Fair Work Act 2009

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] On 16 November 2025, Ms Zeina Habib lodged an application under s.365 of the Fair Work Act 2009 (the Act) in which they allege they were dismissed in contravention of Part 3-1 of the Act.

[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.

[3] The Applicant was dismissed on 17 July 2025, and they made this application on 16 November 2025. The 21-day time limit was on 7 August 2025; therefore, the application is out of time by more than 3 months. For the application to proceed, an extension of time to lodge the application is required. The Respondent opposes the Commission granting an extension, and seeks the application be dismissed because it was not filed within the time required.

[4] 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

• [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] The Applicant identifies several different reasons for the delay. Foremost amongst these are the medical health and psychological issues she has been suffering from. These issues include complex PTSD and schizophrenia. Because of the significant and disabling impact of these conditions she argues she was unable to file her application within time. The Applicant further identifies that she suffers daily trauma tiggers, ongoing pain and fatigue that have further impacted her capacity. She presents a witness statement and supporting medical certificate in support of these submissions. Ms Habib's medical certificate asserts that her conditions impaired her capacity to function and file her application during the period from 17th July to 8th of August 2025. It is clear from this evidence that Ms Habib is proactively seeking treating for her conditions. I am satisfied that Ms Habib is a person suffering from significant medical and psychological challenges. However, it does not necessarily follow that I accept that Ms Habib has provided reasons for the delay that warrant the granting of an extension of time.

• [7] Critically, the independent evidence Ms Habib has presented does not establish that there are exceptional circumstances arising from her conditions or provide a reasonable basis to conclude her conditions had any impact on her cognitive, administrative or functional capacity limiting her capacity to file with the Commission during the required timeframe. The extent of the evidence presented is a Medical Certificate dated 31st January 2026 identifying Ms Habib's diagnosis, her reports of fatigue and chronic psychical systems that impaired her capacity from the day of her dismissal to the day her application was due to be filed with the Commission. While I accept this evidence supports the conditions that Ms Habib is confronted by, I do not accept this evidence supports her assertions she was unable to file her application within the time required. If follows that on their own, I do not accept the applicant's health and medical disabilities present a valid reason for the delay.[3]

• [8] Turning to the other reasons Ms Habib identifies - that she had little to no personal support, or support from her employer, suffered significant personal and financial hardship and was not aware of the 21-day filing requirement. She argues that these factors compounded the health challenges she already faced, further impacting her capacity to make her application within time. Ms Habib submits these circumstances were not regular, routine or normal and that she was confronted with significant personal and financial hardships because of them, which were only made worse by her dismissal. Ms Habib takes these submissions no further or presents any additional evidence to support her contention that these factors and their impact on her were exceptional or "unique". I also note it is also well established there is nothing unusual or uncommon for an employee that has been dismissed to be confronted with stress, shock and financial hardship.[4] Additionally, it is also established by this Commission that ignorance or a lack of awareness of one's rights is not usually an acceptable of reason for delay.

[9] I do not consider any of the reasons advanced for the delay by Ms Habib 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".

• [10] This is further reinforced by the evidence that in the period leading up to the cessation of her employment, the Applicant was able to represent herself and give evidence in unrelated proceedings in the matter of Habib and National Disability Insurance Agency (NDIS).[5] This does not present a sound basis to be satisfied that Ms Habib was so afflicted by the circumstances she was confronted with after her dismissal that she would have been unable to file her application within the required timeframe.

[11] I am, therefore, not satisfied the Applicant 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.

[12] As to s.366(2)(b) steps taken to dispute the dismissal, Ms Habib submits that she took all reasonable steps to dispute her dismissal including speaking to multiple levels of management, contracting the FWO, WorkSafe and attempting internal resolution. The Respondent submits it had not received any communication from Ms Habib seeking to dispute her termination until its receipt of correspondence from the FWC about her application. I have considered these competing submissions and, absent an opportunity for these matters to be tested, I do not consider this factor can be weighed in favour or against the Applicant. Therefore, it is a neutral factor.

• [13] 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.[6] As to fairness (s.366(2)(e)), the Applicant did not identify any matters currently before the Commission, previously decided or persons in similar positions to his own case which might be relevant to this consideration. She submits, however, that not allowing her application to proceed would be a disproportionate hardship given her circumstances and fair to others facing similar challenges. 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 as required by the statue. The purpose of the fairness consideration concerns "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."[7] The Applicant's submissions do not accord with the fairness consideration and, therefore, fails to weigh in support of an extension of time.

• [14] As to the merits (s.366(2)(d)), The Respondent submits that Ms Habib's application is without merit and that the substantive and operative reason for her termination was her ongoing medical incapacity and ability to perform the inherent requirements of the role. Ms Habib argues there was no valid reason for her to be dismissed, that she was not afforded procedural fairness and discriminated against because of her disabilities. 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.[8] The factual context and merits of this case would need to be further scrutinised, 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 to tell in favour or against the granting of an extension of time, at best I consider it a neutral factor.

[15] In conclusion, I am required to be satisfied that there are exceptional circumstances. On balance, the considerations above do not weigh in favour of exceptional circumstances in support of an extension of time.

[16] Having considered the material against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application as provided for in s.366(2). Accordingly, the matter is dismissed.

[1] [2011] FWAFB 975.

[3] [2021] FWC 3903 at [24].

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

[5] [2025] ARTA 483.

[6] Fair Work Act 2009 (Cth) s.366(2)(c).

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

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

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