s.365 - General protections

Application to deal with contraventions involving dismissal

[1] Mrs Sarah Rogers has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Mrs Rogers' allegations that she has been dismissed from her employment with SKB Healthcare Pty Ltd (SKB) in contravention of Part 3-1 of the FW Act.

[2] Section 366(1) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. The application was made on 29 December 2025.

[3] The information in the application indicates that the application has been made out of time.

[4] Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application.[1]

[5] In summary, I have found that Mrs Rogers' dismissal took effect on 20 November 2025. The application should have been made on 11 December 2025 to comply with s.366(1) of the FW Act. The application was therefore made 18 days outside of the 21-day limit.

[6] I have found that the circumstances in which the application was made are exceptional, according to the factors in in s.366(2) of the FW Act, so I have granted an extension of time to file the application.

When must an application for the Commission to deal with a dismissal dispute be made?

[7] Section 366(1) of the FW Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

[8] There is no dispute between the parties that the dismissal took effect on 20 November 2025.

Was the application made within 21 days after the dismissal took effect?

• [9] As the Full Bench has stated, "[t]he 21 day period prescribed... does not include the day on which the dismissal took effect."[2]

[10] As I found above, the dismissal took effect on 20 November 2025. The final day of the 21 day period was therefore 11 December 2025 and ended at midnight on that day. The application was made on 29 December 2025. The application was made 18 days late.

[11] The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.

Should the Commission allow a further period for the application to be made?

[12] Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission 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.

• [13] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]

[14] I set out my consideration of each matter below.

• [15] For the application to have been made within 21 days after the dismissal took effect, it should have been made by midnight on 11 December 2025. The delay is the period commencing immediately after that time until 29 December 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
• [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.[5]

• [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.[6]

[18] In the application, Mrs Rogers cited the following reasons for the delay:

• Mrs Rogers lodged an unfair dismissal application in time on 30 November 2025 and a general protections claim on 15 December 2025 (the first general protections claim), believing the claims could run together.
• The delay was caused by confusion over the correct procedure for a mixed unfair dismissal/general protections claim.

[19] During the hearing, Mrs Broad clarified this information and advised that she initially submitted the incorrect form within the 21 day period following her dismissal, due to the stress that she was under. Mrs Broad explained that she thought that the unfair dismissal application 'included the general protections' and that by the time she heard back from the Commission by email, the time to 'resubmit' was 'further on'. I asked Mrs Broad whether, when she lodged the first general protections application on 15 December 2025, she intended to lodge two different applications. Mrs Broad confirmed that she intended to lodge only one application and that it was 'an innocent error on my part which application to go forward with'.

• On 11 December 2025, the Commission advised Mrs Rogers by email that the information in the unfair dismissal application showed that she had not worked for the minimum employment period required to lodge such an application.
• On 15 December 2025, Mrs Rogers lodged the first general protections claim.
• On 22 December 2025 the Commission sent Mrs Rogers an email confirming that she had made two applications in relation to the same dismissal.
• On 29 December 2025, Mrs Rogers discontinued both the unfair dismissal claim and the first general protections claim and lodged a second general protections claim.

[21] The Commission's email of 22 December 2025 advised Mrs Rogers that:

• under s.725 of the FW Act, Mrs Rogers cannot make more than one application about the same dismissal and that if her first application has not concluded or been discontinued, she could not submit a second application.
• if Mrs Rogers wanted to pursue a general protections claim she needed to discontinue both of the applications already filed and file a third application, being a new general protections application.
• Mrs Rogers would need to apply for an extension of time to lodge the third application more than 21-days from the date of her dismissal and provide evidence to explain why her application is late. A Commission Member will only grant an extension of time in exceptional circumstances.

[22] The Commission's emails to Mrs Rogers dated 11 and 22 December 2025 and the unfair dismissal application were provided to the parties following the hearing and the parties were invited to make submissions about these matters.

[23] The email from the Commission to the parties which accompanied this material dated 5 March 2026 relevantly provided:

Deputy President Wright notes that the F2 Unfair Dismissal application filed by Mrs Rogers appears to raise an alleged breach of the general protections provisions of Fair Work Act 2009 in that it states at paragraph 5 of page 6:

The dismissal occurred shortly after I raised legitimate NDIS clinical-governance and over-servicing concerns internally and began pursuing unpaid superannuation and wage entitlements - protected workplace rights under the Fair Work Act.

In the Deputy President's view, this may give rise to the possibility that the proper characterisation of Mrs Rogers' unfair dismissal application is that of a general protections application using the wrong form. A Full Bench of the Fair Work Commission dealt with a similar situation in Liam Hambridge v Spotless Facilities Services Pty Ltd and extended the time for the applicant to lodge the application - see attached decision.

[24] Both parties provided additional submissions in response to this material.

[25] Mrs Rogers made the following additional submissions:

As a self-represented applicant, I was confused about the correct form for a mixed claim. The substance of the Form F2 was a general protections claim involving dismissal under s.365, lodged timely...the Commission should prioritise substance over form under s.577(b), with power under s.586 to correct irregularities like using the wrong form.

I submit that the Form F2 should be re-characterised as a general protections application, aligning with its content and avoiding extension issues.

If not re-characterised, I alternatively request an extension for the Form F8 under s.366(2), as exceptional circumstances exist: genuine short delay from form confusion; immediate dispute in the meeting; no employer prejudice; strong merits (as per Digital Hearing Book submissions, e.g., texts showing revenue motive, statements on payment patterns/adverse action); and fairness to others facing similar patterns.

• [26] SKB submitted that there are marked differences in the facts and circumstances in Liam Hambridge v Spotless Facilities Services Pty Ltd (Harbridge)[7] compared to the facts and circumstances detailed in Mrs Rogers' application.

[27] SKB submitted that in Hambridge, the applicant intended to lodge an unfair dismissal application rather than a general protections claim and communicated that intention to the Commission, however, it was clearly Mrs Rogers' intention to lodge an unfair dismissal application. SKB submitted that there was no evidence provided which would indicate Mrs Rogers' intention was otherwise and that while there may have been some commentary in her application which may relate to the general protections provisions there is no evidence of any intention to make a general protections claim.

[28] SKB submitted that Mrs Rogers only decided to lodge a general protections claim after it was raised with her that she was not eligible for unfair dismissal. There was then a delay between Mrs Rogers being advised she was ineligible and lodging the claim, and a further delay between withdrawing the dual applications and filing the new general protections claim and the reasons provided for the delays were stress and family life. SKB submitted that this matter does not involve just an irregularity in the form used to lodge an application and that Mrs Rogers intended to apply for unfair dismissal.

[29] SKB also submitted that in Hambridge, there was no prejudice to the respondent but that this is not the case with this application. SKB submitted that the delays in the lodgement of applications resulted in SKB being notified of the general protections claim 67 days after the date of dismissal and at no point in this intervening time did Mrs Rogers communicate any belief or intention to dispute the decision to dismiss her. SKB submitted that this has affected its ability to gather appropriate evidence to counter Mrs Rogers' claims.

[30] The general protections application indicated that Mrs Rogers was employed from 28 July 2025 to 20 November 2025. Although Mrs Rogers filed an unfair dismissal application within 21 days of the dismissal, she was not eligible to make this application as she had not completed the minimum employment period as required by s.382(a) of the FW Act. It appears that Mrs Rogers was prompted to make the first general protections claim on 15 December 2025 because she became aware that she was not eligible to make the unfair dismissal claim after receiving an email from the Commission on 11 December 2025. The email from the Commission was sent on the final day of the 21-day period following the dismissal. The first general protections application was then filed four days after the 21-day time limit expired.

[31] The reason that Mrs Rogers discontinued the first general protections claim and commenced a second claim is because s.725 precluded Mrs Rogers from making the the first general protections claim in circumstances where she had a current unfair dismissal claim. If Mrs Rogers had discontinued the unfair dismissal claim prior to lodging the first general protections claim, it would not have been necessary for her to discontinue the first general protections claim and lodge the second general protections claim.

• [32] In Hambridge, the Full Bench considered an appeal by an applicant who had intended to lodge an unfair dismissal application. The applicant initially lodged general protections claim and realised that he filed an incorrect form while attending a conciliation. He then withdrew the general protections application and filed an unfair dismissal claim outside of the 21-day time period. The Full Bench considered that the initial application was an unfair dismissal application as it was intended to be one, it was described as one in Mr Hambridge's covering email, and its contents were concerned with contentions of unfairness in the dismissal rather than any cause of action for a contravention of Part 3-1 of the FW Act.[8] The Full Bench concluded that Mr Hambridge's error in using the wrong form for his first application, in non-compliance with s.585, could have been dealt with by either correction, amendment or waiver by the Commission under s.586, by dismissal of the application under s.587(1)(a), or by Mr Hambridge discontinuing the application under s.588.[9] The Full Bench ultimately concluded that the reasons for the delay were highly unusual and, apart from the initial error in using the wrong form, largely beyond the control of Mr Hambridge,[10] and that having regard to this and other relevant matters, exceptional circumstances existed which favoured the grant of an extension of time.[11]

A simple procedural error by Mr Hambridge led to a set of circumstances which ultimately caused him to discontinue the first application and make the late second application, when in fact the matter could have been rectified by the use of powers under s.586 without the need to make any late application at all. That is clearly an unusual situation...A mistake in using a wrong form by a self-represented applicant should not lead to an outcome which is fatal to the applicant's access to the Commission's jurisdiction.[12]

[34] I accept the submissions of SKB that Mrs Rogers' situation can be distinguished from the applicant's in Hambridge. However, the fact that Mrs Rogers referred to the general protections provisions of the FW Act in the unfair dismissal application is a relevant consideration. The Unfair Dismissal and General Protections Dismissal Application forms are in very similar terms.

[35] The initial sections of both forms are in identical terms which include requests for the applicant's personal details and the names of the respondent and their contact details. Section 1 of each form is in identical terms and is headed 'The Dismissal' and requests the following information:

• 1.1 Start Date
• 1.2 Dismissal notification date
• 1.3 Effective dismissal date
• 1.4 Timeframe to apply
• 1.5 Other claims

[36] Section 2 of each form is headed 'the Applicant's dismissal'. Under this heading, the Unfair Dismissal Form states, 'What happened and why does the Applicant think it is unfair? and the General Protections Form states, 'The reasons that the Applicant believes apply to their dismissal'.

[37] Section 3 of each form is in identical terms and is headed:

3.1 What outcome does the Applicant want from this case?

[38] As can be seen from the above analysis, the only sections in which the Unfair Dismissal and General Protections Dismissal Application forms differ is section 2. In section 2 of the Unfair Dismissal Form, Ms Rogers relevantly stated:

The dismissal occurred shortly after I raised legitimate NDIS clinical-governance and over-servicing concerns internally and began pursuing unpaid superannuation and wage entitlements - protected workplace rights under the Fair Work Act.

The dismissal was harsh, unjust and unreasonable and involved adverse action for exercising workplace rights.

[39] Mrs Rogers also raised these issues in the general protections claim before me.

[40] Given the similarity of the forms and that Mrs Rogers raised alleged contraventions of the general protections provisions of the FW Act in the unfair dismissal claim, I believe that there would have been strong grounds for the Commission to use its powers under s.586 to make the following corrections to the form:

• Delete the title of the form, being 'Unfair dismissal application Form F2' and replace it with 'General protections application involving dismissal Form F8'; and
• Delete paragraph 2.1 of the Unfair Dismissal Form, being 'What happened and why does the Applicant think it is unfair? and replace it with, 'The reasons that the Applicant believes apply to their dismissal'.

[41] The Commission cannot now make these amendments given that the unfair dismissal application was withdrawn, however I find that this is a matter which weighs in favour of a finding of exceptional circumstances.

[42] The first general protections application was filed four days after the Commission advised Mrs Rogers by email that she had not worked for the minimum employment period required to lodge an unfair dismissal application. The second general protections application was filed seven days after the Commission advised Mrs Rogers by email that if Mrs Rogers wanted to pursue a general protection claim she needed to discontinue both the unfair dismissal application and the first general protections applications already filed and file a new general protections application.

[43] Mrs Rogers' delay in filing applications in response to correspondence to the Commission contributed to the delay in filing the application before me. However ultimately these delays do not weigh against a finding of exceptional circumstances given that the Commission could have amended the unfair dismissal application. If this had occurred, it would not have been necessary for Mrs Rogers to file the subsequent applications, so Mrs Rogers' delay in doing so is not a matter which I give significant weight to.

What action was taken by Mrs Rogers to dispute the dismissal?

[44] Mrs Rogers disputed the dismissal by lodging an unfair dismissal application on 30 November 2025. As SKB did not receive a copy of the application due to it being discontinued, I regard this as a neutral consideration.

What is the prejudice to the employer (including prejudice caused by the delay)?

[45] Mrs Rogers submitted that SKB faces no prejudice from the delay, that no new facts or circumstances have arisen, that SKB has already submitted a detailed Form F8A response and that the claims related to events during her employment, with no material changes since the dismissal.

[46] SKB submitted that there was a significant 67-day delay between the date of termination and the date that it was formally notified of the general protections claim (27 January 2026). SKB submitted that this delay is materially prejudicial to it, affecting the accurate recollection of events and causing the loss of access to Mrs Rogers' work emails and documents due to standard retention policies. SKB submitted that Mrs Rogers did not attempt to dispute the termination at the time of the dismissal or in the subsequent 67-day period, yet she used this period to actively seek out and gather statements from former employees.

[47] I accept that SKB was not aware that Mrs Rogers was disputing the dismissal until it was notified of the general protections claim by the Commission on 27 January 2026. However, I do not regard the two month period between the dismissal and SKB receiving the application as lengthy. Further, it appears to me unusual that SKB would no longer have access to Mrs Rogers' work emails and documents particularly as SKB operates in the healthcare sector which is highly regulated and would ordinarily require robust record keeping. I accept Mrs Rogers' submission that SKB has already submitted a detailed Form F8A response and on that basis I believe that SKB is likely to have access to sufficient information to defend Mrs Rogers' claim. I therefore regard prejudice to SKB as a neutral factor.

[48] Mrs Rogers submitted that the application has strong merits, as the dismissal appears to be adverse action under ss.340-341 of the FW Act for exercising workplace rights.

[49] SKB submitted many of the statements made by Mrs Rogers are unsubstantiated and false and are not subject to the general protections provisions. SKB submitted that Mrs Rogers has not provided sufficient information and evidence with regards to her general protections claim. SKB submitted that any suggestion that Mrs Rogers' dismissal was in relation to issues raised regarding her pay entitlements is without basis as these were never raised with SKB during the course of Mrs Rogers' employment.

[50] Given that there is a significant dispute between the parties in relation to the facts surrounding the dismissal, it is not possible for me to make any firm or detailed assessment of the merits of the application without conducting a hearing and receiving evidence from the parties. I therefore find that this is a neutral consideration.

Fairness as between Mrs Rogers and other persons in a similar position

• [51] According to the authorities, the requirement to take into account fairness as between Mrs Rogers and other persons in a similar position involves considering Mrs Rogers in relation to other applicants employed by the same employer, and affected by the same issue, who filed applications in time.[13] Neither party provided any evidence or submissions in relation to this matter so I regard it as a neutral consideration.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

[52] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

(b) action taken by Mrs Rogers to dispute the dismissal; and

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

(e) fairness as between Mrs Rogers and other persons in a similar position

• [53] 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.[14] 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.[15]

[54] The reason for the delay weighs in favour of a finding of exceptional circumstances. The matters in s.366(2)(b)-(e) are neutral considerations.

[55] Having regard to all of the matters listed at s.366(2) of the FW Act, I am satisfied that there are exceptional circumstances. The Unfair Dismissal Form submitted by Mrs Rogers within the 21-day time limit alleged that the dismissal was in contravention of the general protections provisions of the FW Act. Although applicants may from time to time allege breaches of the general protections provisions in unfair dismissal applications, I do not regard this as commonplace. It is probably even more unusual for an applicant to file an application which is capable of being corrected pursuant to a.586 of the FW Act which was the case here. Because unfair dismissal applications are not routinely corrected in this way under s.586, Mrs Rogers could not reasonably have known this option was available to her, which resulted in her unnecessarily withdrawing the application and filing the general protections application outside of the 21-day time limit.

[56] Having regard to all of the matters at s.366(2) of the FW Act, I am satisfied that there are exceptional circumstances. On the basis of those exceptional circumstances. I am satisfied that it is appropriate to extend the period for the application to be made to 29 December 2025.

[57] The matter will shortly be programmed for conference so that the Commission can deal with the matter pursuant to s.368 of the FW Act.

Mr. K. Broad, Managing Director for the Respondent

[1] Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited [2022] FWCFB 234, [15]

[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A

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

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

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

[7] [2017] FWCFB 2811

[13] Ivan Whittle v Redi Milk Australia Pty Ltd [2016] FWC 3773, [38]

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

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