s.365 - Application to deal with contraventions involving dismissal

Application alleging contravention of general protections provisions - extension of time -whether exceptional circumstances exist - application dismissed

• [1] This decision concerns the issue of whether there are 'exceptional circumstances' within the meaning of section 366(2) of the Fair Work Act 2009 (Cth) (the Fair Work Act) such that the Applicant in this matter, Ms Nicole Mackinnon (the Applicant), should be given an extension of time to file her application under the general protections provisions of the Fair Work Act against her former employer Police Citizens Youth Clubs NSW Ltd (the Respondent).

• [2] For the reasons that follow, I have decided not to grant the extension of time and to dismiss Ms Mackinnon's application.

• [3] Section 365 of the Fair Work Act provides:

365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

• [4] Subsection 366(1) of the Fair Work Act provides for the time limit for filing the application. Subsection 366(2) sets out the circumstances in which the Commission may extend time, and the matters which are to be taken into account in determining whether exceptional circumstances exist warranting an extension. Section 366 provides:

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position.

• [5] Ms Mackinnon filed her application at 1:00 am AEST (2:00 am AEDT) on 12 October 2024, under section 365 of the Fair Work Act. Her application stated she had been dismissed with effect from 20 September 2024. It was common ground between the parties that the Applicant was dismissed on that date. Therefore, the application had been due to be filed by 11 October 2024, and was filed late.

• [6] The Respondent filed its response on 10 December 2024, opposing the application and objecting on the basis that it had been filed out of time.

• [7] Directions were issued on 3 February 2025 requiring the parties to file materials in relation to the question of whether time should be extended. Those directions were subsequently vacated and further directions were issued on 18 February 2025. By the further directions of 18 February, the applicant was directed to file witness statements and submissions as to whether time should be extended. She was directed to do so by 4:00 pm on 4 March 2025.

• [8] The Applicant did not file any materials by 4 March 2025, and nor did she seek any extension or provide any explanation.

• [9] On 25 March 2025 my chambers wrote to the parties inviting the Applicant to explain why the material had not been filed. The Applicant did not respond.

• [10] On 4 April 2025 my chambers wrote to the parties confirming the materials had not been filed, confirming that no explanation had been received, and allowing Ms Mackinnon a further opportunity to file her materials. As to the latter the correspondence stated:

Ms Mackinnon, if your submissions and witness statements, if any, are not received by 4:00 pm on 11 April 2025 the Deputy President may decide the application for an extension of time on the basis that you have not filed submissions or witness statements in support of it.

• [11] The Applicant did not file any materials by 11 April and nor has she filed any materials or corresponded with my chambers since.

• [12] Accordingly, I will now determine the question of the extension of time on the papers. To do so I will consider whether I am satisfied there are exceptional circumstances taking into account the matters in subsection 366(2) of the Fair Work Act.

• [13] The only filed materials before me are the application and response. These documents contain certain representations, but of course there is no sworn evidence before me supporting those representations. As a matter of fairness and prudence the Commission would not act on mere representations if there was a genuine dispute about relevant facts. However, the Commission can make findings of fact on the basis of uncontested assertions contained in the application and the response.[1]

• [14] In this case, though, the application and response do not assist me in relation to the matters to be considered under subsection 366(2), save for the merits of the application. The application asserts that it has been made within the 21-day period, which is incorrect. In light of that assertion the application states no reasons for the delay, steps taken to dispute the dismissal, or any other reason the Applicant says should be taken into account, despite the prompt to do so at the relevant part of the prescribed form. Nor is there anything of assistance stated elsewhere in the application.

• [15] As stated above, the Respondent, in its response, objected to the application on the basis that it was filed out of time.

• [16] In the absence of any evidence, and in the absence of any uncontested assertions, I find that the following have not been established:

• the reason, if any, for the delay;
• that Ms Mackinnon took any action to dispute the dismissal; and
• any prejudice to the employer (including prejudice caused by the delay); and
• any issue of fairness as between Ms Mackinnon and other persons in a like position.

• [17] As to the merits of the application, I observe that the application and the response set out the parties' competing contentions. In light of the filed documents, the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted, and if the matter proceeded beyond conciliation to court proceedings or a consent arbitration. In the absence of such a hearing, it is not possible to assess the merits of the application.

• [18] In light of the foregoing I am not satisfied that there are exceptional circumstances for the purposes of subsection 366(2) of the Fair Work Act.

• [19] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant's application for the Commission to deal with a general protections dispute involving dismissal is therefore dismissed.

[1] Abraham Abdalla v Viewdaze Pty Ltd PR922818 [2002] AIRC 1150; Application by Shop, Distributive and Allied Employees Association and United Workers' Union re Metcash Trading Limited [2024] FWC 3275, [4], citing R v Commonwealth Conciliation and Arbitration Commission; ex parte Melbourne and Metropolitan Tramways Board [1965] FCA 50, 113 CLR 228, 243 (Barwick CJ) and Rescrete Industries Pty Ltd v AIRC [1998] FCA 930, 86 IR 269.

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