Fair Work Act 2009

s.365 - General protections

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

• [1] On 27 March 2025, Ms Samantha Rowe (Applicant) applied under s 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal (the Application).

• [2] On 2 May 2025 Falcon Traffic Pty Ltd (Respondent) filed its F8A Response to the general protections application, and raised a jurisdiction objection that the Applicant had not been 'dismissed' as is contemplated in s 365(a) of the Act. It also stated that its correct legal name is Falcon Traffic Pty Ltd, which I have now amended the name of the proceeding to reflect.

• [3] In her Form F8 application filed with the Commission Ms Rowe initially stated, in response to Q1.3 what date did you dismissal take effect?, that she had not been dismissed. However, in a subsequent call with Registry staff on 30 April 2025, she advised that the date of her dismissal was 16 January 2025, being the date of her last shift. Based on the dates provided by the Applicant, the Application was made outside the 21-day time limit set out in s 366(1) of the Act (out of time jurisdiction issue), which requires an application under s 365 to be made within 21 days after the dismissal took effect.

• [4] Upon the matter being allocated to me, I issued directions for the filing of evidence and submissions in regard to both jurisdiction issues that arose in the matter and scheduled a Mention with the parties for 20 May 2025. On 19 May Ms Rowe advised my Chambers she was unable to attend the Mention. An email was subsequently sent to the parties confirming the Mention would be vacated and relevantly stating (original emphasis):

"Amended Directions - extension of time question only.

The Directions issued on 13 May addressed both jurisdictional issues that arise in this matter, being the extension of time question (as based on the date she says she was dismissed Ms Rowe has filed her application outside the 21 day time limit set out in s.366(1) of the Fair Work Act), and the Respondent's jurisdiction objection that Ms Rowe is a casual employee, and was not dismissed.

The Deputy President has decided he will determine the extension of time question first.

Accordingly, please find attached Amended Directions issued in this matter, which replace the Directions previously issued on 13 May 2025.

Please ensure you read the Amended Directions carefully, as they provide important information about the matter including what each party must now do, and ensure you comply with the due dates set out.

For avoidance of doubt, the Respondent's objection that Ms Rowe was not 'dismissed' will be determined after the extension of time conference/hearing (if required).

Parties will also shortly receive a notice of listing scheduling the Extension of Time Conference/Hearing in this matter at 10.00am AEST on Wednesday 2 July 2025, by video using Microsoft Teams.

The court date has been bought forwarded given the simpler nature of the extension of time issue. It will now also proceed by way of Teams, rather than in person at the Commission.

In regard to the court date, the Deputy President confirms Ms Rowe is expected to attend - she should make arrangements with her employer to ensure she will be available."

• [5] Pursuant to those amended directions, Ms Rowe was required to file the material she intended to rely on in support of her application for an extension of time by 3 June 2025, and the Respondent's material, if any, was due 17 June 2025.

• [6] On 20 May 2025 the Respondent confirmed in correspondence to Chambers that it was not filing any further material in response to the extension of time application.

• [7] No response was received from Ms Rowe, and on 5 June 2025 further correspondence was sent to the parties noting Ms Rowe was yet to file any material by the due date, or provide an explanation for not doing so. Ms Rowe was asked to let my Chambers know if she wished to discontinue her matter, or otherwise by midday 6 June 2025 file and serve all the material that ought to have been submitted by 3 June, and reasons for her non-compliance, including any supporting evidence. Ms Rowe was advised that failure to comply with these requirements might lead to her matter being dismissed without further notice to her, including determination of the extension of time question on the basis of the material currently before me.

• [8] There was no response from Ms Rowe to this correspondence, and on 11 June 2023 a further email was sent to the parties which stated:

I refer to the below correspondence to Ms Rowe on 5 June in regard to her non compliance with the Directions of the Commission, and confirm that Ms Rowe has not filed any material in regard to the extension of time question nor provided any explanation to the Commission as to why she hasn't.

As no response has been received, and Chambers has not been advised Ms Rowe wishes to discontinue her application, the Deputy President will now proceed to determine the extension of time question on the material currently before him.

A copy of the Deputy President's decision will be emailed to the parties, as well as published on the Fair Work Commission's website."

• [9] This decision therefore deals with the 'out of time' issue only and, specifically, whether there are 'exceptional circumstances' existing such that Ms Rowe should be permitted an extension of time of 49 days to make her application.

• [10] Whether or not the Commission will grant an extension of time is a question to be determined having regard to s 366(2) of the Act. Section 366(2) states:

"(2) The FWC may allow a further period for the application to be made by a person under subsection (1) 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 similar position."

• [11] In order for the Commission to allow this further period of time, it must be satisfied that there were 'exceptional circumstances' which led to the application being made outside of the time frame. Exceptional means that the circumstances were out of the ordinary course, unusual, special or uncommon (Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [13]).

• [12] In the amended directions issued on 19 May 2025 I confirmed to the parties that the Commission will proceed on the basis that the date of dismissal was 16 January 2025, as stated by the Applicant. No alternative date has been proffered by Ms Rowe.

Section 366(2)(a) - Reason for the delay

• [13] For the general protections application to have been made within 21 days after the dismissal took effect, it needed to have been made within 21 days of 16 January 2025. As such, Ms Rowe was required by section 366(1)(a) to have filed her application by 11.59pm on Thursday, 6 February 2025.

• [14] The delay is the period commencing immediately after that time until the date the application was lodged on 27 March 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[1]

• [15] As the application was lodged on 27 March 2025, the application was lodged approximately 49 clear days late.

• [16] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[2]

• [17] 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.[3]

• [18] In the matter before me, Ms Rowe has not provided any reason for the delay in response to the Directions issued, to support a finding of exceptional circumstances. The only information before me is in Ms Rowe's Form F8 in which she stated that she was not making the application within 21 days of dismissal taking effect (Q.1.4) and the reason provided was:

"I was not told I have been dismissed. I waited a couple of weeks for my boss to give me a shift and he didn't so I seeked legal help".

• [19] The delay in the present case is lengthy and is well past the 'couple of weeks' Ms Rowe refers to, and I am not satisfied that the limited explanation from Ms Rowe before me for the delay in commencing her application point to circumstances that would support a finding of exceptional circumstances. Of the factors I must consider in s 366(2), I consider the factor in s 366(2)(a) tends strongly against the application for an extension of time.

Section 366(2)(b) - action taken by the Applicant to dispute the dismissal

• [20] Where an applicant takes action to contest a termination, it will put the respondent on notice that its decision to terminate the applicant's employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[4]

• [21] There is nothing before me from Ms Rowe addressing this factor, and it is not a factor that I consider supports a finding of exceptional circumstances, whether on its own or with any other factor.

Section 366(2)(c) - the prejudice to the employer (including prejudice caused by the delay)

• [22] 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.

Section 366(2)(d) - the merits of the application

• [23] 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)"[5].

• [24] In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. While it is not generally expected that a party will file detailed evidence about the merits of a claim for the purposes of an extension of time application, Ms Rowe has filed nothing. She makes some very high level assertions in her Form F8 application, but none indicative of a cogent claim based on the general protections provisions of the Act.

• [25] I consider that the merits of the application tend against a finding of 'exceptional circumstances'.

Section 366(2)(e) - fairness as between the Applicant and other persons in a similar position

• [26] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances. It is a matter I treat neutrally between the parties.

Is the Commission satisfied that there are exceptional circumstances?

• [27] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

• [28] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[6] Exceptional circumstances may 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 can be considered exceptional.[7]

• [29] I have already set out above my observations in respect of the specific factors that I must take into account. When having regard to all of the matters listed at s 366(2) of the Act, I am not satisfied that there are exceptional circumstances of the kind required by the statute, whether taken individually or in combination. There are no other matters that I am aware of that would otherwise point to a conclusion of "exceptional circumstances".

• [30] Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. Ms Rowe's application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order[8] to this effect will be issued in conjunction with this decision.

[1] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[4] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

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

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[8] PR788574.

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