s.365 - Application to deal with contraventions involving dismissal

General protections application involving dismissal - application filed out of time -circumstances not exceptional - application dismissed.

[1] On 20th September 2025, Ms Yangkajia Wang (the Applicant) lodged a general protections application against Enel X Australia Pty Ltd (the Respondent) under s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging that on 29 August 2025, she was dismissed in contravention of the general protection provisions of the Act.

[2] Section 366(1) of the Act states that an application such as this must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 366(2). The period of 21 days ended at midnight on 19 September. Ms Wang's application was lodged less than 10 minutes outside the 21-day period.

[3] Following allocation of Ms Wang's application to my Chambers, Directions were issued to the parties for the filing of material in relation to the jurisdictional issue of the Application being out of time. Both the Applicant and the Respondent filed written submissions and supplementary material in support of their positions. Ms Wang requests the Commission exercise its discretion and grant her an extension of time. The Respondent opposes the Commission doing so, and seeks the application be dismissed because it was not filed within the time required by the statute.

[4] On review of the material, my Chambers asked both parties to indicate if they wished the opportunity to examine the material presented and proceed to a hearing or if they were content to have the matter determined on the material presented. Neither party sought the opportunity for a hearing. In these circumstances, I consider it appropriate to determine the matter on the papers as set out below.

• [5] The Act allows the Commission to extend the period within which a general protections involving dismissal application must 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(3) 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 similar position.

[8] I consider each of these required factors in the context of this application below.

• [9] The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. 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.[3]

[10] The Applicant identifies several different reasons for the delay. Foremost amongst these are the mental health and psychological issues she has been suffering from and being treated for arising from the impact of how she was treated at work. Because of these issues, the Applicant's submissions are that on her therapist's advice she travelled to Shanghai during the 21-day period and filed her application from there, within time at 10.05pm on September 19th. She accepts 10.05pm Shanghai time is 12.05pm Australian Eastern Standard Time (AEST) and that her application is technically late. The Applicant further identifies that she confronted technically difficulties with the FWC lodgement portal when filing her application that compounded the delay. Adding that she waited 5 hours for a medical appointment on the 19th of September only to have it cancelled at 7.19pm, and that this distressed her, impacting her capacity to file her application. Concluding, that as a self-represented party she encountered challenges that added to the delay.

[11] Turning to the first of these reasons for the delay, the Applicant's mental health and psychological issues. Ms Wang's submission makes clear that as a consequence of how she was treated at work she has been experiencing stress, anxiety and depression that significantly impacted her mental health and capacity. It is also clear she has been proactively seeking treating for these conditions. I am satisfied the evidence presented establishes this to be the case.

[12] Accepting this evidence, I am satisfied that Ms Wang is a person suffering from mental health challenges. However, it does not necessarily follow that I accept that Ms Wang has provided reasons for the delay that warrant the granting of an extension of time.

[13] Critically, the evidence Ms Wang has presented takes her submission no further. It does not establish there are exceptional circumstances arising from her condition or provide any suggestion her condition has had any impact on her cognitive, administrative or functional capacity limiting her capacity to file with the Commission. The extent of the evidence presented is a GP Mental Health Plan identifying a diagnosis of depression/anxiety, supported by medical appointments.

• [14] On its own, I do not accept the Applicant's mental health issues present a valid reason for the delay.[4]

[15] Turning to the next reason Ms Wang identifies - the technical difficulties she confronted using the FWC portal and the fact her application was filed only minutes late, and within time considering she was filing from Shanghai. Ms Wang has not presented any evidence to support or further describe the "technical difficulties" she says confronted her on the FWC portal. Nor does she submit these difficulties are exceptional, unusual, out of the ordinary course or uncommon. The only evidence she has produced to support this submission confirms that on both the 18th and 19th of September her search engine accessed the FWC website from approximately 11.30pm in Shanghai. This evidence takes her submission no further and I do not accept any technical difficulties she may have faced are a valid reason for the delay.

• [16] I have considered the relatively minor length of the delay and the submission it was within time from Shanghai. On its own the length of the delay takes the matter no further. There must be an acceptable reason for the delay.[5] In reaching this conclusion, I have regard to the remarks of the Full Bench in Johnstone v Scotch College below:[6]

"We note that the statutory requirements as to the time in which an unfair dismissal application may be filed is not a mere technicality. Such time limits are a fundamental party of the statutory framework and must be properly considered by decision makers"

[17] I also consider there is nothing exceptional or unusual in the fact Ms Wang chose to fly to Shanghai within the 21-day period because her therapist advised her to. Keeping track of international time zones is a reality of international travel and not at all uncommon.

[18] The final reasons Ms Wang submits for the delay are she was distressed because she had a medical appointment delayed and then cancelled on the afternoon of 19th September and that she was challenged as a self-represented party. While I accept having medical appointments cancelled and having to see specialists can be distressing, there is nothing exceptional or uncommon about this being the case. There is also nothing exceptional or uncommon in self-represented parties perhaps finding accessing the FWC website and other legal process challenging. Despite this being the case, many thousands manage to successfully do so each year.

[19] 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. Each circumstance of the ending of a job and its impact will be different and need to be considered on its own merits.

[20] I do not consider any of the reasons advanced for the delay by Ms Wang to be "unique" or "unprecedented", and I am not satisfied that they satisfy the criteria of being "out of the ordinary course", "unusual" or "uncommon". I have considered these reasons both individually and together in reaching this conclusion.

[21] I am also reinforced in this conclusion by the evidence in this case is that during the 21-day period Ms Wang was also able to engage in communication with the Respondent about recovery of an unauthorised overpayment, attend medical appointments, and travel to Shanghai. This evidence does not present me a sound basis to be satisfied that she did not have the mental or physical capacity to commence and complete filing her application within the required timeframe.

[22] Therefore, I am not satisfied Ms Wang has provided a credible and reasonable explanation for the period of the delay. As such, this factor weighs against the granting of an extension of time.

Action taken by the person to dispute the dismissal

• [23] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[7]

[24] Ms Wang submits that she took all reasonable steps to understand her rights and dispute her dismissal, including contacting her union and begin drafting her application. While I accept this to be the case, I do not consider these steps amount to "taking action to dispute the dismissal." The Respondent submits it has not received any communication from Ms Wang about the ending of her employment seeking to dispute her dismissal since the 22nd of August. The only communication received relates to a dispute between the partes about an unauthorised overpayment. The evidence presented supports this to be the case.

[25] In these circumstances, I do not consider this factor weighs in favour of the Applicant and determine it should be considered a neutral factor in the circumstances of this case.

Prejudice to the employer (including prejudice caused by the delay)

• [26] Prejudice to the employer will weigh against granting an extension of time.[8] However, the "mere absence of prejudice to the employer is an insufficient basis to grant an extension of time".[9]

• [27] A long delay gives rise "to a general presumption of prejudice".[10]

• [28] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.[11]

[29] Ms Wang submits there is no prejudice to the employer that would arise from the relatively short delay. The Respondent argues that prejudice would be occasioned if an extension of time is granted because they face a general presumption to rebut the basis of the application.

[30] The Commission's consideration of this factor looks to prejudice beyond the usual requirements of having to respond to a claim. In these circumstances, I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that weights in favour of the granting of an extension of time.

• [32] The merits of an application are relevant; however, the assessment of the merits for the present purposes is limited to, in effect, a preliminary consideration.[12] Further, the primary consideration is whether the Applicant, Ms Wang, has an arguable case.[13]

• [33] In Telstra-Network Technology Group v Kornicki,[14] the Full Bench considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench stated:[15]

"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."

• [34] The substantive merits of this application have not been fully tested and as identified by the Full Bench of the Commission in Kyvelos v Champion Socks Pty Ltd, the Commission "should not embark on a detailed consideration of the substantive case" for determining whether to grant an extension of time to an Applicant to lodge their application.[16]

[35] The Respondent submits that Ms Wang's application is without merit and that the substantive and operative reason for her termination was her underperformance. Ms Wang's general protections application identifies a series of contraventions of the general protections provisions she maintains have contributed to her condition.

[36] The factual context and merits of these respective positions would need to be further scrutinised in this case, including under cross-examination, if an extension of time was granted for the application to proceed. This being the case, I do not consider the merits of the case tell in favour or against the granting of an extension of time. I consider them to be a neutral factor.

Fairness as between the person and other persons in like position

• [37] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[17] considered this criterion and said:

"[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission."

[38] Ms Wang did not identify any matters currently before the Commission, previously decided or persons in similar position to her own case which might be relevant to this consideration.

[39] The Respondent submits if the Applicant were to be granted an extension of time, she would receive an unfair advantage over others in a similar position to the Applicant because her circumstances are not outside the ordinary course and are, therefore, not exceptional.

[40] I accept the Respondent's submissions as I have set out above. This factor weighs against the granting of an extension of time.

Conclusion: Is the Commission satisfied of exceptional circumstances?

[41] I have set my findings of each of the statutory factors in 366(2)(a) to (e) of the Act above. Two of these factors specifically point against a finding of exceptional circumstances. The other three factors are neutral.

[42] Having considered all the circumstances of this case within the statutory requirements I am required to take into account under s 366(2), and all of the matters raised by the Applicant, I am satisfied that there are not exceptional circumstances. In my view, the circumstances that Ms Wang confronted that I have described above, considered individually or together, do not meet the test of being exceptional. Therefore, there is no basis to allow an extension of time for her application to proceed under s 366(3).

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

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

[4] [2021] FWC 3903 at [24].

[5] See Gostencnik DP in Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479.

[6] [2022] FWCFB 179 at [31].

[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [299] - [300].

[10] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at [556].

[11] Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16].

[12] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at [14].

[13] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34].

[14] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[16] AIRC 10 November 2000 at [14]; See also Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899 at [38].

[17] [2016] FWCFB 6963.

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