s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances

• [1] This decision concerns an application made by Mr Ou Zhang (Applicant) on 13 April 2025, pursuant to s.365 of the Fair Work Act 2009 (Cth), for the Commission to deal with a general protections dispute involving his dismissal from Canberra Ovolo HH Pty Ltd (Respondent).

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

• [3] The Applicant was dismissed on 24 January 2025. His general protections application was made 58 days outside the 21-day period prescribed by the Act and can only proceed if the Commission allows further time for the application to be made.

• [4] The application was listed for hearing on 4 June 2025 to consider whether further time should be allowed for the application to be made. The Applicant appeared and gave evidence on his own behalf (with the assistance of an interpreter) and Ms N Downs appeared for the Respondent.

• [5] The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]

• [6] Section 366 of the Act 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 exceptional circumstances, taking into account:

(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.

• [7] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:

"[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."

• [8] The onus of establishing exceptional circumstances lies with the Applicant.

• [9] I now deal with each of the provisions of s.366(2) of the Act.

• [10] The period of delay requiring explanation to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason supports a finding that there are exceptional circumstances.[3]

• [11] The Act does not specify what reason for the delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[4]

• [12] The Applicant provided the following reasons for the delay:

"My employment was terminated on 24 January 2025. On 26 January, I had to urgently return to China as my grandmother had suffered a serious cardiac emergency. I remained overseas until 20 February 2025 to support my family and assist with hospital and caregiving matters. During this period, I was under significant emotional distress and had limited access to resources, which made it extremely difficult to seek legal advice or lodge a formal application. After returning to Australia, I began reviewing my records and collecting relevant documentation. I lodged my application on 13 April 2025, as soon as I was practically and emotionally able to do so. The delay was not intentional or negligent, but rather caused by a genuine family crisis...."

• [13] As noted earlier, a credible and reasonable explanation for the entirety of the delay will usually weigh in an applicant's favour. While I am satisfied that there is a credible explanation for part of the delay (that being the period he was overseas), I am not satisfied that there is an acceptable explanation for the delay between 20 February 2025 when the Applicant returned to Australia, and 13 April 2025 when this application was filed. This is a period of over 7 weeks in which the Applicant said he was sorting out his paperwork and obtaining advice. This is not an acceptable reason for the delay.

• [14] I am therefore not satisfied that an acceptable explanation has been provided for the Applicant's failure to file this application within the statutory timeframe.

• [15] This weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

• [16] There is no evidence the Applicant took any steps to dispute his dismissal other than the making of this application.

• [17] This weighs in favour of a finding that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

• [18] There is no evidence that the Respondent would suffer any prejudice if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.

• [19] In Nulty v Blue Star Group Pty Ltd[5], the Full Bench said:

"It would appear that this factor, described in the Act as 'the merits of the application' is directed towards some elementary assessment of the potential prospects of the matter if the extension was granted and the matter proceeded to hearing and ultimately determination."

• [20] For the purpose of determining whether to grant an extension of time for the Applicant to file this application, the Commission 'should not embark on a detailed consideration of the substantive case.'[6]

• [21] The Respondent contended the Applicant was dismissed within his probation period, and his dismissal was a result of changing business requirements and his limited availability to be rostered for shifts.

• [22] The Applicant submitted that he was dismissed because he made a complaint about his roster and the allocation of shifts, and because he was being pressured to accept irregular hours of work.

• [23] The reasons for the dismissal are contested between the parties. I am not able to make a final determination of the merits in this matter as there are factual disputes between the parties. I therefore consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

• [24] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[7] considered this criterion and said 'cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.'[8]

• [25] Neither party raised any other person in a similar position and so I find this to be a neutral consideration.

• [26] The matters the Commission must take into account do not support a finding that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. On this basis, no further time is allowed for the application to proceed and the application is dismissed.

Ms N. Downs, Group Director of People and Performance, on behalf of the Respondent.

[1] [2016] FWCFB 6963.

[2] [2011] FWAFB 975.

[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[5] [2011] FWAFB 975.

[6] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

[7] [2015] FWC 8885.

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