s.365 - General protections

Application made under s 365 - extension of time - application dismissed

• [1] Neville Newbigging has made an application under s 365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by Endeavour Group Limited (respondent) in contravention of Part 3-1 of the Act. Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2). Mr Newbigging's dismissal occurred on 25 August 2025. The 21-day period ended on ‎ 15‎ ‎September‎ ‎2025 (see s 40A of the Act, and s 36 of the Acts Interpretation Act 1901 as in force on 25 June 2009). The application was lodged on 26 September 2025 - 11 days out of time. For the application to proceed, Mr Newbigging requires an extension of time. The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in s 366(2)(a) to (e).

• [2] As to the reason for the delay (s 366(2)(a)), Mr Newbigging submitted the following reasons:

1. diagnosis of ASD and ADHD, alongside long-term chronic pain stemming from musculoskeletal injuries related to these conditions;
2. residential circumstances, specifically stating that "he has been living with his friends since being removed from his family home under police orders since May 2025" and that the "new environment has not been the most safe or stable at times";
3. restricted access to his pet dog, Navana, which "has a medical condition" and resides in the family home following the Applicant's "probation for domestic violence offences relating to [Family Domestic Violence] with family" on 20 August 2025;
4. between 25 August 2025 and 26 September 2025, while reporting under probation orders, Mr Newbigging "lost access to frequently needed psychology appointments due to exhausting [his] Mental Health Enhance Care Plan under Medicare, and was struggling to get NDIS support in place for that to be funded again." Mr Newbigging claimed that his inability to access psychological treatment was "due to other matters like that with [his] former employer, and with family regarding [his] pet's medical welfare and their behaviours toward [him] surrounding that, that kept taking priority"; and
5. "became aware of his dismissal" on 29 August 2025 and sought assistance from the Shop, Distributive and Allied Employees Association (SDA) (SDA Representative), who assisted him "up until the afternoon of 15 September 2025". Mr Newbigging further alleges:

a) he "was given advice that [he] had two days left to lodge any related claim"; > > b) the "SDA claimed some discrepancies about when [they] spoke and what was discussed"; and > > c) he had contacted the Commission on 17 September 2025 to seek "advice on which claims would be appropriate" and "was advised during this conversation that the advice [he] had alleged to be given by the SDA representatives was incorrect".

• [3] I acknowledge Mr Newbigging's evidence that he suffers from ASD and ADHD, alongside long-term chronic pain stemming from musculoskeletal injuries related to these conditions. However, there is no specific evidence to suggest that Mr Newbigging's condition resulted in any incapacity to file the application. While Mr Newbigging has provided evidence suggesting he has some general processing difficulties,[1] he did not appear to experience such difficulties with respect to other communications during this same period, including his engagement with the SDA, and his communications regarding his concerns for his dog. On the evidence before me, I am not satisfied that these conditions give rise to exceptional circumstances in the context of this matter.

• [4] The Applicant has submitted that he was unable to reside at the family home and was instead living with friends.[2] While I accept that this may have been a difficult personal circumstance, no specific evidence has been provided to demonstrate how this circumstance prevented the Applicant from filing the Application within time. On the evidence before me, I am not satisfied that this amounts to an exceptional circumstance capable of justifying an extension of time.

• [5] The Applicant has also submitted that he experienced restricted access to his pet dog and other difficulties relating to his dog.[3] While I accept that these matters may have been distressing, no specific evidence has been provided to demonstrate that they contributed to or caused the delay in lodging the Application. Accordingly, I am not satisfied that these matters constitute exceptional circumstances for the purposes of an extension of time.

• [6] Further, in relation to the Applicant's submissions concerning attendance at reporting meetings under probation orders, I do not consider these to constitute exceptional circumstances. There is no evidence before to suggest that such meetings were so frequent, or of such duration, as to have prevented the Applicant from lodging the Application within the statutory timeframe.

• [7] There is no evidence before me that persuades me that the SDA failed to advise the Applicant of the requirements to file his application within 21 days, or that it provided incorrect advice. Rather, the evidence establishes that the SDA informed the Applicant that it would not be representing or assisting him with the lodgement of the Application, and that it advised him that there are strict rules for doing so.[4]

• [8] Mr Newbigging submitted that he contacted the Commission on 17 September 2025. I place little weight on this submission, as by that time the statutory period for lodging the Application had already expired. Accordingly, I do not treat these submissions as weighing either in favour of, or against, the grant of an extension of time.

• [9] I also note that, while the Applicant contends that he was incapacitated from preparing and lodging the application due to the matters outlined above, the evidence demonstrates that he was able to send lengthy and detailed written communications to the RSPCA Queensland and the SDA during the relevant period. In light of this, it is difficult for me to conclude that the Applicant lacked the capacity to lodge the Application within statutory timeframe.

• [10] I do not consider there to be any prejudice to the employer associated with the relatively short delay in this case (s 366(2)(c)), nor do I consider that there are any matters that are relevant to fairness between Mr Newbigging and other persons in a like position (s 366(2)(e)). I consider these to be neutral factors.

• [11] As to the merits (s 366(2)(d)), I do not consider the merits of the present case to tell for or against an extension of time. I regard the merits as a neutral consideration.

• [12] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s 366(2), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is dismissed. I order accordingly.

[1] P.243 of the DCB - Applicant's Submissions.

[2] P.10 of the DCB - Form F8; P.235 of the DCB - Applicant's Submissions.

[3] P.235-236 of the DCB - Applicant's Submissions.

[4] P.288 of the DCB - Applicant's Submissions.

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