s.365 - General protections

Application to deal with contraventions involving dismissal - whether the application was made out of time - extension of time - whether exceptional circumstances exist - application dismissed

[1] On 11 November 2025, Ms Samantha Hernandez made an application under s. 365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute involving dismissal.

[2] Lead The Way Support Coordination Pty Ltd (LTW) objected to the application on basis that:

• • Ms Hernandez was engaged by LTW as an independent contractor[1] and was not an employee;
• • The contract between Ms Hernandez and LTW was brought to an end on 31 August 2025[2] by Ms Hernandez and accordingly there was no dismissal; and
• • The application was made outside the statutory 21 day timeframe.[3]

[3] LTW are a provider of support coordination for National Disability Insurance Scheme (NDIS) participants and Ms Hernandez was engaged to provide support coordination for LTW.

• [4] For a valid application to have been made, it must be lodged within 21 days after the dismissal took effect or within such further period as the FWC allows.[4]

[5] It is uncontested that the contract between Ms Hernandez and LTW was terminated on 31 August 2025 and accordingly, the application was filed out of time.

• [6] The discretion of the Commission to allow a further period is only enlivened if exceptional circumstances exist.[5]

• [7] Applying the interpretation of the Full Bench in Nulty v Blue Star Group Pty Ltd,[6] 'exceptional circumstances' describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

[8] For the reasons set out below, I do not consider that exceptional circumstances exist, having regard to the relevant factors set out in s. 366(2) of the Act.

[9] Section 366(2) of the Act states,

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.

• [10] The delay required to be considered under s. 366 (2)(a) of the Act is the time period following the prescribed 21-day timeframe.[7] However, the circumstances from the time the employment ended must be considered when assessing whether there is a reasonable delay, or any part of the delay, beyond the 21 days.[8]

[11] Ms Hernandez made the application more than 50 days outside the statutory timeframe and proffered the following reasons for the delay:

• Reliance on preliminary legal advice;
• Jurisdictional confusion;
• Voluminous correspondence from LTW; and
• The emotional impact of the events leading up to the termination of the contract.

[12] A finding that preliminary legal advice was one of the reasons for the delay was not supported by the evidence.

[13] Redacted emails submitted by Ms Hernandez show that she sought legal advice shortly after the contract between the parties came to an end.

[14] Ms Hernandez told the Commission that she sought advice regarding her legal rights as an independent contractor and acted on the advice she was given in relation to that.

• [15] Proceedings were filed with the Magistrates Court on 24 September 2025[9] seeking payment for an unpaid invoice.

• [16] There is no assertion from Ms Hernandez that a representative error has occurred, or that she was given incorrect advice. Instead she relies on a lack of understanding that she could have made a claim on the basis that she was an employee not a contractor.[10]

[17] Once she became aware, Ms Hernandez says that she sought additional legal advice regarding her options if she were an employee of LTW and made the application to the Commission soon after.

[18] In this context, what was ultimately put to me by Ms Hernandez in evidence is that she was unaware that she was able to make an application to the Commission alleging a breach of the general protections provisions on the basis that she was an employee of LTW. I find this to be the reason supported by the evidence for the delay in making the application, not reliance on legal advice.

[19] It is clear that Ms Hernandez was confused about the jurisdictions and her rights in those differing jurisdictions despite actively getting legal advice in relation to her engagement with LTW, but I do not consider this on its own to be a reasonable explanation for the delay.

• [20] It is well established that ignorance of the law on its own, does not amount to an exceptional circumstance.[11]

[21] It is not clear how lengthy and detailed responses from LTW impacted Ms Hernandez's ability to make the application to the Commission within the 21 days.

[22] In any event, I do not consider it to be a reasonable explanation for the delay.

• [23] Ms Hernandez submitted that the emotional impact of the events leading up to the termination of the contract contributed to the delay, adding in her evidence, "I have three children that I raise myself and also trying to, you know, work and provide an income to keep my house during that time while under deep distress."[12]

• [24] I accept her evidence that it was a difficult and emotional time for her, but I do not accept that it left her unable to make the application or to engage in a process to resolve her concerns about the contract ending.[13]

[25] It is clear that despite the stress Ms Hernandez was under, she was capable of seeking legal advice and pursuing a claim in another jurisdiction during the period of the delay, between 22 September 2025 and 11 November 2025.

[26] After considering each reason for the delay separately and collectively, the length of the delay, along with the evidence before the Commission, I am not satisfied that a credible reason for the delay has been provided, which weighs heavily against a finding that exceptional circumstances exist.

Any action taken by Ms Hernandez to dispute the termination

[27] There is significant correspondence between LTW and Ms Hernandez following the termination of the contract.

[28] It is a matter of dispute between the parties as to whether Ms Hernandez was an independent contractor or employee.

[29] To the extent that the correspondence deals with matters regarding that point, in this jurisdiction, I am unable to characterise whether a dismissal as defined by s. 386 of the Act occurred based on evidence before me.

[30] Therefore, I unable to make a finding in relation to this factor and consider this to be a neutral consideration.

Prejudice to LTW (including prejudice caused by the delay)

• [31] The prejudice relied on by LTW related to 'responding to two sets of overlapping proceedings.'[14] It was submitted by LTW that Ms Hernandez is seeking to rely on her contractual rights under the Independent Contractors Agreement to recover amounts in the Magistrates' Court proceedings while claiming in these proceedings that she was an employee.[15]

• [32] The Magistrates Court claim and its content were not in dispute between the parties and at the time of hearing, the Magistrates Court proceedings were still ongoing.[16]

[33] I have had regard to this and consider there is a prejudice to LTW in having to defend two competing claims.

[34] Accordingly, I find this factor to weigh slightly against a finding that exceptional circumstances exist.

• [35] There are jurisdictional objections to be dealt with prior to the Commission considering the merits, including whether the Applicant was an employee and whether a dismissal occurred.[17]

[36] On the limited information before me and in light of the disputed facts, I am unable to determine whether Ms Hernandez has an arguable case.

Fairness as between Ms Hernandez and other persons in a similar position

[38] Nothing of particular relevance has been raised in this regard. This is a neutral factor.

[39] The Applicant bears the onus of satisfying the Commission that there are exceptional circumstances, which then enlivens the Commission's discretion to grant an extension of time for making her general protections dispute involving dismissal. Ms Hernandez has failed to do that.

[40] The reasons for the delay and prejudice to LTW weigh against a finding of exceptional circumstances, with all other factors considered as neutral. I do not consider the prejudice to LTW to be determinative as the reason for delay weighs strongly against a finding of exceptional circumstances even in the absence of any identifiable prejudice to LTW.

[41] In weighing the considerations in s. 366(2) of the Act as a whole, I am not satisfied that the circumstances support a finding of exceptional circumstances and accordingly no valid application has been made.

• [42] The application is dismissed. An order giving effect to this decision will be issued in conjunction with its publication.[18]

A. Fornarino of Old Port Chambers with permission, on behalf of the Applicant.

A. Tarnowskyj of LK Law with permission, on behalf of the Respondent, Lead The Way Support Coordination Pty Ltd.

[1] Digital Hearing Book (DHB) at pp. 176-7, 185-6 and 257-277.

[6] [2011] FWAFB 975 at [13].

[7] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12].

[10] Audio Recording of Hearing (Part 1) at 36:56-37:16; 39:53-40:13 and 42:30-43:02.

[11] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14]; Rose v BMD Constructions Pty Ltd [2011] FWA 673 at [11].

[12] Audio Recording of Hearing (Part 1) at 39:20-39:34.

[13] See Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287; Rose v BMD Constructions Pty Ltd [2011] FWA 673.

[15] DHB at p. 246 and Audio Recording of Hearing (Part 2) at 25:43-25:54.

[16] Audio Recording of Hearing (Part 1) at 1:23:03-1:23:11.

[18] PR797789.

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