s.365 - General protections

Application to deal with a general protections dismissal dispute - late application - whether extension of time should be allowed

• [1] Mr Richard Guy Raffenot Servera worked for Tropical Almond Developments (PTC) Ltd trading as the Hyatt Hotel Canberra (Hyatt) for just over 2 weeks in September 2024. On 24 September 2024, he left work "in protest to the conditions" and did not return. On 9 May 2025, Mr Servera applied for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (Cth) (the Act).

• [2] Mr Servera alleges that he was constructively dismissed by Hyatt on 4 November 2024 in contravention of the general protections after he exercised his workplace rights, including raising safety concerns and submitting medical certificates. Hyatt objects to the application on the basis that Mr Servera was not dismissed. In the alternative, Hyatt submits that if Mr Servera was dismissed on 4 November 2024, the application is out of time and no extension of the filing deadline should be allowed. I agree with the parties that if Mr Servera was dismissed on 4 November 2024, the application is 165 days late.

• [3] This decision is about whether additional time can and should be allowed for the application to be made. It is not necessary to decide whether Mr Servera was dismissed. It is assumed, for the purposes of the extension of time application only, that Mr Servera was dismissed on the date alleged.

• [4] My decision is that I am not satisfied that there are exceptional circumstances in this case in connection with the late filing of the application. No additional time can be allowed for the application to be made. The application will be dismissed. These are my reasons.

• [5] An application under s.365 of the Act must usually be filed within 21 days of dismissal. The Commission can extend the filing period if there are exceptional circumstances (s.366(1)(b)) after taking into account the following matters set out in s.366(2):

"(2) The FWC may allow a further period if the FWC 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."

• [6] These are considered in turn as they relate to Mr Servera's application.

• [7] Reason for delay: Mr Servera last worked on 24 September 2024. On 4 November 2024, he was rostered for work but did not attend. The reasons given for delay in filing the application are:

1. Ongoing settlement negotiations with Hyatt from 29 April 2025 to 3 May 2025.
2. Severe anxiety and distress caused by Hyatt's actions in requesting his return to work in October 2024 and asking him to provide medical evidence of his fitness to work that he could not afford on 28March 2025, and the tone of a meeting with Hyatt on 29 April 2025. Mr Servera says this distress is documented through sessions with his general practitioner from October 2024 to April 2025 and in reports from his doctor.
3. As a self-represented applicant, facing delays while seeking legal advice, and struggling to understand the Form F8 application process and filing deadlines.
4. Retrospectively realising that the dismissal was on 4 November 2024 and not knowing about the 21-day filing period until he started looking into how to pursue justice and realised there was a time limit.

• [8] To the extent that they explain part of the delay, the settlement discussions described account for only 4 of the 165 days. Further, attempts to settle the dispute by negotiation with Hyatt from 29 April 2025 to 3 May 2025 are an ordinary feature of dismissal disputes. They are not indicative of exceptional circumstances.

• [9] There is no evidence of a diagnosed mental health condition or that Mr Servera saw his doctor in connection with anxiety and distress over the period of the delay. Mr Servera submitted a 'stress diary' which he says recounts his experiences over the period from September 2024. It is not clear whether this diary was kept contemporaneously or created for the purpose of the proceeding. I accept that Mr Servera has experienced difficulties managing his emotions both during and after his period of work for Hyatt. However, the only medical evidence provided deals with a shoulder injury in January 2025 and a subsequent thumb injury. These matters are also not indicative of exceptional circumstances.

• [10] The request by Hyatt to Mr Servera to return to work in October 2024 is not relevant to the delay, because it occurred prior to the alleged date of dismissal. The request for medical evidence about a return to work on light duties in March 2025 came with an offer to meet the costs of an independent medical examination if Mr Servera was unable to obtain the requested information from his doctor. This conduct was not likely to cause severe anxiety and distress in the circumstances. I am prepared to accept that Mr Servera was distressed by the tone of the meeting on 29 April 2025, but I am not clear on how this contributed to the delay in filing the application.

• [11] The fact that Mr Servera is a self-represented applicant is not indicative of exceptional circumstances. A large proportion of applicants to the Commission are now self-represented and the Commission's website, forms and public information resources are designed with this in mind. Mr Servera describes himself as 'tech savvy'.

• [12] I do not accept that any part of the delay was caused by seeking legal advice, because Mr Servera did not seek legal advice. He spoke with friends and undertook his own research online, including on an artificial intelligence platform. I reject the submission that difficulties understanding the Form F8 application process and filing deadlines contributed to the delay. On the day that Mr Servera applied to the Commission, he attended its offices in person. He spoke with a member of the registry staff about the option of a Form F2 (unfair dismissal). He formed the view from those discussions that this option was not appropriate (presumably because he did not meet the minimum employment period). He then went home and filed this application later the same day. These matters are not indicative of exceptional circumstances.

• [13] Finally, Mr Servera submits that he only retrospectively realised that the dismissal occurred on 4 November 2024 and that he did not know about the 21-day filing period until he started looking into how to pursue justice and realised there was a time limit. It is well established that ignorance of the time limit is not an exceptional circumstance.

• [14] Arriving late to the realisation about having been dismissed on 4 November 2024 appears to be a consequence of the time taken for Mr Servera to bring his research online to a conclusion. Relevantly, Mr Servera says that on 3 February 2025, he received advice from WorkSafe that it was closing a complaint he had made about workplace safety at the Hyatt. On 14 February 2025, he was asked for medical evidence to support his return to work on light duties. At this time, he decided it was time to escalate the matter. He ran across the documents required and the deadlines set, and this started him thinking about the whole scenario. He did some research online over a long period of time and immersed himself in the research after completing study courses provided by Sureway (an employment services provider) in or about late April 2025. By around that time, Mr Servera had realised there was a 21-day filing period. These matters are not indicative of exceptional circumstances. It is a common experience for potential applicants in a legal case to undertake their own research and investigate their options, increasingly with the assistance of artificial intelligence tools. The fact that he was able to undertake study during this period indicates relevant capacity to apply to the Commission earlier than 9 May 2025.

• [15] On the evidence, Mr Servera had been looking for alternative work since September 2024, and had commenced researching his options at least by 1 November 2024, including by visiting the "fairwork" website and using artificial intelligence to get information about the best way forward. On 1 November 2024, Mr Servera advised Hyatt that the matter had "now been passed on to Worksafe ACT and fairwork, respectively", although this was not yet the case.

• [16] Mr Servera says he was trying to find peaceful solutions to the dismissal dispute "the whole time" and that he would have brought the case much sooner if he had seen the need. He describes Hyatt as having waged a 'war of attrition' on his finances and his life in the way it dealt with him after he made a safety complaint on 25 September 2024. I do not accept this as a fair characterisation of Hyatt's conduct. Hyatt received the safety complaint and undertook an investigation. It kept Mr Servera apprised of developments and once the concerns were deemed resolved, it asked him to return to work. It was Mr Servera's choice not to attend work between 25 September 2024 and 4 November 2024. Hyatt offered to meet with Mr Servera twice in November but received no response. After the WorkSafe complaint was closed, Hyatt rostered Mr Servera for work in February 2025. It was only then that Hyatt became aware of an injury that might limit Mr Servera's capacity for work. It asked him for medical evidence to assist with the return to work, but this was not provided. It was reasonable for Hyatt to decline to rely on Mr Servera's personal opinion about his capacity for work and necessary restrictions alone. A further injury was notified to Hyatt in March 2025, and Hyatt again requested medical advice from his doctor or his participation in an independent medical examination at its cost. This was a reasonable request to enable Hyatt to manage Mr Servera's return to work safely.

• [17] The subsequent show cause process only arose when Mr Servera did not cooperate with the request for medical evidence. Hyatt put the show cause process on hold at Mr Servera's request to allow for a meeting directly between Mr Servera and its General Manager, Mr Shane Jolly. After the meeting with Mr Jolly did not resolve the matter, Mr Servera wrote to Hyatt on 2 May 2025 suggesting a settlement to avoid legal action in the Commission or in the Court in connection to what he described as his "losses and constructive dismissal". Hyatt confirmed in response to offers made by Mr Servera that it would not settle.

• [18] On 6 May 2025, Mr Servera wrote to his doctor (but not to Hyatt) indicating that he was now pursuing an unfair dismissal claim. On 7 May 2025, Hyatt revived its request for Mr Servera to attend a show cause meeting. On 8 May 2025, it advised Mr Servera that he had not been dismissed and was required to attend a show cause meeting.

• [19] The history above indicates a reasonable and proportionate response by Hyatt to Mr Servera's communications over time. On balance, the reasons for delay do not weigh in favour of finding exceptional circumstances.

• [20] Action to dispute the dismissal: As noted above, Mr Servera advised Hyatt on 1 November 2024 that the matter was in the hands of "fairwork". This was not correct. On 28 March 2025, Mr Servera wrote to Hyatt to advise that he was seeking legal counsel. Again, this was not correct. Mr Servera did not seek legal advice. He did his own research and wrote to Hyatt on 23 April 2025 about the possibility of negotiating a settlement to avoid legal action including in the Commission in connection with alleged "mishandling of my employment situation by Ms. Carmen Hockey, the unfair treatment I've experienced, and the resulting psychological harm and financial losses". The first time Mr Servera put Hyatt on notice that there was a dispute about alleged dismissal was his email correspondence of 2 May 2025, when he referred to his "losses and constructive dismissal". He took no further steps to dispute the dismissal until 9 May 2025. On these facts, there is knowledge of the option of a "fair work" claim on 1 November 2024, and then no action to put Hyatt on notice of a dispute about alleged dismissal until 2 May 2025. There is then a further 7‑day delay after Mr Servera concluded that he had been dismissed until the application was filed. These matters do not support a finding of exceptional circumstances.

• [21] Prejudice to the employer: Hyatt does not assert any relevant prejudice in relation to the delay. Given the length of delay, the potential for at least some prejudice cannot be excluded but the matter carries little weight in the circumstances.

• [22] Merits: On my review of the evidence, the merits of the case are not strong. Mr Servera will face a further jurisdictional barrier to his claim in relation to whether he was dismissed. There is reasonable doubt as to whether he will succeed. The other possibilities are that Mr Servera resigned in protest on 24 September 2024, or that the employment continued after this time by agreement and had not terminated at the time the application was made. So far as the allegation of constructive dismissal is concerned, the apparent significance of the date of 4 November 2024 is that Hyatt had rostered Mr Servera for work on this day after concluding its investigation into his concerns of 25 September 2024. It seems a difficult argument to make that by rostering him for work, Hyatt forced Mr Servera to resign. The other possibility is that at this time, Mr Servera had decided he would not return to work.

• [23] Mr Servera says he was forced to resign on 4 November 2024 because he needed to pay the bills and had been months without pay by the time of his shoulder injury which prevented his return to work. I accept that by 4 November 2024, Mr Servera had not received any income from Hyatt since late September 2024, a period of approximately 6 weeks. The shoulder injury seems to have occurred in January 2025 and was notified to Hyatt in mid-February 2025. If the dismissal occurred on 4 November 2024, the shoulder injury could not have contributed to the circumstances that forced Mr Servera to resign.

• [24] I accept that Mr Servera held genuine concerns about the safety of the work environment in his two weeks at the Hyatt in September 2024. He felt deeply a reprimand he had received the day before he left, and did not feel he was being taken seriously. He did not accept Hyatt's findings in the investigation of his safety concerns. There is insufficient evidence to make a proper assessment of the claim that his concerns were brushed aside by his direct manager, and that his cessation of work on safety grounds was the only effective response in the circumstances. These matters would need to be resolved at hearing.

• [25] On balance, the merits do not weigh in support of a finding of exceptional circumstances.

• [26] Fairness as between Mr Servera and another person in a like position is not a relevant consideration in the circumstances. It is a neutral consideration.

• [27] In summary, the reasons for delay are ordinary, rather than exceptional circumstances, and although I accept that he experienced distress in connection with the breakdown of the employment relationship, there is a lack of medical evidence to support the submission that Mr Servera's capacity to apply to the Commission was relevantly impaired in the period after 4 November 2024. Emotional distress in connection with workplace disputes is relatively common rather than exceptional. The period of delay is lengthy, and no active steps were taken to dispute the alleged dismissal for many months after 4 November 2024. Although I do not exclude the possibility of prejudice to Hyatt if the matter proceeds, the matter attracts limited weight in the circumstances. The merits are not indicative of exceptional circumstances and the question of fairness as between others does not arise in any substantive way.

• [28] In all of the circumstances, I am not satisfied that there are exceptional circumstances in connection with the late filing of the application. This means that no additional time can be allowed for the application to be made. The application was not filed within 21 days after the dismissal took effect. It was not made in accordance with the Act.

• [29] The application is dismissed under s.587(1)(a) of the Act.

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