s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] Olivia Grace Chapman (Applicant) made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) alleging she was dismissed in contravention of the general protections provisions in Part 3-1 of the Act. K.Baird & O.G Chapman Pty Ltd (Respondent) is the Respondent to the application.

• [2] Section 366(1) of the FW Act provides that an application under s.365 must be made:

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

(b) within such further period as the Commission allows under s.366(2) of the Act.

• [3] Section 366(2) of the Act provides that the Commission may allow a further period if it is satisfied that there are exceptional circumstances taking into account:

(a) the reason for the delay; and

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

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

(d) the merits of the application; and

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

• [4] The Respondent has raised an objection to the application on the basis that it was made outside of the 21-day period referred to in s.366(1)(a) of the FW Act.

• [5] A hearing was held on 8 April 2024. Both parties sought to be represented by a lawyer and did not object to the other party being represented. The parties submitted that representation should be granted as the lawyers have been representing the parties since January 2025 and would assist the Commission in dealing with the matter more efficiently given their understanding about the application's context. Pursuant to s.596(2)(a) of the Act I granted permission to both parties on the basis that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, particularly in circumstances where the Applicant had alerted my Chambers to a change in position of the Applicant since the time that materials were filed, giving rise to some complexity as to how that change in position should be dealt with on the day of the hearing.

• [6] The Applicant was dismissed on 29 January 2025. The application was lodged on 20 February 2025. For the application to have been made within 21 days it needed to have been made by midnight 19 February 2025.

• [7] The Applicant had initially contended that her application was made within time and if it was not, she relied on incorrect information on the Fair Work Commission website. The Applicant's materials filed with the Commission prior to the hearing addressed this. However, at the hearing on 8 April 2025 the Applicant changed her position, conceding that the application was made out of time and that there were no exceptional circumstances taking into account the matters in s.366(2) of the Act. Both the Applicant and Respondent sought that the matter be dismissed on the basis of consent.

• • I have considered the extract from the Commission's webpage that the Applicant had initially said she relied upon and have not detected inaccuracy in that information. The Applicant's representative indicated at the hearing that there may have been representative error involved but no evidence was advanced in support of this submission and the submission would also be inconsistent with the Applicant's previous submissions about her reliance on the Commission's website. The miscalculation of the required timeframe to lodge an application is not, without more, an exceptional circumstance.[1]

• The Applicant did not submit that she had taken any action to dispute the dismissal prior to making her application.
• I am unable to identify any prejudice to the employer as a result of the delay.

• • The Applicant did not address the merits of the Application and where an applicant's submissions on the merits lack detail, they are unlikely to favour an extension of time being granted.[2]

• In respect of s.366(2)(e) neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter.

• [9] Having regard to the matters in s.366(2) and position of both parties at the hearing that the application was made out of time and that there were no exceptional circumstances taking into account the matters in s.366(2) of the Act, I am not satisfied that there are exceptional circumstances and there is no basis for the Commission to allow an extension of time. The application is dismissed.

[1] Jalil v BMD Constructions Pty Ltd [2014] FWC 9357, [7].

[2] See, eg, Day v CBI Constructions Pty Ltd [2013] FWC 5359, [19]; Fitzpatrick v Danila Dilba Health Service [2013] FWC 4565.

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