• [3] The Applicant filed submissions on 25 August 2025 and 10 September 2025. The Respondent filed submissions on 25 September 2025, and the Applicant filed submissions in reply on 1 October 2025.

• [4] Both parties were self-represented and a hearing was held on 8 October 2025 in order to determine the objections.

• [5] The Applicant commenced working for the Respondent in November 2018[1] in the senior leadership position of Director, Global Web Production. The Applicant led teams in Sydney and an overseas city (Overseas City).

• [6] Between approximately February 2024 and March 2025, the Applicant had a personal relationship with a colleague (Former Partner) in the Overseas City who reported to one of the Applicant's direct reports. On 31 March 2025, the Applicant disclosed the relationship to the Respondent stating:

"I fully understand our code of conduct, that this must be reported, and that it

would have been wise to report it earlier. It's been a very tumultuous time and

relationship indeed. It was a long-distance relationship, and whether it would be

something ongoing was at question many times, so I wasn't sure at what point to

speak to you, disclose it and seek your guidance. I'd like to do this now.

I want to be very clear that in no shape or form it has had an impact on my

decision making. I understand the negative perception this situation could create

though, and this has been a significant concern for me.

...I was prepared to end the relationship earlier at several points in time. However, I felt pressured to stay in the relationship.

The relationship lasted for a few months. That being said, I want to be clear that

this relationship has ended. I've also been seeking external legal and psychological

counsel, while struggling to deal with this situation."

• [7] The Respondent commenced an investigation shortly thereafter and interviewed the Applicant on 9 April 2025 for this purpose.

• [8] On 6 May 2025 the Applicant was sent an email in error which included a list of "[m]ust do action items" and which stated:

Your last day in office and termination date will be May 9th 2025

To ensure a smooth exit process, please complete the below prior to your last day."

• [9] The Applicant responded shortly thereafter stating:

"Given the email below, I suppose the decision was already made then".

• [10] The Applicant was subsequently informed:

• that the Respondent had substantiated serious allegations of misconduct and that a decision had been made to terminate his employment;

• • the decision would not be formally communicated until 9 May 2025; [2]
• • if the Applicant wished to do so, he had an opportunity to resign but would need to do so prior to 9 May 2025.[3]

• [11] On 6 May 2025 the Applicant resigned via email and was paid in lieu of his notice period. In his email the Applicant stated:

"I (sic) saddens me to hereby hand in my resignation. I will follow below process to return all Adobe property by end of this week."

• [12] A person may only make an application for the Commission to deal with a dismissal dispute under s.365 of the Fair Work Act 2009 (Cth)(Act) if they have been dismissed. As such, to determine whether the Commission has the jurisdiction to hold a conference to deal with this dispute, the question of whether the Applicant has been dismissed needs to be determined as a threshold issue.

• [13] Section 386 of the Act provides:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

• [14] It is not in contention that the circumstances in s.386 (2) and (3) do not apply in this case.

• [15] The Applicant provided the following account of events after he disclosed his relationship with his Former Partner: [4]

• On Monday 5 May 2025 he was summoned to a meeting with human resources and his manager to review "the findings of the investigation" and during that meeting was told to "consider the situation" ahead of a meeting the following Friday.
• On Tuesday 6 May 2025 he received an internal email stating "sorry to hear you are leaving us on Friday".
• The Applicant contacted human resources immediately following receipt of the email who apologised for the email having been sent and recommended that the Applicant resign before the meeting on Friday to avoid formal termination.
• The Applicant submitted his resignation under pressure later that day as he understood that his termination was otherwise imminent.

• he did resign voluntarily but that this constituted a "constructive dismissal" which is captured by s.386(1)(b) of the Act;
• he was pressured to resign swiftly and quietly at a time when he was emotionally vulnerable, was the victim of month-long blackmail by the Former Partner and had been undergoing psychological treatment for many weeks prior;
• he did not deny making mistakes and took full accountability when disclosing his relationship with the Former Partner;
• he believed the Respondent had a duty of care towards him but instead it acted to protect itself by constructing an expedited exit with minimal visibility and showed no regard for the blackmail he was experiencing or his psychological situation;
• his resignation was a "face saving mechanism" and was not freely given as it followed a pre-determined outcome that was communicated prematurely;

• • the circumstances amount to dismissal under s.386(1) of the Act.[5]

• [17] The Respondent submitted it was decided that it was appropriate for the Applicant's employment to be terminated on notice due to misconduct because it had formed a view that:

• the Applicant had persistently and knowingly acted in serious breach of the Respondent's policies;
• the Applicant had likely only disclosed the relationship when his hand was forced;
• the Applicant's conduct had exposed the Respondent to significant potential legal/financial liability in the country of the Overseas City where the Former Partner was based;
• the Applicant had taken advantage of the Respondent's willingness to let him undertake personal travel to, at work from, another location without utilising any leave entitlement as the Applicant was not transparent as to the reasons for such travel;

• • termination of employment was the usual disciplinary sanction in similar circumstances.[6]

• • on 6 May 3035 after receiving an email sent earlier in error, the Applicant was subsequently informed that Mr Kennedy had determined that the Applicant's employment would be terminated due to misconduct and that this would be formally communicated to him on 9 May 2025;[7]
• • as the Respondent did not wish to have any further impact on the Applicant's ability to secure another opportunity, the Applicant was given an opportunity to resign, which he chose to do on 6 May 2025.[8]

• [19] The Respondent submitted that the Applicant was not placed under any pressure to resign.[9]

• [20] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[10] the Full Bench observed that the usual position is that where an employee uses unambiguous words of resignation, the employer is entitled to treat this as an effective resignation which operates to terminate the employment.[11]

• [21] The Full Bench went on to consider case law and authorities dealing with circumstances in which an ostensible resignation may not operate as an effective resignation capable of acceptance by the employer and found:

'[47] Having regard to the above authorities and the bifurcation in the definition of "dismissal" established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

• (2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.[12]

[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.'

• [22] By 6 May 2025 the Respondent had decided that it would dismiss the Applicant and took certain internal measures in acting upon that decision. This included sending an email to the Applicant on 6 May 2025 indicating that the Applicant's employment was ending and seeking that the Applicant take certain actions in anticipation of his exit from the business. While the Respondent invited the Applicant to resign, this does not change the fact that the decision had been made and communicated on 6 May 2025. The only real choice available to the Applicant from 6 May 2025 was whether to accept the invitation to have the termination reflected as a resignation. However, when the Applicant provided his resignation via email, the termination of his employment had already, in effect, been communicated. While the email may have been sent in error with the effect that the decision to terminate the Applicant's employment was communicated to the Applicant earlier then was intended, the employment would not continue past the end of the week, and it was not the Applicant's choice to end the employment relationship.

• [23] In these circumstances, I find that the actions of the Respondent brought the employment relationship to an end, and the Applicant was dismissed at initiative of the Respondent.

• [24] In his Form F8 application the Applicant stated that he had filed a complaint with the Australian Human Rights Commission (AHRC Complaint).[13] During the hearing the Applicant confirmed he made the AHRC Complaint on 9 July 2025 and that, as at the time of the hearing, it had not been discontinued.

• the AHRC Complaint relates to psychological harm, discrimination and failure to act on reported blackmail and coercion in the workplace;
• the general protections application the subject of these proceedings is a separate and distinct claim relating to constructive dismissal and adverse action under the Act;
• there is no duplication of remedy or attempt to litigate the same matter twice;

• • he is pursuing the general protections application solely for the unlawful termination of his employment, and not for the discrimination elements covered in the AHRC Complaint.[14]

• • the Applicant appears to have made the AHRC Complaint prior to the filing of the application the subject of these proceedings;[15]
• • pursuant to s.725 of the Act, a person who has been dismissed must not make an application referred to in ss. 726 to 732 of the Act in relation to the dismissal if any of those sections apply;[16]
• • the Applicant has filed a general protections application involving dismissal (s. 727 of the Act) and appears to have also filed the AHRC complaint under the Australian Human Rights Commission Act 1986 (Cth)(s.732 of the Act);[17]
• • as the Applicant has made more than one action in relation to his dismissal and pursuant to s. 725 of the Act the Applicant is unable to make the application the subject of these proceedings while the AHRC Complaint remains on foot.[18]

• [27] Part 6-1 of the Act deals with multiple actions and subdivision B of Part 6-1 deals specifically with applications and complaints relating to dismissal.

'A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any of those sections applies'.

(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and

(i) been withdrawn by the person who made the application; or

(2) An application or complaint under another law is an application or complaint made under:

(a) a law of the Commonwealth (other than this Act); or

(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended'.

• [30] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) states, in relation to subdivision B of Part 6-1:

"2707. This Subdivision is intended to prevent a person 'double-dipping' when they have multiple potential remedies relating to dismissal from employment buy seeking to limit a person to a single remedy.

2708. Clauses 726 to 732 set out all the potential remedies that may apply. Clause 725 is the key operative provision. It provides that if a person has made an application that falls within any of clauses 726 to 732 then they may not bring and application that falls within any of the other clauses'.

• [31] The Applicant has provided a copy of the AHRC Complaint which plainly raises issues related to his dismissal. By way of summary, the Applicant alleges in the AHRC Complaint that:

• he voluntarily disclosed the relationship to human resources and his manager, acknowledging the delayed timing, offering full context, and providing evidence of psychological distress and coercion;
• he became the subject of an internal investigation;
• the context he provided was not considered in the final outcome and the evidence he offered was rejected;
• he was told on 5 May 2025 to "take some time to think about the situation";
• on 6 May he received an email stating he was "leaving on Friday", confirming the decision to dismiss him had been made and this amounted to coercion to resign quietly or be terminated;
• he ultimately chose to resign on 6 May 2025 after this was recommended by human resources to "avoid the negative stain of a formal termination" on the Applicant's records;
• he was dismissed solely for failing to disclose the relationship promptly;
• he believed he was "treated unfavourably and ultimately terminated" because he:
• disclosed a relationship involving emotional coercion and threats;
• he was under psychological distress and sought support, which was ignored
• his explanation for the delay in disclosure was dismissed;
• his treatment amounts to victimisation under the Sex Discrimination Act 1984, potential disability discrimination and procedural unfairness and a failure of duty of care.

• [32] In his AHRC complaint the Applicant indicated he was seeking:

• "Formal acknowledgement of the psychological and professional harm".
• "A formal apology".
• "Financial compensation for emotional distress and career impact".
• "Review of internal HR processes regarding emotional coercion and mental health."

• [33] The Applicant's AHRC Complaint clearly falls under s.732(2) in that it is a complaint under another law of the Commonwealth, being the Australian Human Rights Commission Act 1986 (Cth) which relates to dismissal. Shortly after making the AHRC complaint, the Applicant made the application the subject of these proceedings. As explained by the Explanatory Memorandum to the Fair Work Bill 2008 (Cth), s.725 provides that if a person has made an application that falls within any of ss. 726 to 732, they may not bring an application that falls within any of the other clauses. By making the AHRC complaint the Applicant was then prevented from making the general protections application the subject of this decision while the AHRC Complaint remained on foot. During the hearing the Applicant confirmed he had not withdrawn the AHRC Complaint. The Applicant then indicated that he would be prepared to discontinue that application if he needed to do so to fall within the Commission's jurisdiction, however as at the time of the hearing the Applicant had not taken such a step.

• [34] By reason of s.725 of the of Act the Applicant was unable to make his application under s.365 of the Act. I therefore dismiss the application on this basis.

• [35] Section 366 of the act provides that an application under s.365 must be made:

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

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

• [36] It is not in contention that the Applicant's employment came to an end on 9 May 2025. The Applicant needed to have made his application by no later than 30 May 2025 in order to have made his application within 21 days after the dismissal took effect. The Applicant filed his application on 13 July 2025, being 65 days after the dismissal took effect and 44 days after 30 May 2025.

• [37] 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 as between the person and other persons in a like position.

• [38] The Applicant stated that he was unable to lodge the application within 21 days of his alleged dismissal because:

• • he was experiencing significant psychological distress at that time, including severe anxiety and emotional exhaustion related to prolonged blackmail and coercive behaviour by a colleague; [19]
• • he was experiencing trauma associated with an investigation undertaken by the Respondent; [20]
• • he did not fully understand the applicable deadlines or legal pathways while dealing with the psychological impact;[21]
• • he had limited understanding of the Commission process and no legal representation at the time.[22]

• [39] The Applicant had initially submitted he filed a complaint with the AHRC "shortly after" the termination of his employment and was focused on his mental health.[23] However the Applicant later submitted he did not file a complaint soon after leaving the Respondent and did not make the complaint until 9 July 2025, being two months after his employment ended.[24]

• [40] The Respondent submitted that the Applicant has not provided a credible or satisfactory explanation for the delay and, in particular:

• the Applicant has not provided any evidence that he was unable to, or prevented from, making the application within the statutory timeframe (for medical or any other reasons) or that he was prevented from making the application for the entire period of the delay;
• the Applicant admits that part of the reason for the delay was that he was focused on making another application, being his AHRC Complaint, and this is not a satisfactory explanation for the delay;

• • in circumstances where the Applicant was a senior, highly remunerated employee, and was able to file other claims after his employment ended, the Applicant's assertions that he did not understand the Commission's processes or have legal representation should not, in the Respondent's view, be given any significant weight by the Commission nor should such reasons justifiably excuse the delay which is material in the circumstances.[25]

• [41] The Applicant provided a report from his treating psychologist, and I accept that the Applicant was going through a difficult period. However, the application form is not a complex one and the report does not demonstrate that the Applicant's mental health was such that he was unable to make his application to the Commission within 21 days of his dismissal and nor does it indicate that he was unable to do so during the period of the delay. Rather, the report indicates that the Applicant presented as calm, logical and concerned. The report also indicates that the Applicant had been actively looking for employment which suggests he was able to engage in the processes associated with searching for employment, which would typically involve making applications. I do not accept that the Applicant has put forward a reasonable explanation for the delay, and this would weigh against a conclusion that there are exceptional circumstances.

Section 366(2)(b) - any action taken by the person to dispute the dismissal

• [42] There is no evidence that the Applicant took any evidence to dispute his dismissal prior to making his AHRC Complaint and this application, both of which were made more than 21 days after his dismissal. This would weigh against a conclusion that there are exceptional circumstances.

Section 366(2)(c) - prejudice to the employer (including prejudice caused by the delay)

• [43] The delay is a period of 44 days. The Respondents submitted:

• the statutory time limits for commencing an application under the Act are directed toward the timely resolution of disputes and the provision of certainty to parties;
• the Respondent was entitled to certainty in relation to the termination of the employment relationship;

• • it would be prejudiced by granting an extension of time.[26]

• [44] The Respondent did not otherwise articulate what specific prejudice it would suffer in the event that an extension of time was allowed. I am not persuaded that it would suffer any prejudice, and I consider this to be a neutral consideration.

• [45] In his Form F8 application the Applicant alleged that he was dismissed in contravention of s.340 of the Act and after he exercised workplace rights by:

• disclosing a personal relationship that involved coercive and emotionally manipulative behaviour;
• reporting associated distress to human resources;
• seeking professional psychological help;

• • cooperating fully and transparently with the investigation process;[27] and
• • seeking support.[28]

• [46] The Applicant alleged the decision to dismiss him was directly linked to his disclosure and attempt to seek assistance.[29]

• [47] The Applicant also alleged he was dismissed in contravention of s.351 of the Act as:

• he was suffering from a diagnosed psychological condition which was known to the Respondent;

• • rather than accommodating the condition, the Respondent disregarded it and proceeded to dismiss him. [30]

• [48] The Applicant submitted this constitutes discrimination on the basis of mental disability[31] or a mental health condition.[32]

• the Respondent's investigation thoroughly examined his corporate card usage, travel and decisions involving the Former Partner;
• no evidence of misconduct or favouritism was found;

• • the only grounds the Respondent relied upon for the dismissal was the Applicant's failure to "promptly" disclose the relationship, despite his explanation and evidence of the coercive and psychological circumstances that caused the delay.[33]

• • denied that the Applicant exercised a 'workplace right' within the meaning of that term within the Act;[34]
• • said the Applicant did not make any reference to his health, including his mental health or alleged "psychological distress" prior to the termination of his employment;[35]
• • denied that the Applicant offered to provide documentation to HR relating to his mental health as alleged or at all; [36]
• • submitted that the Applicant did not dispute that he engaged in the misconduct that was the subject of the findings of the investigation and did not challenge the reason for the proposed disciplinary action at the time but rather indicated he disagreed with the with the way in which the exit was handled and framed by the Respondent;[37]
• • submitted that the Applicant's health was not a factor in the Respondent's decision to investigate the Applicant's conduct or to determine what disciplinary action would be issued in light of his misconduct; [38]
• • submitted the Applicant has not provided any detail or evidence in support of his assertions that certain actions constituted an exercise of "workplace rights" under s.341 of the Act;[39]
• • denied that the termination of the Applicant's employment was terminated for a prohibited reason under s.340 of the Act,[40] was unlawful,[41] or that the Applicant was discriminated against in breach of s.351 of the Act as alleged or at all.[42]

• [51] Rather, the Respondent submitted that any decision to take disciplinary action against the Applicant was made because of the Applicant's misconduct, specifically that the Applicant had:

• persistently and knowingly acted in breach of the Respondent's policies;
• exposed the Respondent to significant potential legal/financial liability in another country;

• • taken advantage of the Respondent's willingness to let him undertake personal travel to, and work from, the Overseas City without utilising any leave entitlement and without being transparent as to the reasons for such travel.[43]

• [52] While the Applicant disclosed his relationship with the Former Partner on 31 March 2025, the Respondent submitted that on 4 April 2025 the Former Partner raised concerns to the Respondent's Ethics helpline to the effect that she had been "strongly approached" by her "superior, two levels above" to enter into a romantic relationship and that "financial transactions and promises were made" but not fulfilled.[44]

• [53] The Respondent provided the following account of events:

• it appointed two employee relations consultants to conduct an investigation into:
• the implied allegation of sexual/power harassment raised by the Former Partner;

• o whether the Applicant and/or the Former Partner had acted in breach of the Respondent's Code of Business Conduct Policy, Temporary Alternative Work Location Policy and/or Conflicts of Interest Policy;[45]

• the Applicant gave several reasons prior to and during the investigation for his persistent non-disclosure which impacted his credibility, including:
• that he was not sure how the relationship would develop or how long it would last;
• he knew the relationship would have implications at work due to the reporting lines;

• o the Former Partner had sought to manipulate, pressure and control him into maintaining the relationship and providing financial assistance;[46]
• • the Applicant provided no evidence of the Former Partner's conduct and his strong assertions about her were contradicted by other comments he made including "I don't want to impact her negatively. She is a good person and so am I. It's just a relationship that didn't work";[47]

• even if the Former Partner's conduct was as the Applicant alleged and this prolonged the relationship, it did not explain why the Applicant felt unable to disclose the relationship;

• • the Applicant admitted that the Former Partner had said "Stop ignoring me. I will go to HR if you ignore me" and the investigators determined it to be highly likely that the Applicant had only disclosed the relationship at the time he had because the Former Partner had threatened to do so herself when she realised that the relationship was deteriorating;[48]

• the investigation determined in relation to the Applicant:
• that there had been a persistent and wilful failure on the part of the Applicant to disclose a personal relationship which involved a direct supervisory relationship;
• that this was in direct contravention of the Respondent's Code of Business Conduct Policy and Conflicts of Interest Policy;
• that no decisions related to the Former Partner's employment or compensation appeared to have been made or influenced by the Applicant due to the limited business interaction and a local manager serving as an intermediary but there had been a risk of a conflict of interest, or perceived conflict of interest, for over a year; and

• o the Applicant's excessive travel violated the Temporary Alternative Work Location Policy duty is working internationally for over 15 days, notwithstanding that this was done with managerial approval but noting his manager was unaware of the personal reasons for seeking to work so often in the overseas city;[49]
• • on 1 May 2025 the Applicant was invited to a disciplinary hearing on 5 May 2025 during which the findings of the investigation were discussed and he was provided with an opportunity to respond;[50]

• it was decided that it was appropriate for the Applicant's employment to be terminated on notice due to misconduct because it had formed a view that:
• the Applicant had persistently and knowingly acted in serious breach of the Respondent's policies;
• the Applicant had likely only disclosed the relationship when his hand was forced;
• the Applicant's conduct had exposed the Respondent to significant potential legal/financial liability in the country of the Overseas City where the Former Partner was based;
• the Applicant had taken advantage of the Respondent's willingness to let him undertake personal travel to, at work from, another location without utilising any leave entitlement as the Applicant was not transparent as to the reasons for such travel;

• o termination of employment was the usual disciplinary sanction in similar circumstances;[51]
• • on 6 May 3035 after receiving an email sent early in error, the Applicant was subsequently informed that Mr Kennedy had determined that the Applicant's employment would be terminated due to misconduct and that this would be formally communicated to him on 9 May 2025;[52]
• • as the Respondent did not wish to have any further impact on the Applicant's ability to secure another opportunity, the Applicant was given an opportunity to resign, which he chose to do on 6 May 2025.[53]

• [54] Having considered the materials filed by the parties it is apparent that the Applicant was in a relationship with the Former Partner, who reported to his direct report, knew he needed to disclose this relationship but did not do so until March 2025, approximately one year after the commencement of the relationship. While the Applicant has alleged that this disciplinary process and dismissal is in some way connected to the exercise of a workplace right and/or amounts to discrimination, based on the materials before the Commission, it seems unlikely this is the case. Rather, it is likely that the Applicant was dismissed because he did not disclose a relationship which was in breach of the Respondent's policies and gave rise to risk for the Respondent. In these circumstances the merits of the Applicant's application are, prima facie, poor. This would weigh against a conclusion that there are exceptional circumstances.

Section 366(2)(e) - fairness as between the person and other persons in a like position

• [55] The 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."[54]

• [56] The Applicant did not bring to my attention any matters currently before the Commission or others previously decided by the Commission relevant to this consideration.

• [57] I consider this to be a neutral consideration.

• [58] 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.[55] 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.[56]

• [59] I have found that the application must be dismissed as the Applicant's AHRC Complaint clearly falls under s.732(2) of the Act in that it is a complaint under another law of the Commonwealth, being the Australian Human Rights Commission Act 1986 (Cth) which relates to dismissal and by reason of s.725 of the Act may not bring the application the subject of these proceedings. However, even if I had reached a different conclusion, I am not satisfied that there are exceptional circumstances after considering the matters in s.366 of the Act individually as well as in combination, noting:
  • I do not consider the Applicant has put forward a reasonable explanation for the delay, which would weigh against allowing an extension of time for making the application (s.366(2)(a));
  • there is no evidence that the Applicant took any evidence to dispute his dismissal prior to making his AHRC Complaint and this application, both of which were made more than 21 days after his dismissal, which would weigh against allowing an extension of time for making the application (s.366(2)(b));
  • I am not persuaded that the Respondent would suffer any prejudice and I consider this to be a neutral consideration (s.366(2)(c));
  • I consider the merits of the Applicant's application are, prima facie, poor and this would weigh against allowing an extension of time for making the application (s.366(2)(d));
  • the Applicant did not bring to my attention any matters currently before the Commission or others previously decided by the Commission relevant to this consideration, which I consider to be a neutral consideration (s.366(2)(e).

• [60] As noted above, by reason of s.725 of the of Act the Applicant was unable to make his application under s.365 of the Act and I therefore dismiss the application on this basis.

• [61] Had I not dismissed the application on the basis of s.725 of the Act, having weighed the considerations under s.366(2) of the Act I would have found that there were no exceptional circumstances that would warrant allowing an extension of time for making the application and would have dismissed the application on this basis.

[1] Applicant's Form F8 Application, response to q. 1.1.

[2] Respondent's Form F8A Response, response to q. 1.2 at [1].

[3] Respondent's Form F8A Response, response to q. 1.2 at [2].

[4] Applicant's Submissions, part 2.

[5] Applicant's Submissions, part 2.

[6] Respondent's Form F8A Response, response to q. 3.1 at [22].

[7] Respondent's Form F8A Response, response to q. 3.1 at [23].

[8] Respondent's Form F8A Response, response to q. 3.1 at [24] - [25].

[9] Respondent's Form F8A Response, response to q. 1.2 at [4], Response to q. 3.1 at [26].

[10] [2017] FWCFB 3941.

[11] [2017] FWCFB 3941 at [35].

[12] [2017] FWCFB 3941 at [35].

[13] Applicant's Form F8 Application, response to q. 1.4; Applicant's Submissions, Part 3.

[14] Applicant's Submissions, part 1; Applicant's Reply Submissions, part 1.

[15] Respondent's Form F8A Response, response to q. 1.2 at [10].

[16] Respondent's Form F8A Response, response to q. 1.2 at [11].

[17] Respondent's Form F8A Response, response to q. 1.2 at [12].

[18] Respondent's Form F8A Response, response to q. 1.2 at [13].

[19] Applicant's Form F8 Application, Respondent to q. 1.4; Applicant's Submissions, part 3.

[20] Applicant's Form F8 Application, Respondent to q. 1.4; Applicant's Submissions, part 3.

[21] Applicant's Form F8 Application, Respondent to q. 1.4.

[22] Applicant's Submissions, part 3.

[23] Applicant's Submissions, part 3.

[25] Respondent's Submissions at [18].

[26] Respondent's Submissions at [23].

[27] Applicant's Form F8 Application, Respondent to q. 3.4.

[28] Applicant's Form F8 Application, Annexure '3.1 Alleged Contravention' at [10].

[29] Applicant's Form F8 Application, Respondent to q. 3.4.

[30] Applicant's Form F8 Application, Respondent to q. 3.4.

[31] Applicant's Form F8 Application, Respondent to q. 3.4.

[32] Applicant's Form F8 Application, Annexure '3.1 Alleged Contravention' at [10].

[33] Applicant's Form F8 Application, Annexure '3.1 Alleged Contravention' at [7].

[34] Respondent's Form F8A Response, response to q. 3.1 at [28], [30].

[35] Respondent's Form F8A Response, response to q. 3.1 at [29].

[36] Respondent's Form F8A Response, response to q. 3.1 at [29].

[37] Respondent's Submissions at [26].

[38] Respondent's Form F8A Response, response to q. 3.1 at [29].

[39] Respondent's Submissions at [26].

[40] Respondent's Form F8A Response, response to q. 3.1 at [31]; Respondent's Submissions at [26].

[41] Respondent's Form F8A Response, response to q. 2.1

[42] Respondent's Form F8A Response, response to q. 3.1 at [31].

[43] Respondent's Form F8A Response, response to q. 3.1 at [32].

[44] Respondent's Form F8A Response, response to q. 3.1 at [11]; Respondent's Submissions at [6].

[45] Respondent's Form F8A Response, response to q. 3.1 at [13].

[46] Respondent's Form F8A Response, response to q. 3.1 at [17].

[47] Respondent's Form F8A Response, response to q. 3.1 at [17].

[48] Respondent's Form F8A Response, response to q. 3.1 at [18].

[49] Respondent's Form F8A Response, response to q. 3.1 at [15].

[50] Respondent's Form F8A Response, response to q. 3.1 at [19].

[51] Respondent's Form F8A Response, response to q. 3.1 at [22].

[52] Respondent's Form F8A Response, response to q. 3.1 at [23].

[53] Respondent's Form F8A Response, response to q. 3.1 at [24] - [25].

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

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

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