed Ms Lin from her employment as a Registered Nurse on 15 May 2025.

• [3] For a valid application to have been made, it must be lodged within 21 days after the dismissal took effect; or within such further period as the FWC allows.[1]

• [4] It is not in dispute that the application was filed out of time.

• [5] The discretion of the Commission to allow a further period is only enlivened if exceptional circumstances exist.[2]

• [6] I now consider whether exceptional circumstances exist, having regard to the relevant factors set out in s. 366 (2) of the Act.

• [7] Section 366 (2) of the Act states,

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.

• [8] A day after the dismissal, Ms Lin sought advice regarding a general protections claim as a result of the dismissal. The correspondence sent by Ms Lin seeking advice demonstrates a level of understanding of the general protections provisions and the timeframes.

• [9] On 23 May 2025 Ms Lin received industrial advice that she described as 'discouraging' and as a result of that advice 'there was a long period of time that I tried to move on given his advice'.[3]

• [10] It was not until 16 June 2025 when Ms Lin was discussing her concerns with a friend that she did some more research[4] and filed a claim the following day, 17 June 2025.

• [11] Ms Lin contended that she was given flawed or incorrect advice which caused the delay in making the application. For the reasons set out below, I do not agree with this contention.

• [12] The correspondence detailing the advice given and Ms Lin's recollection of the subsequent phone call with its author, make it clear that a view of the merits of the claim was given based on the facts provided by Ms Lin.

• [13] It is accepted by Ms Lin that the advice she received did not say 'don't file', but rather 'it was heavily indicated that it was not much point going through the whole process' and was not likely to be successful.[5]

• [14] The advice provided to Ms Lin did not say that she was unable to lodge a claim, or did not have jurisdiction to file the application.

• [15] Having received advice on the strength of her claim, it was a decision for Ms Lin whether she sought alternative advice or made an application to the Commission. Between 23 May 2025 and 16 June 2025 Ms Lin chose to accept the advice and did not file an application.

• [16] Ms Lin also raised the following circumstances but they were ultimately not supported by the evidence as being the reasons for the delay:
  • Being a single parent;
  • Emotional stress caused by the dismissal;
  • English being a second language; and
  • The legal proceedings being complex.

• [17] I find that the reason for the delay was the decision by Ms Lin to accept the advice provided to her regarding the strength of her claim and I do not consider this an acceptable reason for the delay.

• [18] This factor weighs considerably against a finding that exceptional circumstances exist.

Any action taken by Ms Lin to dispute the dismissal

• [19] Following the dismissal, Ms Lin took active steps to seek legal advice about the dismissal but did not take any steps to dispute the dismissal with Kalyra. This is a neutral consideration.

Prejudice to Kalyra (including prejudice caused by the delay)

• [20] There is no evidence before me of any prejudice to Kalyra. I find this a neutral consideration.

• [21] Assessing the merits in this matter is difficult given the number of contested facts which are relevant to the claim.

• [22] Ms Lin claims her dismissal was due to complaints made by her, the first on 12 May 2025 regarding the wound care provided by a colleague to a patient and then on 13 May 2025 when she provided feedback as part of a review.

• [23] In their response, Kalyra state that a contributing reason for the dismissal was Ms Lin showing a 'lack of understanding in relation to the wound dressing that same day'[6] but deny the dismissal was due to the complaint that was made by Ms Lin regarding the wound care provided by one of her colleagues.

• [24] Kalyra denies receiving the feedback on 13 May 2025 and therefore denies the dismissal was because of the complaints contained within it.

• [25] It appears that the claim is not entirely without merit. However, based on the preliminary information before me and particularly given the number of contested facts, I am unable to determine whether Ms Lin has an arguable case.

• [26] This factor does not weigh in favour of a finding of exceptional circumstances.

Fairness as between the person and other persons in a like position

• [27] Nothing of particular relevance has been raised in this regard. Accordingly, I consider it a neutral factor.

• [28] The Applicant bears the onus of satisfying the Commission that there are exceptional circumstances, which then enlivens the Commission's discretion to extend the time for making the general protections application.

• [29] The reason for the delay weighs strongly against a finding of exceptional circumstances. All other factors are neutral considerations.

• [30] In weighing the considerations in s. 366(2) of the Act as a whole, I am not satisfied that exceptional circumstances exist.

• [31] The application is dismissed. An order giving effect to this decision will be issued in conjunction with its publication.[7]

M Hii of EMA Consulting Pty Ltd with permission, with R Garner on behalf of the Respondent.

[3] Audio Recording of Hearing at 13:27.

[7] PR790638.

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