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 Ricardo Forero (Applicant) on 5 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 The Trustee for the Dobinson Family Trust (Respondent).

• [1] 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).

• [2] The Applicant commenced employment on 5 February 2025 and he was dismissed on 17 February 2025. His general protections application was made 26 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.

• [3] The application was listed for hearing on 12 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 and Ms Dobinson appeared and gave evidence for the Respondent.

• [4] 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]

• [5] 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.

• [6] 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."

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

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

• [9] 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]

• [10] 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]

• [11] The Applicant's reasons for the delay were representative error and a medical condition.

• [12] In terms of representative error, the Applicant said he consulted with Legal Aid on 21 February 2025, however, the solicitor he saw did not tell him that there was a 21 day time limit to make this application, and he was only advised of the time limit on 2 April (or 4 April, his evidence is contradictory as to this date). He then made this application on 5 April 2025.

• [13] In terms of his medical condition, he said he had a mental breakdown as a result of his dismissal. The Applicant provided some medical certificates which stated that he was unfit for work for certain periods (often only 1-2 days). Many of these certificates related to periods after this application was filed. He also provided letter from his psychologist which indicated that she had been treating the Applicant since July 2020, and that his depressive disorder and anxiety was negatively impacted because of his dismissal and may have affected his ability to make this application within time.

• [14] The Applicant's evidence discloses that:

a) He attended 3 appointments with his psychologist on 3, 6 and 31 March;

b) He sought legal advice from Legal Aid ACT on 17 February and attended an appointment with a Legal Aid solicitor on 21 February. As mentioned above, he said the lawyer failed to tell him about the 21 day time limit;

c) He contacted the Fair Work Ombudsman's office on 17 February 2025 regarding payment in lieu of notice following his dismissal;

d) He sent an email to the Respondent on 17 February advising he had spoken with the Ombudsman's office and requesting the payment of one weeks' pay in lieu of notice;

e) He also sought advice from the ANU legal service on 5 March 2025;

f) He made an application to receive legal assistance after his appointment with Legal Aid on 21 February, which was granted on 24 March 2024;

g) He then had a further appointment with Legal Aid on 4 April when he was advised to make this application;

h) He attended an appointment with a social worker from the ANU on 1 April 2025;

1. He applied to the university for an extension to undertake some of his university exams;

j) He was facing tenancy issues at the time of his dismissal and he had to serve a notice on the real estate agent regarding the condition of his rental property; and

k) An email he provided from an ANU Case Manager stated that he had been "proactive in looking for work".

• [15] The Respondent contended that the Applicant had not provided a reasonable explanation for the delay given:

a) He is a law student who was capable of ascertaining his legal rights;

b) He consulted Legal Aid on 21 February 2025;

c) He spoke with the Fair Work Ombudsman's office on the day of his dismissal;

d) In relation to his medical condition, he was able to undertake several tasks following his dismissal including meeting with Legal Aid, talking with the Ombudsman, etc.

• [16] As noted earlier, a credible and reasonable explanation for the entirety of the delay will usually weigh in an applicant's favour. In this case I am not satisfied that there is an acceptable explanation for the delay.

• [17] First, I do not accept that this was a case of representative error. The Applicant had spoken to the Ombudsman's office on the day of his dismissal. He confirmed during the hearing that he looked at the website of the Ombudsman on 17 February and was aware that there were legal avenues to challenge his dismissal. As a law student, he was capable of ascertaining timeframes for filing without needing to wait for legal advice. That he did not do so is his own fault and not that of the Legal Aid lawyer. Most applicants, without the benefit of legal advice or representation, and who are not law students, are capable of filing applications within time. Further, there is nothing unusual about ignorance of the statutory timeframe.

• [18] Further, and despite the Applicant's suggestion to the contrary, I am not satisfied on the evidence that the Applicant gave instructions to the Legal Aid lawyer prior to 4 April to make this application on his behalf. His evidence in this respect was contradictory in that on the one hand he said he gave this instruction on 25 February, and on the other hand he said he only received advice to make this application on 4 April 2025.

• [19] In terms of the Applicant's medical condition, the evidence of the Applicant set out above makes it clear that he was not incapacitated to such an extent that he was unable to make this application within the required timeframe. He attended to a number of other matters within this period, and the letter from his psychologist does not suggest that he was incapacitated to the extent that he could not make this application.

• [20] 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.

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

Any action taken by the person to dispute the dismissal

• [22] There is no evidence the Applicant took any steps to dispute his dismissal other than the making of this application. The Applicant's email to the Respondent on 17 February related to the payment of his notice period and did not otherwise challenge his dismissal.

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

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

• [24] Ms Dobinson gave evidence that the filing of the application, 26 days late, has caused a great deal of shock and distress for her and her business partner.

• [25] While the delay is relatively lengthy, I am not satisfied 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.

• [26] 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."

• [27] 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]

• [28] The Respondent contended the Applicant was dismissed within his probation period and the application had no merit. It strongly denied the dismissal was related to the Applicant's age or his race.

• [29] The Applicant submitted that he was dismissed because of his race and his age, and because he made complaints during his employment.

• [30] The reasons for the dismissal are contested between the parties. While I am not able to make a final determination of the merits in this matter given the factual disputes between the parties, it does not look as though the reason for dismissal was related to race or age. I therefore consider the merits to weigh slightly against a finding of exceptional circumstances.

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

• [31] 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]

• [32] The Respondent submitted it would be unfair to grant an extension given matters previously decided by the Commission in similar circumstances where an extension was not granted.

• [33] I consider this criterion weighs slightly against a finding of exceptional circumstances.

• [34] 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 S. Dobinson, part owner, 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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