Fair Work Act 2009

s.365 - General protections

Application made under s 365 - extension of time - application dismissed

[1] Robinsson Celis Galeano has made an application under s 365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by ISS Facility Services Pty Ltd (respondent) in contravention of Part 3-1 of the Act. Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2). Mr Celis Galeano's dismissal took effect on 13 January 2026. The 21-day period ended on 3 February 2026. The application was lodged on 10 February 2026. For the application to proceed, Mr Celis Galeano requires an extension of time. The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in ss 366(2)(a) to (e).

[2] Mr Celis Galeano said in his application that the reasons for the delay (s 366(2)(a)) included that he had a medical condition and was suffering from stress following his dismissal, and that he was gathering medical and other evidence. Mr Celis Galeano also said that English is not his first language, that he does not speak it fluently, and that he needed assistance and an interpreter to understand his legal rights and the relevant processes. He said that the delay was not due to inaction but to the language barrier. I do not consider that these matters provide a reasonable explanation for the delay. I am not persuaded that Mr Celis Galeano's unspecified medical condition or his stress seriously impeded his ability to lodge his application on time. The F8 application document is a short and simple form requiring minimal details to be inserted. Further, the fact that Mr Celis Galeano does not speak English fluently does not mean that there was a language barrier inhibiting the timely lodgement of his application. The Commission's website contains ample information in plain English, as well as details of how to obtain assistance in other languages. The reasons for the delay do not weigh in favour of an extension of time.

[3] In respect of the other matters in s 366(2), I note the following. First, Mr Celis Galeano says that he took action to dispute his dismissal by gathering evidence and seeking legal advice, but to the extent that this can be regarded as disputing the dismissal, I attribute little weight to it (s 366(2)(b)). Secondly, I do not consider there to be any relevant prejudice to the employer (s 366(2)(c)). Thirdly, there are no matters that appear to me to be relevant to the question of fairness between Mr Celis Galeano and other persons in a like position (s 366(2)(e)).

[4] As to the merits of the application (s 366(2)(d)), Mr Celis Galeano contended that he had a good case because he was dismissed after making a medical disclosure to his employer, and because the medical evidence confirmed that he had the capacity to return to work with restrictions, but that no reasonable adjustments were made despite his requests, and that the sequence of evidence indicated that he was dismissed for a prohibited reason. The respondent submitted that the reasons for Mr Celis Galeano's dismissal were those cited in the termination letter, namely breach of company policy and absence from work without approved leave. The merits of the matter would depend on factual findings made by a court after hearing the evidence. I consider that Mr Celis Galeano has an arguable case to which the respondent has raised a plausible defence. I will regard the merits as a neutral consideration.

[5] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s 366(2), I am not satisfied that there are any exceptional circumstances in this case. Consequently, there is no basis for the Commission to extend time. The application is dismissed.

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