Fair Work Act 2009

s.365 - General protections involving dismissal

Maitland City Bowls, Sports and Recreation Club Limited

General protections application filed out of time - circumstances not exceptional - application dismissed.

• [1] This decision concerns an application by Ms Sandra Parker (Applicant) for the Fair Work Commission (Commission) to deal with a general protections dispute pursuant to s 365 of the Fair Work Act 2009 (Act) against her former employer, Maitland City Bowls, Sports and Recreation Club Limited (Respondent).

• [2] The Applicant seeks an extension of time to lodge her general protections application in the Commission.

• [3] I conducted a hearing, by telephone, on 22 July 2025 in relation to the Applicant's request for an extension of time.

• [4] The Applicant was dismissed on 28 January 2025 and lodged her general protections application in the Commission on 11 June 2025.

• [5] Section 366(1) of the Act states that an application under s 365 must be must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 366(2). The period of 21 days ended at midnight on 18 February 2025. The application was therefore filed 113 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 366(2).

• [6] The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are 'exceptional circumstances'. 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.[1] 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.[2]

• [7] The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [8] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(b) any action taken by the person to dispute the dismissal;

(c) prejudice to the employer (including prejudice caused by the delay);

(e) fairness as between the person and other persons in a similar position.

• [9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.

• [10] The delay required to be considered in s 366(2)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

• [11] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[5]

• [12] The Applicant put forward a number of reasons for the delay in filing her application, including a lack of knowledge on her part about general protections applications, allegedly incorrect legal advice from Legal Aid, mental health struggles following her dismissal (which led to the cessation of her new employment on 8 June 2025), and being the subject of robberies in her new employment after her dismissal by the Respondent. I accept the Applicant's evidence that she has suffered very real mental health struggles since the termination of her employment by the Respondent. However, the Applicant accepted at the hearing of her extension of time application that if she had known about general protections applications at the time of her dismissal, she would have been able to file a general protections application in the Commission within 21 days of her dismissal. This is consistent with the statement in the Applicant's unfair dismissal application that she "would have immediately filed an application" if she had been advised at the time of her dismissal that a general protections application was available to her.[6] Accordingly, I do not consider that the Applicant's mental health struggles, or the robberies she unfortunately encountered after her dismissal by the Respondent, were an operative part of the reason for the long delay in filing the application in the Commission on 11 June 2025.

• [13] On 5 February 2025, the Applicant organised a telephone call with Legal Aid to discuss the termination of her employment. The Applicant's telephone call with Legal Aid took place on 12 February 2025. The call was brief; it lasted about 15 minutes. The Applicant does not recall whether the person to whom she spoke from Legal Aid was a solicitor or not. The Applicant provided Legal Aid with some documents concerning her dismissal. She also explained to the person from Legal Aid that she had been employed by the Respondent for about four months as a casual employee. The person from Legal Aid told the Applicant, correctly, that she was not eligible to make an unfair dismissal application. The Applicant also told the person from Legal Aid that she had made a bullying complaint against her supervisor before she was dismissed and the complaint had been dismissed by the Respondent. The Applicant explained to the person from Legal Aid why she believed she had been bullied. The person from Legal Aid said it was unfortunate that the Applicant had been bullied and it was unfortunate that the Respondent's manager did not believe her when she reported the bullying to him. The Applicant asked the person from Legal Aid whether there was anything she could do if she was not eligible to make a claim for unfair dismissal. The person from Legal Aid informed the Applicant that unless she was willing to pay for her own lawyer, there was nothing she could do through Fair Work or Safe Work.

• [14] The Applicant did not obtain any written advice from Legal Aid. Nor did the Applicant seek to adduce any evidence from the person from Legal Aid to whom she spoke for about 15 minutes on 12 February 2025.

• [15] Having regard to all the circumstances, I am not satisfied on the evidence before the Commission that the delay in filing the Applicant's general protections application was caused by any 'incorrect legal advice' from Legal Aid, as contended by the Applicant. First, the Applicant has not established that she received legal advice from Legal Aid because the Applicant does not know whether the person to whom she spoke from Legal Aid was a solicitor. Secondly, the Applicant did not ask for advice from Legal Aid about making a general protections application because she did not know anything about such applications at the time she spoke to Legal Aid. Thirdly, in the brief initial telephone discussion between the Applicant and a person from Legal Aid on 12 February 2025, the evidence does not establish that the Applicant told the person from Legal Aid that she believed she was dismissed because she made a bullying complaint. Fourthly, it is clear from the reference by the person from Legal Aid to the Applicant that she could "pay for her own lawyer", as well as the short duration of the telephone call on 12 February 2025, that Legal Aid was not purporting to give the Applicant any detailed or comprehensive advice about all the potential legal causes of action which may have been available to her.

• [16] I accept that the Applicant did not become aware that she could potentially make a general protections application against the Respondent until her partner told her about such claims on 8 June 2025. The Applicant then had to wait for payment before she could pay the application fee for a general protections application and lodge her application in the Commission on 11 June 2025. I accept that the Applicant acted promptly after becoming aware of her potential right to make a general protections application.

• [17] In light of all the circumstances, I am satisfied on the evidence before the Commission that the Applicant's lack of knowledge about general protections applications was the primary reason for the long delay in lodging her application in the Commission on 11 June 2025. I am not critical of the Applicant for being unaware of general protections applications before she was told about them by her partner on 8 June 2025. But I do not consider that a lack of knowledge about the law or legal claims that can be made following termination of employment provided the Applicant with an acceptable or reasonable explanation for the long delay in filing her application in the Commission, nor does it establish an exceptional circumstance.[7]

• [18] The Applicant made a complaint to Safe Work Australia about her alleged bullying. However, there is no suggestion in the material before the Commission that the Applicant took any action to dispute her dismissal before filing her application in the Commission.

• [19] Notwithstanding the Respondent's submission that it would be prejudiced by an extension of time, I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. Mr Jervis was the manager who made the decision to terminate the Applicant's employment. His evidence demonstrates that he has a good recollection of the reasons he made his decision to bring the employer employee relationship between the Applicant and the Respondent to an end on 28 January 2025.

• [20] The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

• [21] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the general protections application are set out in the materials that have been filed, and I do not repeat them here.

• [22] The Applicant contends that she was dismissed because she exercised a workplace right in making a bullying complaint against her supervisor. The short time period between the Applicant making her bullying complaint and the termination of her employment provides some support for the Applicant's contention of a causal link between the exercise of her workplace right and the decision to terminate her employment.

• [23] The Respondent accepts that the Applicant made a complaint of bullying against her supervisor. However, the Respondent says that it investigated the complaint and determined that no bullying had occurred. The Respondent says that it decided to terminate the Applicant's employment because she had been telling employees that her supervisor was a bully in circumstances where the Respondent had determined that she was not. The Respondent contends that the Applicant's conduct in this regard was in breach of its policy and had given rise to a psychosocial hazard because the supervisor who the Applicant was continuing to allege was a bully had not been sleeping as a result of the rumours being spread around the workplace about her.

• [24] Although the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory, I do not consider that the Applicant has a strong general protections case. Her case is arguable, but the evidence given by Mr Jervis as to his reasons for deciding to terminate the employment of the Applicant, a casual employee with about four months' service, were persuasive. It rings true that Mr Jervis decided to terminate the employment of a casual employee in their probationary period because the casual employee continued to allege that their supervisor was a bully in circumstances where Mr Jervis had determined that they were not and the ongoing allegations of bullying were having a significant impact on the supervisor. I did not find the evidence in support of the Applicant's claim that she had been dismissed because she had made a bullying complaint to be strong. Much of the evidence was speculation and opinion. The following message from Mr Jervis to supervisors about the Applicant's dismissal says the decision to terminate the Applicant's employment was made following a bullying complaint by the Applicant, but then explains that some of the things said [by the Applicant] go directly against the Respondent's grievance policy, which was the reason for termination given by Mr Jervis in his evidence before the Commission:[8]

"Afternoon all, Sandra will no longer be working here at CMC, the decision was made following a formal investigation into a bullying complaint by Sandra and then consequently a complaint from a different party in regards to slander and defamation. Some things were stated in this investigation that go directly against the clubs grievance policy and I will be seeking clarification from you guys at Thursdays meeting..."

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

• [25] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts. In all the circumstances, I consider this factor to be a neutral consideration.

• [26] I have given close attention to the detailed written and oral evidence which was carefully prepared and presented by the Applicant in support of her application for an extension of time. I have sympathy for the Applicant's circumstances and the struggles she has encountered since the termination of her employment with the Respondent. However, taking into consideration the matters I am required to take into account under s 366(2) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case. The Applicant has an arguable general protections case, but the balance of the considerations are neutral or weigh against a finding of exceptional circumstances. In my assessment, the overall circumstances of this case are not out of the ordinary course, unusual, special or uncommon.

• [27] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2). Accordingly, the Applicant's general protections application must be dismissed.

Ms N. Shaw legal representative from ClubsNSW, appeared for the Respondent.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Long v Keolis Downer [2018] FWCFB 4109 at [40].

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

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