s 365 - General protections

General protections dismissal dispute - application filed out of time - advertisement of 'redundant' position - circumstances exceptional - extension of time for filing allowed

• [1] On 13 August 2025, Samuel Hill (the Applicant) applied to the Fair Work Commission for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Act requires an application made under s 365 to be lodged within 21 days after applicant's dismissal took effect or within such further period as the Commission allows under s 366(1)(b) of the Act.[1] The Phoenix Unit Trust (the Respondent) objected to the application on the basis that it was filed outside the 21-day period prescribed by s 366(1)(a) of the Act.

• [3] It is uncontentious that the Applicant's dismissal took effect on 15 July 2025 and therefore his application was lodged eight days after the statutory deadline. The Applicant contends that the reason for the delay in lodging his application was due to discovering that the Respondent had advertised his former role one day after the three-week period for making an application. The Applicant also states that during the delay period he was contending with the emotional and financial toll of sudden unemployment whilst attempting to secure new employment and, in addition, had mental health challenges.

• [4] For the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 366(1) and (2) of the Act provide that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the factors listed at s 366(2)(a)-(e). The issue before me is whether the circumstances are exceptional and, if they are, whether it is fair and equitable for an extension to be granted.
• [5] In the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am, on balance, satisfied that there are exceptional circumstances as contemplated by s 366(2) of the Act and furthermore, it would be fair and equitable that time should be extended to 13 August 2025. The matter will shortly be listed for conference.

• [6] The broader context and events leading to the conclusion of the employment, and the filing of the application, are as follows.

• [7] The Applicant commenced in the role IT Support Officer with the Respondent on or around 18 November 2024.

• [8] The Applicant adduced a Job Description Form for the position of IT Support Officer which provided, amongst other things, the following information:

Reporting to the IT Manager, the IT Support Officer is responsible for maintaining, use of computer and telecommunication systems within the organisation.

Responsibilities will include but are not limited to:

As an IT Support Officer, you will be responsible for providing technical assistance and support to internal users, ensuring the smooth operation of computer systems, networks, and software applications within the organization. Your primary goal is to resolve IT related issues promptly, minimise downtime, and contribute to the overall efficiency of the IT infrastructure...

• [9] The Respondent submitted that it decided to make the Applicant's role redundant in July 2025. According to the Respondent the Applicant was notified of a potential redundancy of his position on 8 July 2025 and he was consulted about the same on 14 July 2025.

• [10] By email dated 15 July 2025 time stamped 11:11:21AM, Dirk Pretorius (Pretorius), Management Accountant of the Respondent, informed the Applicant that the position of IT Support Officer had been made redundant effective immediately. The Applicant was further informed that he was entitled to one weeks' notice and would be paid his available leave entitlements. The email concluded with '[W]e wish you all the best in your future endeavours'.

• [11] On that same day the Applicant responded by email time stamped 11:17AM, asking for the reasoning (presumedly for the redundancy).

• [12] By email dated 15 July 2025 time stamped 11:38:04AM, Pretorius stated as follows:

We are commencing a consultation process to discuss this matter with you, provide all relevant information, and hear your views before any final decision is made. The reason for this potential redundancy is organisational restructure and workforce reduction due to economic circumstances.

• [13] The Applicant responded to Pretorius' email by a further email time stamped 11:41AM asking whether there was any evidence to back up the claim, for example, financial data, or other redundancies across the company.

• [14] By email dated 15 July 2025 time stamped 2:03PM, Pretorius responded:

To clarify, the decision to proceed with the redundancy of your position followed the formal consultation meeting held on Monday, 14 July 2025, which was attended by yourself, Peter Daly, and myself.

During that meeting, we discussed the organisational restructure and workforce reduction due to economic circumstances that have impacted the business. We specifically noted that our budgets for FY2026 have come in significantly lower than expected, and as a result, we are reviewing all roles across the company.

You were given the opportunity to provide feedback and suggest any alternatives, and your input was considered carefully. Unfortunately, we were unable to identify any suitable redeployment opportunities within the business.

As such, it was determined that your position as IT Support Officer is no longer required, and the role has been made redundant effective immediately.

• [15] The Applicant stated that the Respondent placed an advert on SEEK exactly one day after the three-week period for application lodgement, for a role the same as that which he had occupied (6 August 2025). The advert relied upon by the Applicant, which appears on its face to be legitimate, stated as follows:

Help Desk & IT Support (Information & Communication Technology)

Casual Role - 6 Month estimated duration - possibility of extension / permanent

• [16] In its response to the application, the Respondent contends that after the redundancy decision, the Respondent engaged an external recruitment agency to source a temporary (six month) project resource for an IT Disaster Management & Cybersecurity implementation approved on 30 July 2025, at the Respondent's Board meeting. The Respondent further submits that any such posting would have been placed by the agency in relation to that separate, fixed-term project role, not the redundant IT Support position.

• [17] Under s 366(1)(b) and (2) of the Act, the Commission has the power to extend the time within which an application for a general protections dismissal dispute can be made. In Tamu v Australia for UNHCR,[2] a Full Bench of the Commission summarised the principles relevant to applications of this kind:

[16] Section 366(1) provides 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 section 366(2). The 21 day period prescribed in section 366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.

[17] Section 366(2) of the Act sets out the circumstances in which the Commission may grant an extension of time as follows:

"(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."

[18] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension. A decision whether to extend time under section 366(2) involves the exercise of a discretion.

[19] The meaning of "exceptional circumstances" in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty),[3] as follows:

"[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance."

[20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.' (footnotes omitted)

• [18] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd ('Stogiannidis'),[4] a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers,[5] which had concluded that for 'exceptional circumstances' to be established, an applicant must provide reasons for the whole of the period of delay. In Stogiannidis the Full Bench expressed:

[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time 'needs to provide a credible explanation for the entire period', it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.

• [19] At the commencement of the hearing, the parties were referred to s 366(2) of the Act. Both were invited to make any further submissions in relation to the question of whether there were 'exceptional circumstances' by reference to those factors at paragraph [17] of this decision. Each of these factors are considered below and were outlined to the parties before the hearing.

• [20] The Act does not specify what reason for delay might tell in favour of granting an extension.[6] However, decisions of the Commission have referred to an acceptable or reasonable explanation.[7] The absence of any explanation for any part of the delay may weigh against an applicant in the assessment of whether there are exceptional circumstances. Whilst a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, all of the circumstances must be considered.[8]

• [21] The relevant period required to be considered under s 366(1)(a) of the Act is the period after the 21-day timeframe for lodging the application.[9] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[10]

• [22] The Applicant essentially relies on three matters as reasons for the delay in lodging his application.

• [23] First, and as noted, the Applicant states that on 6 August 2025 he came across an advert for what he claims was his 'redundant position' that had been posted one day after the conclusion of the 21-day period. Previous decisions of this Commission have considered similar circumstances.

• [24] In Smith v Penrite Oil Company ('Smith'),[11] the applicant, Mr Smith, filed an application for unfair dismissal some 27 days late. Mr Smith's position was made redundant on 1 May 2020, and he was dismissed on that same day. On 18 June 2020, he saw an advertisement on SEEK for a vacancy with his former employer, which he considered exactly the same as the role he had filled.[12] It was found that Mr Smith had, on seeing the vacancy, taken immediate steps to research on the Commission's website how to challenge his dismissal and he made his application for unfair dismissal remedy immediately thereafter - on that same day.[13] It was concluded that that Mr Smith had provided an acceptable explanation for the whole of the delay, which weighed in favour of a grant of an extension.[14]

• [25] Similarly, in Perret v Ayers Real Estate ('Perret'),[15] the applicant, whilst having considered making an unfair dismissal within the first week of her dismissal, did not, as she had no reason to suspect that the redundancy of her position may not be genuine. However, on 7 May 2020, the applicant found an advertisement online (at indeed.com) for a commercial property manager with the Respondent employer. That same day, the applicant caused an application for unfair dismissal to be lodged with the Commission.[16]

• [26] In Perret, it was found that on becoming aware that her dismissal, which took effect on 23 April 2020, may have been unfair, the applicant acted immediately and without delay to file the unfair dismissal application on 7 May 2020.[17] It was therefore accepted that the applicant's explanation for the period 23 April to 7 May 2020 was an acceptable or reasonable explanation and weighed in favour of a conclusion that there were exceptional circumstances.[18]

• [27] The circumstances of the Applicant in this case are somewhat analogous to those in Perret and in Smith. It is to be appreciated that in both Perret and Smith the applications were made under Part 3-2 of the Act, not Part 3-1. Further, what appeared to be at issue was whether the redundancies of the positions were 'genuine' in the sense referred to in s 389 of the Act. Notwithstanding, these decisions demonstrate that there will be circumstances where an applicant discovers an advertisement for a job with her or his former employer that substantially resembles that which the applicant previously occupied, and the delay in making an application can, at least in part, be plausibly attributed to the discovery of the advertisement and an applicant's timely response in filing an application. However, it is evident in Perret and Smith that the applicants in those cases acted with a sense of urgency, having promptly made an application on discovering that their former jobs appeared to have been advertised.

• [28] Having considered the advertisement in question and having compared it to the Applicant's job description, save for the position being that of a temporary contact role, I find that there is sufficient similarity in the positions to render them substantially alike. Furthermore, whilst the advertisement referred to the role being that of a temporary contract role, it provided for the possibility of an 'extension / permanent' (bold my emphasis). In this respect I find that there is a plausible reason for the period of delay between 6 August 2025 and 7 August 2025. It was not until this time that the Applicant had legitimate cause to question the reason for his dismissal.

• [29] The Applicant gave evidence that on viewing the advertisement on 6 August 2025 for a position that the Applicant considered was substantially similar if not the same as the one he had previously occupied, he sought legal advice.

• [30] The period between the Applicant discovering the advertisement and making his application was a period of seven days, excluding the date when the advertisement was discovered. As noted, the Applicant stated that on becoming aware of the advertisement he reached out to obtain legal advice and was encouraged to continue with a late application. The Applicant did not provide evidence in respect of his endeavours to obtain legal advice. A date as to when the Applicant sought the legal advice and that date upon which he obtained the legal advice were not furnished. As to evidence to support the contention of having received legal advice, again, no collaborating evidence was provided.

• [31] The Form F8 has been developed with a self-represented applicant in mind. It is not a complex document; it is not in the nature of a formal pleading; it is designed so that it may be completed by a layperson and may be lodged by a number of methods including online lodgement. Awaiting the receipt of legal advice prior to making the application does not, in my view, constitute a plausible reason for delay. Further, it is apparent that the Applicant was not seized with a sense of urgency to submit his application instead preferring to await the receipt of that purported legal advice before taking any further action.

• [32] Second, the Applicant refers to his reaction to his dismissal noting both the emotional and financial impact the dismissal had upon him. Whilst the Applicant speaks of the late filing of his application being, in part, because of the emotional and financial impact of the dismissal, there is no objective evidence before me to support the Applicant's account that he was emotionally incapacitated for the period of the delay. It is common for employees to suffer shock and trauma because of dismissal from employment.[19] Further, the Applicant was able to search for jobs during the period of the delay and, according to him, to seek out legal advice.

• [33] The Applicant has, in addition, referred to having mental health challenges. However, he has not provided any medical evidence in this matter so as to enable me to form a conclusion that his fitness to file an application provides a plausible reason for the delay in making the application. The subjective self-reporting of the Applicant and his noting of particular medical documents without the provision of the same are not a substitute for the medical evidence that would substantiate a claim that the Applicant was not in a fit condition to deal with the matter until the date of making his application. In short, the Applicant has failed to positively demonstrate that his mental health had impacted his mental capacity so as to prevent him from making the application within 21 days or otherwise in the period between 6 August 2025 and the date upon which he made the application.

• [34] I have considered the delay as the period beyond the 21-day period. Regard has been had to the circumstances from the date the dismissal took effect. Whilst I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the whole period of the delay in lodging his application, I do accept there is a plausible reason for part of the delay as detailed. Whilst appreciative that I have found the Applicant has presented a plausible reason for only part of the period of the delay, I nevertheless find that this factor weighs toward a finding of exceptional circumstances in light of the Applicant's discovery of the advertisement that was posted online one day after the expiry of the statutory period in s 366(1)(a) of the Act.

• [35] Action taken by the employee to contest the dismissal, other than lodging a general protections dismissal dispute, may favour granting an extension of time.[20] The Applicant outlined that during the period after his dismissal, he made enquiries about his rights and options, including contacting the Fair Work Ombudsman and an employment lawyer for a free consult. However, these steps do not constitute action taken to dispute the dismissal. This weighs against a finding of exceptional circumstances.

• [36] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted and therefore consider this criterion to be a neutral factor, noting that the mere absence of prejudice is not a factor that would point in favour of the grant of extension of time.

• [37] The Respondent contends that the prejudice includes the loss of certainty that the Act imposes by a strict 21-day limit, and the disruption and costs of defending out-of-time claims. The submission is, in my view, misconceived. Evidently, the legislature saw fit to allow for an extension of time to make an application in exceptional circumstances and where fair and reasonable to do so, the strict time limit therefore being subject to a 'qualification'. Further, a relevant prejudice is one that the Respondent would not have suffered, had the application been made within 21 days of the dismissal taking effect. In light of the short period of the delay, the disruption and costs in defending the application would, in the absence of evidence to the contrary before me, remain unchanged.

• [38] The Act requires me to consider the merits of the application in considering whether to extend time.

• [39] In Nulty, the Full Bench of the then Fair Work Australia considered the principles applicable to the extension of time discretion under s 366 of the Act. In that case the Full Bench said in respect to the merits of an application:

[36] It ought be regarded as well established that on an extension of time hearing 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).

• [40] In Telstra-Network Technology Group v Kornicki,[21] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[22]

• [41] In his application, the Applicant states that Part 3-1 of the Act has been contravened and asserts that his former employer was aware that his recent personal leave was taken for mental health reasons, and he believes this factored into his dismissal. In support of an extension of time, the Applicant refers to the Respondent's reliance upon financial circumstances for the reason for the redundancy only then to advertise a role substantially similar to that which the Applicant occupied only three to four weeks earlier.

• [42] The Respondent submits that the Commission should not conduct a mini trial of the merits on an extension application, noting that on the limited material filed, the Applicant's reliance on a job advertisement said to be 'similar' does not, of itself, demonstrate that the redundancy was not genuine for the purposes of the Act or that any adverse action occurred. The Respondent presses that employers may legitimately restructure and later recruit to materially different duties, seniority, hours, location, employment status or budget. As to the factual issues, the Respondent correctly identifies that whether the advertised role is in fact the same, or whether the operational requirements changed after 15 July 2025, are inappropriate to resolve at this threshold stage.

• [43] In my view the Applicant has established that the substantive application was not without merit. On the face of it, the job advertised held remarkable similarity to the Applicant's role, in respect of the job title and the duties and responsibilities. Whilst the Respondent relies in part upon the 'contract' and 'temporary' nature of the position advertised to distinguish the position, the advertisement expressly refers to the possibility of permanence. That the Respondent relied upon a restructure, an assertion that the role was redundant, and that there was no alternative option but to dismiss the Applicant, legitimately calls into question the reason or reasons for the adverse action (the dismissal) taken against the Applicant, when the advert is considered and the Applicant has pointed to the exercise of a workplace right in the form of personal leave.[23]

• [44] I accept that the Applicant's application is not without merit and acknowledge that it is 'not appropriate for the Commission to resolve contested issues of fact going to the ultimate merits' for the purpose of determining whether to grant an extension of time under s 366(2).[24] However, for the reasons provided I have concluded that this factor weighs in favour of a finding of exceptional circumstances.

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

• [45] The criterion of 'fairness as between the person and other persons in a similar position', was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:

[C]ases 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.[25]

• [46] The Commission's consideration of the factor under s 366(2)(e) is concerned with the

consistent application of principles in applications of this kind.[26] This ensures fairness as between an applicant and other persons in a similar position. However, applications for an extension of time generally turn on their own facts, and whilst I have referred to the decisions of Perret and Smith, I have addressed that they differed somewhat to the case before me now.

• [47] It follows that in the circumstances of this case, the consideration of fairness between the Applicant and persons in a similar position is a neutral consideration.

• [48] The conclusion as to the existence of exceptional circumstances will turn on a consideration of all the relevant matters and the assignment of appropriate weight to each.

• [49] As noted, in the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am, on balance, satisfied that there are exceptional circumstances as contemplated by s 366(2) of the Act and furthermore, that it would be fair and equitable that time should be extended. I am of the view that the circumstances are exceptional when one considers the purported reason for the Applicant's dismissal, the advertisement of the job, the timing of that advertisement, the adverse action taken in the form of the dismissal, and that the Applicant could point to the exercise of a workplace right.

• [50] I therefore extend the time for lodging an application to 13 August 2025.

[1] Fair Work Act 2009 (Cth) s 366(1).

[2] [2019] FWCFB 2384.

[3] [2011] FWAFB 975 ('Nulty').

[4] [2018] FWCFB 901 ('Stogiannidis').

[5] [2010] FWAFB 7251.

[6] Pottenger v Department of Caffeine [2018] FWC 3403, [31].

[9] Long v Keolis Downer [2018] FWCFB 4109, [40].

[10] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287 [12].

[11] [2020] FWC 3446.

[15] [2020] FWC 2981.

[19] Howard v Medical and Aged Care Group [2018] FWC 3454, [19].

[20] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

[21] (1997) 140 IR 1.

[23] Fair Work Act 2009 (Cth) s 341(1)(a).

[25] [2015] FWC 8885, [29].

[26] GHD Pty Ltd v Black [2023] FWCFB 38,

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