s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

[1] On 17 December 2025, Ms Olivia Raschella (the applicant) applied to the Fair Work Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (Cth). Ms Raschella says that she was dismissed by Adelaide University (the employer/respondent) on 14 November 2025.

[2] The Act requires that applications under s 365 are made within 21 days after a dismissal takes effect or within such further time as the Commission allows if satisfied that there are exceptional circumstances. Ms Raschella's application was made 33 days after the dismissal took effect and 12 days out of time.

[3] The Commission may only allow further time for the application to be made if satisfied that there are exceptional circumstances having regard to the factors in section 366(2) of the Act. I provided Ms Raschella with the opportunity to make submissions and supply evidence to address the factors, and gave the respondent an opportunity to reply. Having regard to the submissions filed, I am not satisfied that there are exceptional circumstances and I dismiss Ms Raschella's application.

[4] I consider that most of the factors in s 366(2) are neutral - that is, they neither weigh in favour nor against a finding of exceptional circumstances. Ms Raschella did take action to dispute her dismissal: She says that in the days following her dismissal, she sent emails to her manager and the University's human resources representative. Ms Raschella has not provided a copy of those emails, but the University does not dispute that she sent them. She also filed an unfair dismissal application on the 21st day following her dismissal. It is not clear whether this application was served on the University. Despite that, the University was aware that Ms Raschella challenged her dismissal. The period of the delay is not long, and despite the University's submissions, I do not consider that any prejudice arises other than the usual prejudice of having to respond to an application, including one made within time. It is not such a long delay that relevant documents or witnesses would not be available to the University. In relation to the merits of Ms Raschella's application, many of her submissions relate to the unfairness of her dismissal and her dissatisfaction with the lack of support that she received during her short period of employment. Despite this, she does allege that she made complaints and that the employer discriminated against her on the grounds of her mental health difficulties, although she does not clearly allege that her dismissal was because of those complaints (rather that treatment at work was due to those complaints and discrimination). Even so, her application is not entirely without merits. Last, in relation to fairness as between the applicant and other persons in a similar position, I am not aware of any relevant matters with sufficiently similar facts.

[5] Ms Raschella became aware of her dismissal when it took effect, and so this factor weighs against a finding of exceptional circumstances. Ms Raschella was verbally informed of her dismissal on the day that it occurred.

[6] I do not consider that Ms Raschella has provided an acceptable reason for the delay and so this factor weighs heavily against a finding of exceptional circumstances. Ms Raschella's reason for the delay is that she initially filed the wrong application (an unfair dismissal application). This application was filed on 5 December 2025, and so would have been within time. However, Ms Raschella says she was informed by the Commission that she was not eligible to make an unfair dismissal application as she had not completed the minimum employment period. She says that the Commission informed her on 10 December 2025. She then withdrew the unfair dismissal application and made this general protections application on 17 December 2025. Ms Raschella also said that she experienced significant stress and mental health difficulties during her employment. It is not clear if those mental health difficulties continued after her employment ended, nor how those difficulties may have affected her capacity to make an application within time. She has not provided any medical evidence in support. Rather, she has demonstrated that she could make an application within time; it was unfortunately the wrong type of application. Ms Raschella also made submissions about her dissatisfaction generally about treatment during her period of employment and the difficulties she says she experienced because of that treatment. Those are not matters that explain the delay in making her application. Further, she waited 7 days after the conversation with the Commission to make this application. She does not give reasons as to why that further delay, other than her mental health difficulties and confusion about which application to proceed with.

[7] I am not persuaded that the above reasons, separately or taken together, are acceptable reasons for the delay that could give rise to exceptional circumstances, which means out of the ordinary, unusual, special, or uncommon (see Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]). There is nothing out of the ordinary, unusual, special or uncommon in any of the matters raised by Ms Raschella.

[8] As I am not satisfied that there are exceptional circumstances, I cannot allow further time for Ms Raschella's application to be filed.

[9] I order that Ms Olivia Raschella's application for the Commission to deal with a general protections dispute involving dismissal under FWC Matter number C2025/13082 be dismissed.

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