s.365 - General protections

General protections application involving an alleged dismissal - application filed outside 21 day time limit - no exceptional circumstances - application dismissed.

[1] On 20 December 2025, an application was lodged on behalf of Mr Nataniel Victor Stavila (Applicant) under s 365 of the Fair Work Act 2009 (Cth) for the Fair Work Commission to deal with a general protections dispute involving a dismissal.

[2] Section 366(1) of the Act states that a general protections application involving a dismissal 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 Applicant's dismissal took effect on 19 November 2025. The 21 day time period expired at midnight on 10 December 2025. The application was therefore filed 10 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 366(2).

• [3] The Act allows the Commission to extend the period within which a general protections 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]

[4] 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.

[5] 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.

[6] 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 will now consider these matters.

• [7] The delay required to be considered in s 366(2)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

• [8] 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.[5]

[9] The Applicant contends that the delay was primarily due to him being on holiday when the dismissal occurred. The Applicant says that he was unable to address the situation in a timely manner and was not informed of the 21 day time limit for lodging a claim. Further, the Applicant says that he faced emotional distress caused by the sudden dismissal without any explanation or proper documentation from his employer.

[10] I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the 10 day delay in filing his general protections application. Ignorance of the time period is not a reasonable or acceptable explanation. The Applicant does not contend that he was not made aware of the dismissal, just that he was on holidays when it happened. He does not explain where he was on holidays or whether he had access to the internet or any other resources while he was on holidays. It is common for employees to feel emotional distress as a result of their dismissal, particularly if they are not provided with any explanation for the dismissal. However, this does not provide a reasonable or acceptable explanation for a 10 day delay in lodging a simple application in the Commission. Finally, the absence of reasons being provided for a dismissal does not prevent an employee from formulating a general protections claim and lodging it in the Commission.

[11] The absence of an acceptable or reasonable explanation for the delay in lodging the application weighs against a conclusion that there are exceptional circumstances.

[12] The Applicant did not take immediate action because he was not made aware of the reason for his dismissal and no formal termination letter or explanation was provided. However, the Applicant says that he did request clarification and written documentation from his employer but did not receive a response. I consider that the Applicant's request for clarification and written documentation constitutes some action by the Applicant to dispute his dismissal. It provides some weight in support of the Applicant's contention that there are exceptional circumstances.

[13] I cannot identify any significant prejudice that would accrue to the respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

[14] The Act requires me to take into account the merits of the application in considering whether to extend time.

[15] A number of the contentions made by the Applicant in his application are directed to the fairness of his dismissal, rather than adverse action being taken against the Applicant in connection with a workplace right. The Applicant also contends that his employer retaliated against him for exercising workplace rights, namely requesting reasons for his dismissal and clarification of his entitlements. These alleged events obviously took place after the dismissal took effect, with the result that they could not have been an operative reason for the dismissal.

Notwithstanding the lack of merit in these claims, it is also contended by the Applicant that discriminatory action was taken against him based on his nationality. This provides a proper foundation for a general protections claim. Whether such a claim would be likely to succeed would depend on a full examination of all the facts and circumstances, none of which are presently before the Commission. Accordingly, I will treat the merits of the application as neutral.

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

[16] 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.

[17] The Applicant contends that allowing his application to go ahead would be fair to others in a similar position because it would send a strong message that employees have the right to clear and documented reasons for their dismissal. The Applicant contends that many employees may face similar situations where they are not informed of the reason for their dismissal, and this would ensure that employees are not unfairly treated by employers who fail to follow proper procedures.

[18] If this application were permitted to go ahead, it would turn on its own facts and circumstances. I do not consider that the question of fairness between the Applicant and other persons in a like situation has a material bearing on whether there are exceptional circumstances to justify the granting of an extension of time.

[19] I have assessed the Applicant's request for an extension of time on the basis of the information provided in his application. The application has not been served on the respondent.

[20] Taking into consideration the matters I am required to take into account under s 366(2) of the Act and all of the matters raised in the Applicant's application, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. In my view, the circumstances of this case are not out of the ordinary course, unusual, special or uncommon.

[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). The application is therefore dismissed.

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

[3] Long v Keolis Downer [2018] FWCFB 4109 at [40]

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31]

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

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