s.365 - General protections

Application made under s.365 - application filed 1 day out of time - extension granted.

• [1] On 4 June 2025, Nikki Rankin made an application under s.365 of the Fair Work Act 2009 (Act) that alleges she was dismissed by Bathe Pty Ltd (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).

• [2] There is a dispute about when the dismissal of Ms Rankin took effect. The Respondent submits that it took effect on 13 May 2025, having notified Ms Rankin in writing that day. Based on this, the Respondent asserts that the 21-day period ended at midnight on Tuesday 3 June 2025 and, with the application having been lodged on 4 June 2025, it was one day late. If the Respondent is correct, Ms Rankin will require an extension of time for the application to proceed. Ms Rankin submits that the Commission must determine whether her application was in fact lodged late. Ms Rankin argues that the Respondent's 13 May 2025 letter did not specify the date the dismissal took effect. She asserts that the only notification of her termination date was in her final payslip that she received by email on 16 May 2025. This payslip recorded that the employment ended on 16 May 2025. Ms Rankin submits that as she made her application on 4 June 2025, it was made within 21 days after her dismissal took effect and as such, no extension of time is required.

• [3] I consider that the following text in the Respondent's 13 May 2025 letter notified Ms Rankin that she was dismissed from her employment with immediate effect:

"Taking the above into account, Bathe has now made a decision to terminate your employment. As a result of this decision, you will be entitled to:

• Provision of 2 weeks' notice in accordance with your employment contract. In good faith, Bathe will pay notice in lieu;
• Any unused annual leave and ordinary pay.

If you require an employment separation certificate or statement of service, please let us know and we will organise this promptly."

• [4] Accordingly, the application made on 4 June 2025 was received by the Commission one day outside of the 21-day period required by s.366(1)(a). 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).

• [5] As to the reason for the delay (s 366(2)(a)), while Ms Rankin cited her lack of legal representation, I reject her suggestion that the delay in lodgement was caused by her inability to retain a lawyer. Lawyers are not needed in order to complete the relatively short General protections dismissal Form F8 (Form F8).

• [6] Ms Rankin also referred to having been hospitalised at material times, producing:

1. a discharge summary that indicated a period of hospitalisation at the Royal Melbourne Hospital from 8 May 2025 to 17 May 2025;
2. an 'After Visit Summary' from Peter MacCallum Cancer Centre indicating discharge on 22 May 2025;
3. an 'After Visit Summary' from the Royal Melbourne Hospital suggesting there had been a consultation on 23 May 2025;
4. a record of a clinic/practice visit at Peter MacCallum on 27 May 2025;
5. an 'After Visit Summary' from Peter MacCallum Cancer Centre indicating an admission and discharge on 28 May 2025;
6. an 'After Visit Summary' from Peter MacCallum Cancer Centre indicating discharge on 29 May 2025;
7. an Oncology visit note from 4 June 2025; and
8. an 'After Visit Summary' from Peter MacCallum Cancer Centre dated 4 June 2025.

• [7] Ms Rankin also gave evidence that it was only after receiving the Respondent's 29 May 2025 letter[1] that she decided she would make application to the Commission but it took a number of sittings to complete the Form F8 due to ongoing medical treatment she was receiving. As to these matters, Ms Rankin did not have to wait until it became apparent that her correspondence with the Respondent would not resolve her issues before proceeding to lodge her application. Further, while Ms Rankin said that she was back in hospital undertaking chemotherapy between 29 May 2025 and 4 June 2025, the records she has produced do not indicate any attendances after she was discharged on 29 May 2025 until her oncology visit on 4 June 2025. Notwithstanding this, I am prepared to accept Ms Rankin's evidence that, in general, her capacity was impaired during the periods between the treatment she was receiving.

• [8] Ms Rankin was aware, in advance of her dismissal, that she had 21 days after her dismissal had taken effect to make her application and I accept her evidence that she believed that she "had to have it [the application] in end by the end of the week" (i.e. by Friday 6 June 2025). I am satisfied that this belief emanated from the communications she had received from the Respondent. Notwithstanding my finding at [3] above, I consider the advice regarding the termination of Ms Rankin's employment in the Respondent's 13 May 2025 letter lacked precision in that it did not state that the employment was terminated "as of 13 May 2025" or "with immediate effect". I consider the Respondent then confused matters by producing a payslip stating that the employment ended on 16 May 2025. While the Respondent relied on Ms Rankin having outlined that her dismissal took effect on 13 May 2025 in the Form F8, I am not persuaded that this should weigh against her. This is because when completing and lodging the Form F8 on 4 June 2025, Ms Rankin clearly considered that her application was being lodged within the 21-day timeframe.[2] Further, when it was suggested by the Commission in correspondence dated 13 June 2025 that Ms Rankin's application was "lodged late", Ms Rankin responded almost immediately in writing, in the following terms:

"In regards to the below email advising my application was lodged late.

My understanding is that my employment ended on the 16th of May 2025, which is within the 21 day timeframe to submit my application.

I've attached a screenshot of the top of my final payslip issued by Bathe Pty Ltd stating the date employment ended: 16/05/2025."

• [9] I therefore accept Ms Rankin's explanation that her confusion in relation the date upon which her dismissal had taken effect was due to the Respondent's failure to outline in the 13 May 2025 letter when her employment was to end with sufficient precision and the Respondent's subsequent production of the 16 May 2025 payslip, which stated that the employment ended on 16 May 2025. I consider that the responsibility for this confusion lies at the feet of the Respondent and that Ms Rankin therefore has a credible explanation for the 1-day delay. The s.366(2(a) consideration weighs in favour of a finding conclusion that there are exceptional circumstances in this case.

• [10] As to the other mandatory considerations, I accept that Ms Rankin took action to dispute the dismissal by sending the Respondent letters dated 16 May 2025 and 19 May 2025 in relation to her dismissal and the matters lying behind it (s.366(2)(b)). This weighs marginally in favour of an extension.

• [11] I do not consider there to be any prejudice to the Respondent 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 Ms Rankin and other persons in a like position(s.366(2)(e)). While the Respondent sought to rely on other cases decided by the Commission involving very short delays, cases of this kind will generally turn on their own facts. I consider the s.366(2)(c) and s.366(2)(e) considerations to be neutral factors.

• [12] As to the merits (s.366(2)(d)), Ms Rankin submitted that her dismissal was in contravention of general protections provisions having regard to her cancer diagnosis and temporary absence from work. Ms Rankin also relies on the proposition that her employment was terminated because she had been seeking to enforce her rights under anti-discrimination and workplace health and safety laws. In its correspondence to Ms Rankin, the Respondent had outlined concerns in relation to her performance and asserted that she was not fulfilling the requirements of her position. The merits of the case would depend on factual findings made by a court after hearing the evidence. I am not able to make any firm assessment of the merits at this time. Because I do not consider the merits to tell for or against an extension of time, I regard them as a neutral consideration.

• [13] 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 have found paragraph (a) weighs in favour, as does paragraph (b), albeit only marginally. Paragraphs (c) - (e) are neutral. On balance, I am satisfied that there are exceptional circumstances in this case. The Respondent's communications gave rise to confusion and this led to Ms Rankin's erroneous conclusion regarding the period of time available for the making of her general protections application involving dismissal. I am therefore satisfied that the Commission should exercise the discretionary power in s.366(2) and extend the time for the making of Ms Rankin's application to 4 June 2025.

• [14] There being no other identified jurisdictional objections to the application, the matter will, pursuant to s.368 of the Act, be listed for conference. A notice of listing for the conference will be issued shortly.

[1] In this letter the Respondent advised Ms Rankin that while it had engaged with the matters she had raised in her letters dated 16 May 2025 and 19 May 2025 in good faith, its decision to terminate her employment would stand.

[2] See 1.5 of the Form F8 dated 4 June 2025.

Printed by authority of the Commonwealth Government Printer