s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - out of time application - no exceptional circumstances - application dismissed.

[1] Ms Polina Ambrose (Ms Ambrose or the Applicant) has filed an application under s.365 of the Fair Work Act 2009 (the Act) on 5 December 2025 alleging that she was dismissed by her employer in contravention of Part 3-1 of the Act. Section 366(1) of the Act states that an application made under section 365 must be made 'within 21 days after the dismissal took effect', or within such further period as allowed by the Fair Work Commission (the Commission) pursuant to s.366(2). Ms Ambrose's application states her employment concluded on 7 November 2025.

[2] In this instance, the period of 21 days concluded on 28 November 2025. The application was filed 7 days later, making the application 7 days out of time. It is, therefore, necessary that the Applicant be granted an extension of time for her application to proceed. This decision deals only with Ms Ambrose's application for an extension of time to file her application.

[3] In conjunction with her application, Ms Ambrose filed three annexures, being:

(a) A copy of an email sent by Ms Ambrose to her employer on 3 November 2025, advising of her resignation, effective 7 November 2025 'for health and wellbeing reasons';

(b) A letter of demand sent on Ms Ambrose's behalf on 5 November 2025, raising a number of employment related issues with the employer; and

(c) A letter sent in response to the letter of demand from the employer's lawyers dated 24 November 2025.

[4] Ms Ambrose noted in her application that she had previously filed an unfair dismissal application in the Commission. A review of the Commission's records show that Ms Ambrose filed an unfair dismissal application just prior to midnight on 28 November 2025. This application was made on the twenty first day after the conclusion of Ms Ambrose's employment. The unfair dismissal application was discontinued when Ms Ambrose filed a Form F50 on 5 December 2025 and noted in the email to the Commission that she had filed the unfair dismissal application 'in error' and was discontinuing the matter to file the general protections application regarding the same dismissal.

• [5] Ms Ambrose's general protections application says that she had filed the unfair dismissal application with a genuine belief that it was the correct jurisdiction and ensured that she did not miss the 21-day statutory deadline. After she filed her unfair dismissal application, Ms Ambrose says she "continued to seek advice from multiple law firms and services. As I learned more about the legal framework, it became clear that my circumstances ... are more appropriately dealt with as a general protections application involving dismissal."[1]

• [6] Ms Ambrose submitted in her Form F8 application that the delay occurred because she "initially filed the wrong type of dismissal application" and not because she was "indifferent to the time limit or chose to do nothing."[2] She further submits that as soon as she understood that a general protections application was the "proper jurisdiction"[3] she promptly took steps to discontinue her unfair dismissal application and file a Form F8, general protections application involving dismissal.

[7] The Commission may grant an extension of time only if it is satisfied that there are exceptional circumstances, taking into account the matters in section 366(2)(a) to (e) of the Act:

(a) The reason for the delay;

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

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

(d) Merits of the application; and

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

• [8] Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but do not need to be unique, unprecedented or rare. Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[4]

• [9] The reason for the delay provided by Ms Ambrose is, in essence, that she received legal advice after filing her unfair dismissal application and in learning more about the available options to seek a remedy, she determined that a different jurisdiction was more suited to her complaints. Adopting the reasoning of the Full Bench in the matter of GHD Pty Ltd T/A GHD v Black[5] (GHD) with respect to a matter involving similar circumstances in which the applicant first filed an unfair dismissal claim and later withdrew it and filed a general protections claim, I am not satisfied that this provides an acceptable reason for the 7 day delay. Ms Ambrose initially elected to file an unfair dismissal application. Changing her mind about the correct jurisdiction is not something out of the ordinary or unusual:

"[T]here is nothing unusual about ... [the applicant] choosing to challenge his dismissal by first filing an unfair dismissal application before withdrawing it and filing a general protections application instead."[6]

• [10] Similar reasoning was applied by Commissioner P Ryan in the matter of Worrall v Qantas Airways Ltd[7] wherein the Commissioner found that: "the Applicant simply reconsidered his position and decided to withdraw the [unfair dismissal] Application and lodge the [general protections] Application because he considered it a "better fit". There is nothing unusual about an applicant choosing to challenge their dismissal by first filing an unfair dismissal application before withdrawing it and filing a general protections application instead. Accordingly, I do not consider the Applicant has an acceptable or reasonable explanation for the delay."[8]

[11] I note that the decisions cited above involved significantly longer periods of delay in the withdrawal of the unfair dismissal applications and filing of the general protections applications. However, neither decision appears to predicate the finding about the reason for the delay on the length of the delay but rather the unexceptional or ordinary nature of the reason for the delay. In my view, the same consideration as to whether the reason proffered for the delay is satisfactory and weighs in favour of a finding of exceptional circumstances ought to apply to the shorter delay of 7 days that exists in this case.

[12] The Applicant asserts that she sought further legal advice after filing her unfair dismissal claim and changed her mind about the most appropriate jurisdiction to address the complaints about her employment that extend beyond the circumstances of the conclusion of her employment. Seeking further legal advice after the expiry of the 21-day statutory time limit and then changing her mind about the better fit for her claims is not a satisfactory reason for Ms Ambrose's failure to file her general protections claim within 21 days. The vast majority of applicants whose employment has come to an end and who want to seek remedies take steps to determine the correct jurisdiction for their claim within the statutory time period.

[13] I note that the correspondence sent on Ms Ambrose's behalf on 5 November 2025 said: "If we do not receive a timely and satisfactory response by 12 November 2025, Ms Ambrose will have no choice but to escalate the matter. This will include ... Exploring remedies through the Fair Work Commission or the Federal Circuit and Family Court of Australia (Division 2), such as filing a General Protections claim for adverse action". The correspondence does not reference an unfair dismissal claim and makes clear that Ms Ambrose was aware of her option to file a general protections claim well before the expiry of the statutory time limit.

[14] The reason for delay advanced by Ms Ambrose does not weigh in favour of the granting of an extension of time.

• [15] Ms Ambrose resigned from her employment on 3 November 2025 and then took steps to dispute employment related matters with her employer in correspondence of 5 November 2025. Whilst the correspondence dealt primarily with concerns about record keeping and conduct during employment, it placed the Respondent on notice that Ms Ambrose intended to pursue remedies to address employment related complaints. What is not clear from the correspondence is that Ms Ambrose was disputing what it seems she is now asserting is a forced resignation. It does not appear that Ms Ambrose took action to dispute the dismissal. As held by Deputy President Millhouse in the matter of Monaco[9]: "Section 366(2)(b) requires consideration of whether Mr Monaco took action to dispute the dismissal, not whether he took steps to raise concerns with his employer about events prior to the dismissal taking effect."

[16] There is no information that Ms Ambrose disputed what I understand to be a forced resignation other than by filing the unfair dismissal claim and then the general protections claim. This factor does not weigh in favour of granting an extension of time.

[17] There are no submissions regarding any potential prejudice to the employer. The Applicant placed the employer on notice about her employment related concerns soon after notifying of her resignation and the employer provided a response via their lawyers. Ms Ambrose also filed her unfair dismissal application within the statutory time frame. The employer was on notice that the Applicant intended to dispute matters related to her employment and potentially lodge a general protections claim. There is unlikely to be prejudice to the employer in these circumstances. This factor weighs marginally in favour of granting an extension of time.

[18] I am unable to reach a view about the merits of the application because there is, not inappropriately at this stage of the proceedings, insufficient material on which I can form a view as to whether Ms Ambrose has an arguable case.

[19] I note that the Applicant resigned from her employment and, if the extension of time is granted, Ms Ambrose must then persuade the Commission that her resignation was forced by the conduct or a course of conduct of the employer pursuant to section 386(1)(b) of the Act. The correspondence attached to the application sets out the Applicant's extensive complaints about her employment and a response from the employer's representative denying the allegations against the employer.

[20] As I cannot form a view about whether the Applicant has an arguable case, this consideration is neutral in my decision regarding the granting of an extension of time.

[21] Likewise is my consideration of section 366(2)(e) - fairness between the person and other persons in a like position. Each matter turns on its particular facts. I have considered this application for an extension of time on its unique facts and do not consider that there are relevant persons in a like position with whom I have to compare to assess fairness.

[22] Weighing the factors I am required to weigh in accordance with the Act, I am not satisfied that exceptional circumstances exist in this matter. Ms Ambrose's reasons for delay and lack of disputation about the dismissal weigh more heavily against a finding of exceptional circumstances than does the prejudice to the employer which weighs marginally in favour of granting the extension. In particular, the reason given by Ms Ambrose to explain the delay is not persuasive. As I have not found that exceptional circumstances exist, I cannot exercise discretion to grant an extension of time.

[23] As no extension of time has been granted there is no valid application before the Commission. Ms Ambrose's application is dismissed.

[4] See Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[5] [2023] FWCFB 38.

[7] [2025] FWC 3843.

[9] Application by Monaco [2025] FWC 3811.

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