s.365 - General protections

General protections dismissal dispute - extension of time required - no exceptional circumstances - application dismissed

• [1] Marist Youth Care Limited (Marist Youth Care) operates a not-for-profit organisation which provides care and support services to young people. Paul Kotoulas worked for Marist Youth Care as a Case Worker from 6 June 2022 until 13 August 2025. Mr Kotoulas was summarily dismissed for alleged serious misconduct on 13 August 2025. Mr Kotoulas filed a general protections application involving dismissal on 4 September 2025. The application was filed one day after the 21-day filing period ended on 3 September 2025. This decision concerns whether Mr Kotoulas should be granted an extension of time for the filing of his application.

• [2] Under section 366(2) of the Fair Work Act 2009 (FW Act), the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by Mr Kotoulas 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 as between Mr Kotoulas and other persons in a similar position.

• [3] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

• [4] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 3 September 2025. The delay is the period commencing immediately after that time until 4 September 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2]

• [5] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[3] Mr Kotoulas does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Mr Kotoulas has not provided any reason for any part of the delay.[4]

• [6] The reasons identified by Mr Kotoulas for the delay are:

• Having legal representation unexpectedly withdrawn the day prior to the application being filed.

• Financial distress meant Mr Kotoulas could not pay the filing fee for the application.

• [7] In relation to Mr Kotoulas' first reason, it is well established that representative error, in circumstances where the applicant was blameless, weighs strongly in favour of a finding of exceptional circumstances.

• [8] However, I am not satisfied that Mr Kotoulas has provided evidence that suggests the delay was caused by representative error. The evidence provided by Mr Kotoulas indicates he received a text message on 27 August 2025 from the relevant lawyer indicating that the firm could not assist Mr Kotoulas and he will need to prepare his own application. It is unclear why Mr Kotoulas then waited until 4 September 2025 to file the application.

• [9] Mr Kotoulas has provided evidence which clearly establishes he contacted several law firms in late August 2025 to try and secure representation. I will consider this evidence as actions taken by Mr Kotoulas to dispute the dismissal. However, I do not consider the various communications provide a sufficient explanation for the delay in the filing of the application. That is particularly the case for the period after 27 August 2025 where Mr Kotoulas had been advised by a lawyer to file his own application.

• [10] In relation to Mr Kotoulas' second reason, it is well-established that evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[5]

• [11] I am not satisfied that Mr Kotoulas' financial circumstances provide an explanation for the delay. Mr Kotoulas was able to file the application on 4 September 2025 without being required to pay the filing fee. It is unclear why Mr Kotoulas could not have filed the application within the 21-day period on 3 September 2025 without paying the filing fee. There is also no evidence of any change in Mr Kotoulas' financial circumstances from 3 September 2025 to 4 September 2025.

• [12] I am not satisfied that Mr Kotoulas has provided a satisfactory explanation for the delay in the filing of his application.

• [13] I find that this factor weighs against a finding of exceptional circumstances.

What action was taken to dispute the dismissal?

• [14] Mr Kotoulas clearly took several actions to dispute the dismissal within the 21-day filing period. This included contacting several law firms. Mr Kotoulas also sent an email to Marist Youth Care's CEO on 12 August 2025 but this was prior to the dismissal being communicated to Mr Kotoulas on 13 August 2025.

• [15] I find this factor weighs in favour of a finding of exceptional circumstances.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [16] Mr Kotoulas' application was filed only one day late. I do not consider the delay will result in significant prejudice to Marist Youth Care.

• [18] It is well established that "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)".[6]

• [19] Mr Kotoulas has filed an extensive amount of material in support of his application. It is clear Mr Kotoulas strongly contests the reasons identified by Marist Youth Care for his summary dismissal and Mr Kotoulas has raised arguments in response to each allegation. It is not possible at this early stage to form a view about the strength of Mr Kotoulas' case given the extent of contested evidence.

• [20] I find the merits of the application is a neutral factor.

Fairness as between Mr Kotoulas and other persons in a similar position

• [21] As a Full Bench has noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[7] In particular, the history of this provision indicates that it refers to "other employees of the employer agitating the same or similar substantive issues".[8]

• [22] The parties have not identified any examples or arguments directed at fairness between Mr Kotoulas and other persons in a similar position.

• [23] I consider this is a neutral factor.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [24] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.

• [25] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[9] Exceptional circumstances may 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 can be considered exceptional.[10] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension.[11]

• [26] Having regard to all of the matters listed at s.366(2) of the FW Act, I am not satisfied that Mr Kotoulas has cleared the "high hurdle" of exceptional circumstances. It is not clear on the evidence why Mr Kotoulas waited until 4 September 2025 to file his application and the lack of an adequate explanation for the delay is significant to the overall assessment. While Mr Kotoulas clearly contacted several different law firms to dispute his dismissal, it is reasonably common and ordinary for a dismissed person to contact various lawyers to seek legal assistance. I do not consider Mr Kotoulas' actions to dispute the dismissal constitute exceptional circumstances. The remaining factors are neutral.

• [27] I decline to grant an extension of time for the filing of the application.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[5] Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [22].

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[7] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

[8] See Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090, [19].

[9] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[10] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[11] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

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