Ms Urooj Qazi [2026] FWC 299 (4 February 2026)

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - application dismissed.

[1] Ms Urooj Qazi (Applicant) has made an application pursuant to section 365 of the Fair Work Act 2009 (the Act) in which she alleges she was dismissed in contravention of Part 3-1 of the Act. By that application, which was prepared by her solicitors and included written submissions and numerous annexures, the Applicant says that her dismissal took effect on 25 June 2025. This is consistent with the date stated in a letter from her former employer, which is expressed as a "notification of redundancy".

[2] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The present application was not made within that time frame. Instead, it was lodged via e-mail on 15 December 2025 (a physical copy was also subsequently received on 19 December 2025), 173 days after the dismissal took effect, and 152 days after the expiry of the applicable time limit.

[3] Section 366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

[4] This decision deals exclusively with the question of whether an extension of time will be provided. Consistent with the information contained in section 4 of the application form completed on the Applicant's behalf, this issue has been determined on the basis of the material suppled in and with that application.

• [5] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd [1] where it was held that:

"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 regular occurrence, even though it can be a on 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."[2]

[6] A finding of exceptional circumstances is necessary but not sufficient to permit an extension of time. A finding of exceptional circumstances merely enlivens the Commission's discretion to extend time, having regard to relevant considerations.

• [7] Where paragraph (a) of subsection 366(2) requires the reason for "the delay" to be taken into account, the relevant delay is to be taken to be the period between the expiry of the time limit (in this case 16 July 2025) and the filing of the application (in this case 15 December 2025), and does not include the period from the date the dismissal took effect to the end of the 21 day period. Nonetheless, events and circumstances preceding "the delay" may be considered for the purposes of determining the reason for "the delay" and ultimately whether that reason supports a finding that there are exceptional circumstances.[3] An acceptable explanation of the entirety of the delay is not required to make a finding of exceptional circumstances, however it is relevant to have regard to whether the applicant has provided an explanation for the entirety or any part of the delay.[4] Three explanations were offered in this regard.

[8] The first explanation for the delay was a submission by Applicant that her mental state was severely effected by the dismissal and that this prevented her from filing her application in time. Reliance was placed in this regard on a report of her General Practitioner, Dr Suleman, a copy of which was supplied with the application. I am not satisfied that the medical report justifies the submission made. For one, the report is dated 24 October 2025, nearly four months after the employment ended, and is based on the Applicant having attended an appointment with Dr Suleman "recently". Whilst it is correct that the report describes the Applicant as being "in a state of significant psychological distress", and says that the Applicant "is suffering from an adjustment disorder with mixed anxiety and depressed mood", it clearly attributes that presentation to a combination of circumstances. I cannot be satisfied that all of those circumstances have persisted throughout the significant period of delay in this case and cannot speculate what might have been said by Dr Suleman in relation to whether some but not all of those causative circumstances were present at particular times. Certainly the redundancy is one factor relied on, but the other factors are her former employer's inability to provide a copy of her employment contract (with the time of that event not specified), "recently" learning than her job has been readvertised (which the Applicant says she became aware of on 25 September 2025, 3 months after her dismissal took effect), and financial stressors (in circumstances where the Applicant said she was provided with a lump sum valued at a little over 4.5 weeks pay upon termination). The report obviously also says nothing about the circumstances that persisted in the period of more than 7 weeks after it was written until the Application was filed. Furthermore, the report does not actually offer an opinion that the applicant lacked the mental capacity to lodge her application, at any time. It rather suggests that, as at the time Dr Suleman saw the Applicant, she was actively considering taking some form of action to dispute her dismissal - there is no other rational explanation for the closing sentence of that report, which states "This letter is provided to support her case concerning her dismissal".

[9] The second explanation submitted on behalf of the Applicant is that "during the period 25 June 2025 to present, the Applicant struggled immensely with the management of symptoms arsing from her pregnancy complications and indeed she continues to experience these difficulties". Logically then, she continued to experience those difficulties but was self-evidently capable of lodging the present application notwithstanding. It is elsewhere stated in the submissions that the "height of those pregnancy complications" was when the redundancy occurred. As at that time, the Applicant was working, although had requested to work from home to better manage those complications and provided a report of Dr Suleman dated 18 May 2025 (also provided with the present application) in support of that request. That report cited fatigue, dizziness and a risk of fall. The October 2025 report makes no mention of those symptoms.

[10] The third explanation is related to the others, in that it is submitted that the Applicant's "primary objective in the period from 25 June 2025 to present" was her health and that:

"the moment the Applicant has regained some level of control over management of her symptoms arising from the pregnancy complications, she made efforts to explore the making of the present application through consultations with lawyers. Despite her best intentions, not every lawyer the Applicant consulted with had the capacity to assist with the present application and this added to the period of delay."

The submissions do not identify when that "moment" was. As noted above, the submission state that the "height of those pregnancy complications" was when the redundancy occurred.

[11] The Applicant's material does not draw attention to or seek to explain the fact that whilst the application and its accompanying written submissions were dated on 11 December 2025, they were not lodged until 15 December 2025.

[12] The Applicant's material discloses no matters relevant to this consideration other than the making of the present application. I treat it as neutral in my evaluation.

[13] The Applicant's materials assert, correctly, that there is no evidence of any prejudice to the respondent. Certainly the delay in this case, whilst not insignificant, is not so extensive as to lead to a presumption of prejudice. I treat this consideration as neutral in my evaluation.

• [14] In determining this extension of time application, there is no requirement to provide detailed evidence on the merits of the substantive matter. This would not have been an appropriate course. Rather, the instant task insofar as it concerns the merit of the matter is to determine whether the Applicant can establish the matter is not without merit.[5]

[15] The key allegations are that the dismissal occurred because of race, colour, physical disability, pregnancy and religion and because the Applicant made a request for a flexible working arrangement and made complaints about her employment. At least some of the complaints alleged, as well as the request for a flexible working arrangement, were said to have been made proximate to the employment ending. Further, the Applicant foreshadows evidence being given that she was discouraged from making an application for a flexible work arrangement by her manager, on the basis that people who make such requests "are usually first to be made redundant". As noted above, the ending of the employment was described by the former employer to be a redundancy.

[16] There will likely be a factual dispute between the parties relating to the allegations the Applicant wishes to press. For my part I do not need to resolve those facts. The claim as articulated to me is not without merit, but much will turn on the resolution of any contested facts. It is not appropriate in these circumstances to treat the merits of the Application as other than a neutral matter.

[17] There was no comparative material relied on that is relevant to this consideration. The furthest the Applicant's material goes is to assert that it would be fair and just to allow the Applicant, and any other persons in similar positions, to pursue an application of this type out of time. There is no basis to treat this as other than a neutral consideration.

[18] I am required to determine whether any of the matters identified above, either individually or collectively, are sufficient to establish exceptional circumstances and whether such exceptional circumstances warrant the exercise of my discretion to extend time for the making of the application.

1. In the circumstances of this matter, with other matters being neutral, the key factor in my consideration is the reasons for delay. The reasons for delay require careful consideration. The absence of an explanation for any part of the delay will usually weight against the Applicant, however a credible explanation for the entirety of the delay will usually weigh in the applicant's favour. Nevertheless, all of the relevant matters must be taken into account.[6]

• [20] The first explanation for the delay related to the Applicant's mental state. The decision of Deputy President Easton in Bianca Mamo v. ICLED Australia[7] provides clear guidance on how the Commission can take into account the experience of mental illness in an assessment of exceptional circumstances in the relevant sense. Deputy President Easton reviewed the caselaw relating to mental incapacity in extension of time applications in the Commission and identified the following principles relevant to the consideration of that reason as reason for delay:

(a) stress, shock, confusion and similar conditions (as a response to a dismissal) are not exceptional circumstances in and of themselves;

(b) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant's capacity to lodge the application within the statutory time limit;

(c) the evidence should positively demonstrate that the applicant's depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame; and

(d) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient.

[21] In my view, these matters are relevant not only for establishing whether a level of incapacity rises to the level of being exceptional, but also whether, as a matter of discretion, the exceptional circumstances justify the extension sought. In my view, the Applicant's submissions are not supported by evidence that supports a conclusion that the Applicant lacked the capacity to lodge an application throughout the period of delay that occurred in this case. I am not satisfied on the status of the material advanced that such incapacity existed. I am prepared to accept, on the basis of the material advanced in support of the first and second explanation, that it is more likely than not that the Applicant experienced personal circumstances with health impacts that, in their combined effect, were out of the ordinary course and therefore exceptional. The precise duration of those effects, in terms of their impacts on the capacity of the Applicant to file an application within time or with a shorter period of delay, are not ascertainable on the strength of the material provided.

[22] The third explanation, together with the final sentence in Dr Suleman's report of 24 October 2025, is consistent with the Applicant taking steps to explore enforcing her rights (whether by making this application or otherwise) for some period prior to her actually making the present Application. Whilst the application ultimately provided by her solicitors was detailed and accompanied by supporting material, there is no requirement for such representation and an application can be prepared on a user friendly form. I do not regard the explanation that the Applicant had difficulty and experienced delays in finding a lawyer who was able to assist her as exceptional or otherwise weighing in favour of the discretion to extend time.

[23] In the result, I am not satisfied that the exceptional circumstances I have found, with all their imprecision, are such as to warrant as a discretionary matter the granting of the extension of time required to allow the matter to proceed. In particular, in the absence of medical evidence, I am not satisfied as to the precise extent and duration of the Applicant's reduced capacity to file the application. Further, I regard the Applicant's conduct in spending some period of time searching for a lawyer to act for her rather than filing the application herself as indicative of some level of capacity to prosecute the matter earlier than she ultimately did. For those reasons, I decline the grant the extension of time and I must dismiss the Applicant's application.

[1] [2011] FWAFB 975.

[3] Kurtev v. KCB Australia & Anor [2025] FWCFB 13 at [24], Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [17].

[4] Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [18].

[5] Withers v. Contare [2022] FWC 967 at [33]- [37].

1. [6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39].

[7] [2021] FWC 3903.

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