Olga Forero [2026] FWC 38 (8 January 2026)

s.365 - General protections

General protections - extension of time - whether exceptional circumstances - no exceptional circumstances - application dismissed

• [1] Ms Olga Forero has applied to the Fair Work Commission (the Commission) to deal with a general protections dismissal dispute under s.365 of the Fair Work Act 2009 (Cth) (the Act).

• [2] Section 366(1) of the Act provides that a general protections dismissal application must be made within 21 days after the dismissal took effect or such further period as the Commission allows under s 366(2).

• [3] Ms Forero was dismissed by her employer effective 2 October 2025.

• [4] The 21-day period in s 366(1)(a), expired on 23 October 2025. Ms Forero lodged her general protections application on 8 December 2025, which is 50 days outside the 21-day period.

• [5] Therefore, it is necessary for the Commission to determine whether it allows Ms Forero a further period under s 366(2) to make her general protections application.

• [6] Section 366(2) provides that the Commission may allow a further period if the Commission is satisfied that there are exceptional circumstances taking into account the following matters:
  1. the reason for the delay;
  2. any action taken by the person to dispute the dismissal;
  3. prejudice to the employer (including prejudice caused by the delay);
  4. the merits of the application;
  5. fairness as between the person and other persons in a like position.

• [7] A decision to extend time under s 366(2) involves the exercise of a discretion. The Commission must first be satisfied that there are "exceptional circumstances" before a discretion to extend time is enlivened.

• [8] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension. In Nulty v Blue Star Group Pty Ltd[1] a Full Bench of Fair Work Australia said as follows:

'[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. 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 singular occurrence, even though it can be a one 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.

• [9] In deciding whether there are exceptional circumstances the Commission must take into account the matters specified in s.366(2)(a)-(e). Albeit no one matter may be exceptional, in combination, the circumstances may be such that they can reasonably to be regarded as exceptional. Consequently, it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances.

• [10] None of the five matters specified in s 366(2)(a)-(e) including explanation for delay, constitutes a condition precedent to the Commission being satisfied of exceptional circumstances. Furthermore, it is not a pre-condition to the grant of an extension of time for an applicant to provide a credible explanation for the entire period of the delay. However, the absence of an explanation for any part of the delay, will usually weigh against an assessment of exceptional circumstances. Conversely, a credible explanation for the entirely of the delay, will usually weigh in favour of an assessment of exceptional circumstances.

The reasons for the delay (s 366(2)(a))

• [11] In her Form F8 the applicant states that the reasons for the delay relate to her lack of knowledge regarding her right to make an application to the Commission.

• [12] The applicant also said that after her dismissal she experienced significant emotional distress, anxiety, and stress, which affected my well-being, focus, and confidence. The applicant also refers to caring for her young child and also family health circumstances placed addtional responsiblities on her. The applicant also says that matters she alleged occurred relating to the dismissal caused her further emotional distress and delayed her ability to act.

• [13] In her further submission, which was by email to my Chambers on 18 December 2025, the applicant says further that two members of her family (being her mother and mother-in-law) underwent surgery on 8 & 10 October 2025 respectively and that her husband had a health emergency on 4 November 2025. The applicant says in her submission that these family circumstances prevented her from being able to seek legal advice within the initial 21-day period. The applicant says that she was able to seek legal advice on 10 November 2025 and received that advice on 24 November 2025 she proceeded to lodge her application as soon as she could manage.

• [14] I am not satisfied that any of the reasons given by the applicant, either considered alone or together, constitute an acceptable explanation for the delay for the following reasons:

(a) Ignorance of the right to make a general protections application to the Commission is not acceptable explanation for the delay;

(b) Any inability of the applicant to obtain legal advice within the initial 21-day period caused by the health events for her mother, mother-in-law and husband does not constitute an acceptable explanation for the delay. There is no requirement or obligation on a person to seek advice before lodging a general protections application in the Commission. I also note that the applicant obtained legal advice on 24 November 2025 and there is a further delay until she filed the application on 8 December 2025;

• (c) With respect to the 'emotional distress, anxiety and stress' that the applicant says she experienced following the dismissal, conditions of this nature are not an acceptable explanation for delay.[2]

• [15] The absence of an acceptable explanation for delay weighs against the applicant.

Action taken by applicant to dispute the dismissal (s 366(2)(b))

• [16] The applicant says that she sought legal advice on 10 November 2025 and obtained by advice on 24 November 2025 and has gathered together her material. However, the applicant has not indicated that she took any steps in communication with the respondent to dispute the dismissal.

• [17] I regard this consideration as a neutral factor.

Prejudice to the employer (including prejudice caused by the delay) (s 366(2)(c))

• [18] In relation to prejudice to the employer, the applicant says there is no prejudice tot he employer.

• [19] There is not material before me indicating that the employer will be prejudiced by the delay.

• [20] I regard this consideration as a neutral factor.

The merits of the application (s 366(2)(d))

• [21] In her Form F8, the applicant says that her application has merit as she was dismissed due to a prohibited reason or reasons under s 351 of the Act.

• [22] It is not practicable for the Commission to make a substantive assessement of the merits of the application at the preliminary stage of an extension of time.

• [23] Consequently, I consider the merits of the matter as a neutral factor.

Fairness as Between the Applicant other persons in a like position (s 366(2)(e))

• [24] In relation to fairness as between the person and other persons in a like position, the applicant makes generalised references to fairness as between the applicant and other employees who have been dismissed on the particular prohibited grounds she alleges in her present application. The applicant says that permitting her application to proceed would affirm of a principle that a person should not be dismissed on such grounds.

• [25] This submission is put at a high-level of generality. I regard this consideration as a neutral factor.

• [26] Having regard to the matters in s 366(2), I am not satisfied that there are exceptional circumstances in this case, either when the various considerations are considered individually or together. I am not satisfied that the applicant has an acceptable explanation for the delay (s366(2)(a)), which weighs against an extension. The considerations in s 366(2)(b) - (e) are neutral.

• [27] As I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time. Ms Forero's application under s 365 of the Act is dismissed.

[1] [2011] FWAFB 975.

[2] See Bianca Mamo v ICELED Australia Pty Limited [2021] FWC 3903.

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