s.365 - General protections

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

• [1] On 12 December 2025, Ms Rebecca Goulinas applied under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal. Section 366(1) requires an application under s 365 to be made within 21 days after the dismissal took effect. The material filed by Ms Goulinas states her dismissal took effect on 27 June 2025 (although her application states she was not clear of the exact date, which I discuss below) and her application was not lodged within 21 days.

• [2] The Commission must therefore determine in the first instance whether further time for making the application should be granted. The Commission may allow a further period for the application to be made by a person under section 366 if satisfied that there are "exceptional circumstances", taking into account: the reason(s) for the delay; any action taken by the person to dispute the dismissal; prejudice to the employer (including prejudice caused by the delay); the merits of the application; and fairness as between the person and other persons in a similar position.

• [3] Ms Goulinas commenced her application by filing a 'Form F8' application form, which she did online. Among other matters, that form stated that the Commission may decide whether to give an extension of time without conducting a hearing, on the basis of the information giving to the Commission in the form (and any attachments). The form also states that if the Commission does not give an extension of time, the application cannot go ahead. On 18 December 2025, correspondence from my chambers to Ms Goulinas said that, given the detail Ms Goulinas had included in her Form F8 application, I intended to decide whether to give an extension of time without requiring a formal hearing. I am satisfied on the material before me that the extension of time matter was capable of being dealt with 'on the papers' and I now do so.

• [4] As to the reasons for delay, Ms Goulinas says in her Form F8 that:
  • At the time the incident occurred, she was in the later stages of pregnancy and experiencing significant stress. She states the circumstances of the pregnancy (which she described but I do not need to specifically describe here) added additional emotional, physical and logistical pressure.
  • Her priority was maintaining her health and the health of the baby and that of her other child.
  • She did not feel able to take on a formal complaint process while heavily pregnant and was concerned about the impact of stress on the pregnancy.
  • Once the pregnancy and birth period had passed and she was in a position to manage the emotional burden of making a claim, she took steps to lodge it promptly.
  • The delay was not due to lack of interest or neglect, but due to the need to avoid unnecessary stress during a high risk and emotionally significant period of pregnancy.

• [5] Ms Goulinas also states that the point in time in which she told by her employer that her employment was going to "stop for the moment" was roughly when she 6.5 months pregnant. At that time, Ms Goulinas says she did not ask to stop working, and was willing and able to continue performing her role.

• [6] The delay is the period commencing after the 21-day lodgement period ended until the date the application was lodged on 12 December 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay. As might be apparent, the date of dismissal is not entirely clear. In her application form, Ms Goulinas states her dismissal was "roughly" 27 June 2025 with her last pay received 2 July 2025. Nonetheless, Ms Goulinas also states that "This was not a voluntary leave request; it was employer-initiated, based solely on my pregnancy." Ms Goulinas' description describes a dismissal. While she states that she "did not feel able to take on a formal complaint process while heavily pregnant", it is clear she was aware of the issue. This is not a case where she was unaware of her ability to challenge the employer's actions. The timing of that dismissal is not entirely clear, although I consider it was anywhere in the range of 27 June 2025 to a month later (when it was clear no further work was coming).

• [7] In the circumstances, Ms Goulinas' application is between about 117 and 141 days' late. I am not satisfied that the explanations provided by Ms Goulinas supply a satisfactory explanation for any part of the delay, whether in isolation or combination. While I am prepared to accept Ms Goulinas' pregnancy was, quite understandably, her priority, the explanations she has provided are not supported by any medical evidence. Certainly at the time of being told her employment would be stopping, Ms Goulinas was keen to continue work, as do many women at that stage of pregnancy.

• [8] Further, at the time Ms Goulinas made her application, she states "I am currently 10 weeks post pregnancy". Ms Goulinas' application states that after she was removed from her job, she obtained alternative employment. The details of that are not given, but I infer it was sometime in the latter part of the 10 week period before Ms Goulinas filed her application. An applicant 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 applicant has not provided any reason for any part of the delay. But in this case, even if I took the view that the date of dismissal was significantly later than what I concluded above, there is no material before me that I consider points to any overall finding of exceptional circumstances that would warrant an extension of time.

• [9] As to actions taken by Ms Goulinas to dispute the dismissal, Ms Goulinas says that when she was initially told to stop work (i.e. on 27 June 2025) she "asked directly if I was being fired and whether he wanted the uniform back. He said no, which led me to believe I had not been officially dismissed, even though I had been removed from work." Ms Goulinas said that because he (the manager) stated it was not a dismissal, I did not have a dismissal decision to dispute at that time. She said once she was in a stable position after the pregnancy, and it became clear that I had in fact been effectively stood down indefinitely, she took action by lodging this application.

• [10] I am prepared to accept that some of Ms Goulinas' actions were challenges to her dismissal that the employer was aware of and these are factors that points slightly in her favour, although they are not matters that I consider supportive of a finding of exceptional circumstances, whether on its own or with any other factor. I also note there is some tension given in relation to Ms Goulinas' explanations for (in)actions taken to dispute her dismissal (which indicate a lack of awareness) and the reasons for delay (which indicate she was aware but was prioritizing her pregnancy and health). Taking all of the matters she has provided, I reiterate my earlier conclusion that Ms Goulinas was aware of her dismissal during her pregnancy and certainly was by the time she was looking for work in the 10 weeks following her pregnancy.

• [11] As to prejudice to the employer (including prejudice caused by the delay), there was no material before me to suggest any material prejudice would be suffered by the employer if an extension of time were granted. I treat this factor neutrally between the parties.

• [12] As to the merits of the application, the heart of Ms Goulinas' complaint is directed to discrimination based on her pregnancy. It is tolerably clear on the material before me that there will most likely be disputed facts in issue in relation to a number of key matters. 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)"[1]. This is such a case. In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. In these circumstances, I will treat this factor neutrally.

• [13] As to the final statutory factor, Ms Goulinas did not draw any matter to my attention that would point to an overall finding of exceptional circumstances based upon fairness as between herself and "other persons in a similar position". No such person was identified with the employer.

• [14] The individual statutory factors, including the reasons for delay, are not in themselves required to be an exceptional circumstance. They are each one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances. Taking the above matters into account, I am not satisfied that there are exceptional circumstances of the kind required by the statute, whether the matters above are taken individually or in combination. There are no additional matters that I am aware of that would otherwise point to a conclusion of "exceptional circumstances".

• [15] As the Commission can only grant an extension of time if satisfied there are exceptional circumstances, there is no basis to allow an extension of time. Ms Goulinas' application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order[2] to this effect will be issued in conjunction with this decision.

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

[2] PR795312.

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