s.365 - Application to deal with contraventions involving dismissal

C4U Nursing Agency Pty Ltd Trading As Caring For You Nursing Agency

Application to deal with contraventions involving dismissal - jurisdictional objection - application made outside of 21-day time limit - no exceptional circumstances - application dismissed.

• [1] On the 1 November 2025, Ms Shanllie Richards (the Applicant) lodged an application (the Application) pursuant to s 365 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment on 1 September 2025 by C4U Nursing Agency Pty Ltd trading as Caring For You Nursing Agency (the Respondent) contravened her workplace rights.

• [2] Section 366(1) of the Act states that a general protections dismissal dispute application must be made 'within 21 days after the dismissal took effect', or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 366(2) of the Act. The period of 21 days ended at midnight on 22 September 2025. The Application was therefore filed 40 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s 394(3) of the FW Act.

• [3] Following allocation of the matter to my Chambers on 26 November 2025, I reviewed the Form F8 filed by the Applicant and the Form F8A filed by the Respondent and decided it was appropriate to determine the matter on the papers.

• [4] Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute if an application is made under s 365. For an application to be validly made under section 365, it (the application) must be made within 21 days after the dismissal took effect or such further period as the Commission allows pursuant to section 366 of the Act.

• [5] The Act allows the Commission to extend the period within which a general protections dismissal dispute application can be made, only if it is satisfied that there are 'exceptional circumstances.' 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.[1] 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.[2]

• [6] 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.

• [7] 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 like position.

• [8] 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. I now turn to consider these matters in the context of the Application.

• [9] For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 22 September 2025. The delay is the period commencing immediately after that time until 1 November 2025, although circumstances arising prior to that day may be relevant to the reason for the delay.[3]

• [10] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4] An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[5].

• [11] The Applicant submits in her Form F8 that she had not intended to take matters further but focussed her efforts instead on securing alternate employment in the wake of her dismissal. She further contends that had she not done so she would have been homeless. Having apparently obtained alternate employment, the Applicant turned her attention to filing the Application. The submission is rejected. The Applicant has not identified the time spent by her on seeking alternate employment, when such employment was obtained or how those efforts prevented the completion and filing of what is a straightforward application form. I also note that the Applicant filed a s 773 unlawful termination application on 16 October 2025, which while subsequently withdrawn on 23 October 2025, does indicate that the Applicant was able to file an application earlier than she did in the present case.

• [12] The Applicant has failed to provide a credible explanation for any part of the delay in filing the Application. This weighs against a finding of exceptional circumstances.

• [13] The Applicant filed a s 773 unlawful termination application on 16 October 2025. That application was subsequently withdrawn on 23 October 2025. In circumstances where the s 773 application was filed 23 days after the 21-day statutory time period passed, the fact that she made took action to dispute her dismissal does not weigh in favour of a conclusion that there are exceptional circumstances.

• [14] The Application was filed 40 days outside of the 21-day period. I find in the circumstances, that because of the length of the filing delay there would be some prejudice to the Respondent if an extension of time were to be granted. This weighs against a finding of exceptional circumstances.

• [15] The Applicant claims to have suffered adverse action as a consequence of exercising a workplace right, was subject to coercion, was discriminated against on the basis of age and her national extraction or social origin and was dismissed for the purpose of re-engagement as a casual employee. The latter assertion is plainly wrong as the Applicant was in fact engaged as a casual employee at the time of her dismissal. The balance of contentions are barely supported by the explanation of the claimed action taken by the Respondent. She made non-specific claims of having been threatened that she would not work again in one facility after standing up for herself, was subjected to intimidation, had her knowledge questioned, had false statements made against her, was rudely forced to sit down during a handover, was a victim of abuse of authority and had her character and reputation traduced.

• [16] The Respondent is a labour hire nursing agency that supplies nurses to various healthcare services in NSW, Victoria, South Australia and Queensland. It rejects the Applicant's contentions that it has taken adverse action against her for her any of the alleged prohibited reasons. It submits that the operative and only reason for her dismissal was its inability to offer any further shifts after 1 September 2025 because approximately eight host employers refused to accept the Applicant as an agency Assistant in Nursing (AIN). This followed several instances of alleged misconduct including; sleeping while on duty, failing to follow reasonable instructions, persistent tardiness, disappearing without notifying the host employer and delayed care to residents in care facilities.

• [17] In applications of this kind, being interlocutory in nature, it is inappropriate to express a concluded view about the merits of an application. Nor is it possible to thoroughly test the disputed claims. In any event, in applications under s.365, the Commission's function at this stage of an application is to convene a conference, not determine the merits. It is sufficient for present purposes to note that on the material available to me, the Applicant does not appear to have a strong case. The Respondent has raised a prima facie defence. The merits of the case do not favour a finding of exceptional circumstances.

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

• [18] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.

• [19] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

• [20] Having regard to the matters I am required to take into account under s 366(2) of the Act, and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

• [21] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2) of the Act. Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

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