s.365 - Application to deal with contraventions involving dismissal

General protections dismissal dispute - extension of time required - no exceptional circumstances - application dismissed

• [1] Yifan Lu commenced employment with Standard Distributors Pty Ltd (Standard Distributors) as a Digital Performance Specialist on 10 March 2025. Ms Lu was dismissed on 26 June 2025 during her probationary period on the grounds that she was not meeting the requirements of her role. Ms Lu filed a general protections dismissal application on 12 August 2025, which was 26 days after the 21-day filing period expired on 17 July 2025. As a result, Ms Lu needs an extension of time from the Commission to continue pursuing her application.

• [2] I issued directions for the filing of material and listed a hearing regarding Ms Lu's request for an extension of time on 2 October 2025 via video. Ms Lu represented herself at the hearing. I granted permission for Standard Distributors to be represented by a lawyer on the basis this would enable the matter to be dealt with more efficiently. The granting of permission was not opposed by Ms Lu.

• [3] Ms Lu relied on a mixture of evidence and submissions in support of her request for an extension of time. Ms Lu was cross-examined on her evidence. Standard Distributors relied on a witness statement from Vinetha Manthena (Head of Digital Performance). Ms Manthena was also cross-examined on her evidence.

• [4] Under section 366(2) of the Fair Work Act 2009 (FW Act), the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by Ms Lu 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 Ms Lu and other persons in a similar position.

• [5] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

• [6] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 17 July 2025. The delay is the period commencing immediately after that time until 12 August 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2]

• [7] 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.[3] Ms Lu does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Ms Lu has not provided any reason for any part of the delay.[4]

• [8] The reasons identified by Ms Lu for the delay are:

(i) Ms Lu was suffering from mental health challenges including depression after her dismissal.

(ii) Ms Lu is a foreign national and she was not aware of the 21-day filing period.

(iii) Ms Lu initially submitted an unlawful termination application on 31 July 2025 and was subsequently advised by the Commission that she may wish to discontinue that application and file a general protections application.

• [9] In relation to Ms Lu's first reason, the stress or distress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. An applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay.[5] Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[6]

• [10] It is clear being dismissed has upset Ms Lu. However, Ms Lu has not provided any medical evidence which establishes that she was suffering from a mental health condition after her dismissal. I appreciate that Ms Lu would have faced some financial difficulties following her dismissal, particularly as a foreign national. However, I am not satisfied that Ms Lu has provided evidence to establish that she could not afford to attend a medical appointment after being dismissed. Many applicants will face financial hardship after being dismissed. I do not consider it is enough for an applicant to self-diagnose a mental health condition and indicate they could not afford to attend a medical appointment to substantiate that a medical condition was the reason for the delay. That would significantly lower the bar in relation to the exceptional circumstances test which has been referred to as a "high hurdle." [7]

• [11] Given Ms Lu has not provided any medical evidence, I cannot accept that a medical condition is a satisfactory explanation for the delay.

• [12] In relation to Ms Lu's second reason, it is well established that ignorance of the statutory provisions is not a satisfactory explanation for filing an application late.[8] While I accept Ms Lu is a foreign national and has limited knowledge of Australian employment laws, this is a reality for many employees in Australia. I do not consider Ms Lu's ignorance of the filing period and being a foreign national provides a satisfactory explanation for the delay.

• [13] In relation to Ms Lu's third reason, the Commission's case management system records the following events:

• Ms Lu filed an unlawful termination application on 31 July 2025: Matter C2025/7281.

• The Commission's staff tried calling Ms Lu on 1 August 2025 to draw Ms Lu's attention to the fact that she may have filed the wrong application. A letter to this effect was also emailed by the Commission's staff to Ms Lu on 1 August 2025.

• Ms Lu discontinued the unlawful termination application on 12 August 2025 and filed a general protections application.

• [14] Ms Lu's unlawful termination application was filed on 31 July 2025 which was 14 days after the 21-day filing period had expired. As a result, Ms Lu would have been missed the deadline by a reasonably lengthy period even if she had initially filed the correct application. I do not consider Ms Lu's filing of the unlawful termination application provides a satisfactory explanation for the delay for the period of 17 July 2025 to 30 July 2025.

• [15] I am marginally prepared to accept that Ms Lu's filing of an unlawful termination application on 31 July 2025 provides a satisfactory explanation for the delay for the period of 31 July 2025 to 12 August 2025. I use the term marginally because Ms Lu confirmed during cross-examination that she had received an email from the Commission on around 1 August 2025 which indicated Ms Lu may have filed the wrong application. Ms Lu's evidence about why it took until 12 August 2025 to discontinue the unlawful termination application and file a general protections application was not entirely clear. However, I am prepared to accept the delay arose from communication issues between Ms Lu and the Commission and particularly missed phone calls.

• [16] I find that Ms Lu does not have a satisfactory explanation for the delay for the period from 17 July 2025 to 30 July 2025. I do not accept a medical condition, Ms Lu's ignorance of the 21-day filing period, or Ms Lu's filing of an unlawful termination application provides an adequate reason for the delay for this period.

• [17] I have found that Ms Lu has a satisfactory explanation for the delay for the period of 31 July 2025 to 12 August 2025 in that she had mistakenly filed an unlawful termination application. However, I attach slightly less weight to this explanation in the overall assessment of the reason for the delay because it appears Ms Lu could have acted more promptly to file the correct application.

• [18] Ms Lu does not have a satisfactory explanation for the first 13 days of the delay. That is a lengthy period. I consider the absence of a reason for the first 13 days of the delay is more significant than the marginally adequate explanation Ms Lu has for the last 13 days of the delay.

• [19] I find that this factor weighs reasonably strongly against a finding of exceptional circumstances.

What action was taken to dispute the dismissal?

• [20] Ms Lu sent emails complaining about her dismissal to Anna Howarth (Chief Marketing Officer) and David Woollcott (CEO) shortly after being dismissed on 26 June 2025. These actions were taken within the 21-day filing period. Ms Lu also filed an unlawful termination application on 31 July 2025. I am satisfied these were all actions taken by Ms Lu to dispute the dismissal.

• [21] I find this factor weighs in favour of a finding of exceptional circumstances.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [22] I do not consider the delay will result in significant prejudice to Standard Distributors. It is clear from the material filed by Standard Distributors in opposition to an extension of time being granted to Ms Lu that it has retained evidence it can rely upon to defend the application.

• [24] It is well established that "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)".[9]

• [25] The evidence filed by Standard Distributors suggests that Ms Lu was dismissed during her probationary period because she was not meeting the requirements of the role. Ms Lu denies that she was not meeting the requirements of the role and complains that Standard Distributors has not provided any details about the alleged performance deficiencies. It is not possible at this stage to resolve the factual dispute regarding Ms Lu's performance.

Fairness as between Ms Lu and other persons in a similar position

• [27] As a Full Bench has noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[10] In particular, the history of this provision indicates that it refers to "other employees of the employer agitating the same or similar substantive issues".[11]

• [28] The parties have not identified any examples or arguments directed at fairness between Ms Lu and other persons in a similar position.

• [29] I consider this is a neutral factor.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [30] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.

• [31] 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.[12] 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.[13] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension.[14]

• [32] Having regard to all of the matters listed at s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances. I do not consider Ms Lu's actions taken to dispute the dismissal are sufficient to justify finding there are exceptional circumstances. Ms Lu does not have a satisfactory reason for a lengthy initial part of the delay, and the remaining factors are neutral. I consider Ms Lu's circumstances are relatively usual and common and do not constitute exceptional circumstances.

• [33] I decline to grant an extension of time for the filing of the application.

Ms H Schoenherr from Irwell Law Pty Ltd for Standard Distributors.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

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

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

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[5] See Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, YuDuo (Lynda)- [2018] FWCFB 1643, [38], [67].

[6] Becke v Edenvale Manor Aged Care [2014] FWCFB 6809, [9].

[7] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14].

[9] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[10] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

[11] See Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090, [19].

[12] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

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

[14] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

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