Fair Work Act 2009

s.365 - General protections

Application made under s.365 - application filed 125 days out of time - representative error - extension granted.

[1] Sean O'Connor has made an application under s.365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by Cleanaway Pty Ltd (Respondent) in contravention of Part 3-1 of the Act. Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2). Mr O'Connor asserts that his dismissal occurred on 18 July 2025 and in his Form F8 - General Protections Application Involving Dismissal (Form F8) lodged on 11 December 2025 (Application), Mr O'Connor acknowledged that his Form F8 was not being lodged within the required 21-day timeframe. The Respondent maintains that Mr O'Connor was neither an employee nor "dismissed" within the meaning of s.386 of the Act. Nonetheless, both parties confirmed that Mr O'Connor was advised that his services were no longer required, effective on 18 July 2025.

• [2] In Coles Supply Chain Pty Ltd v Milford (Milford)[1] the Full Federal Court considered whether, in a general protections application involving dismissal, the Commission was always required to determine a jurisdictional objection that there has been no dismissal, when an out of time objection is also made. The Full Court observed as follows:

[59] As discussed later in these reasons, there may be cases where the FWC may avoid drawing a conclusion as to whether or not an employment relationship has ended in circumstances that amount to a dismissal, and proceed to determine an application for an extension of time on the assumption that it has so ended. But on an application for an extension of time, ascertainment of the length of the delay between the date that the relationship ended and the expiration of the statutory time limit must be identified.

[86] In an appropriate case, it may also be permissible for the FWC to determine that the employment came to an end on a particular date without deciding whether or not the applicant was "dismissed" with the meaning of s 386 of the FW Act. In such a case it may be permissible to refuse to grant an extension of time even assuming, for the employee's benefit, that there was indeed a dismissal.

• [3] These observations from Milford were considered by a Full Bench of the Commission in Graham Taylor v Department of Justice and Community Safety[2] in the context of an unfair dismissal application made under s.394 of the Act. Relevantly, however, I consider that it can be discerned from the observations of the Full Court in Milford that an "appropriate case" in which it will be permissible for the Commission to assume that employment came to an end on a particular date, without deciding whether or not the applicant in question was "dismissed" with the meaning of s.386 of the Act, will be one where the applicant in question has alleged dismissal and the purported employer maintains there has been no termination on its initiative. The Full Court in Milford at [59] also considered it plain that that the length of a delay, which I consider is to be understood as commencing from the expiration of the 21-day time limit,[3] must be ascertainable in order for the Commission to determine an application for an extension of time. In this case, there appears to be no dispute as to when Mr O'Connor's arrangements with the Respondent ceased, with both the parties agreeing that this occurred on 18 July 2025. Having regard to Milford, I consider it permissible for me to proceed to determine Mr O'Connor's application for an extension of time assuming, for his benefit, that there was a dismissal on 18 July 2025. This approach was recently endorsed by a Full Bench of the Commission in Pathirana v Reshma Services Pty Ltd.[4]

[4] As the 21-day period ended on 8 August 2015 and the application was lodged 125 days late, on 11 December 2025, Mr O'Connor requires an extension of time. The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in ss.366(2)(a) to (e).

[5] As to the reason for the delay (s.366(2)(a)), I observe that Mr O'Connor works as an Owner Driver and, having engaged the law firm Scott Legal, deferred to his lawyers when it came to his legal options. Mr O'Connor was not particularly proactive once he had retained his lawyers. He was primarily focused on securing new work so that he could resume earning an income and mistakenly thought he could leave it to his lawyers to act in his best interests.

[6] On 28 July 2025, Scott Legal wrote to the Respondent outlining a number of contractual claims and seeking an urgent resolution of them. The Respondent replied on 5 August 2025 denying there was a contract of the sort alleged by Mr O'Connor and proffering that he could instead pursue a claim under clause 12.1 of purchase order terms and conditions with the requisite evidence. Mr O'Connor outlined in the Form F8:

"After discussing this with Scott Legal, I did not pursue a clause 12.1 compensation claim at that time. Instead, I sought guidance from a barrister as to my options following Cleanaway's response."

[7] During the ensuing 79 days, Scott Legal briefed Counsel, waited for advice regarding options, received Counsel's advice and communicated this to Mr O'Connor. As to the advice received from Counsel, Mr O'Connor stated that it was first relayed to him that he might have been in an employment relationship with the Respondent and that he should pursue a 'fair work' claim during a meeting on 23 October 2025. It is also apparent that it was communicated to Mr O'Connor that if he elected so, an extension of time to make an application would be required. Within a few days of 23 October 2025, Mr O'Connor instructed Scott Legal that he wanted to proceed with a claim at the Commission.

[8] It appears to have then taken Scott Legal approximately 3 further weeks to draft an application form to be settled by Counsel. On 21 November 2025, Counsel responded with some suggested amendments. A redrafted form was then prepared by Scott Legal and put to Mr O'Connor for his final instructions. Once the required instructions were provided, the Form F8 was lodged with the Commission on 11 December 2025. Having regard to this chronology of events, I do not accept the submission made on Mr O'Connor's behalf that "he acted promptly to initiate the case" once he was made aware of the "option" of making an adverse action application. A total of 49 days passed between Mr O'Connor receiving the advice from Counsel on 23 October 2025 and the ultimate lodgement of the Form F8 on 11 December 2025.

[9] The whole timeline illustrates action and inaction that caused delay. There were 79 days between the 5 August 2025 letter from the Respondent and the 23 October 2025 meeting at which Mr Scott was advised that he might have been in an employment relationship. Even if a law firm that purports via its website to provide "Expert Employment Law Guidance" did not conceive of the cause of action Mr O'Connor has ultimately settled upon until receiving advice from Counsel, the evidence before the Commission indicates that there was awareness of the statutory timeframe for lodgement of the proposed claim from at least 23 October 2025.

[10] It is difficult to see how Mr O'Connor's lawyers and Counsel could have let a further 49 days pass before a Form F8 was finally lodged, knowing that there was a 21-day time period within which to make a s.365 application and that Mr O'Connor was already 76 days late, and yet this is what appears to have occurred. The required sense of urgency was non-existent. Having retained legal advisers, Mr O'Connor was entitled to expect that they would represent him with expertise and diligence. This does not appear to have occurred. I attribute the delay in this matter to representative error and therefore consider Mr O'Connor has an acceptable and reasonable explanation for the delay. This consideration weighs in favour of a finding of exceptional circumstances.

[11] As to the other mandatory considerations, I accept that Mr O'Connor took other action to dispute the alleged dismissal when he instructed his lawyers to write to the Respondent on 28 July 2025 (s.366(2)(b)). This weighs marginally in favour of an extension. I have noted that 5 months passed after 18 July 2025 before Mr O'Connor lodged the Application and that the Respondent has suggested that it does not have access to background material predating its acquisition of the business for whom Mr O'Connor performed some work. However, I am not persuaded there is any material prejudice to the employer associated with the delay in this case (s.366(2)(c)), nor do I consider that there are any matters that are relevant to fairness between Mr O'Connor and other persons in a like position (s.366(2)(e)). I consider these to be neutral factors.

[12] As to the merits (s 366(2)(d)), Mr O'Connor outlined that he initially worked for CityWide, which was taken over by the Respondent, and that he subsequently performed work for the Respondent. Mr O'Connor asserts that prior to this takeover, and during the time that he performed work for the Respondent, there was a process whereby the Respondent offered written terms on which he could work for it. He claims that after making complaints about these terms, the Respondent ceased to engage him and that he therefore has a legitimate case to advance that the work that he in fact performed for the Respondent was casual employment. Mr O'Connor alleges the reason why he was not offered further work was the fact of his complaints about the terms being offered. He submits that that "if" casual employment was the relationship in place, it "would seem to support a strong case for unlawful adverse action."

[13] The Respondent maintains that Mr O'Connor was not its employee and therefore did not make a complaint about his employment. The Respondent asserts that an entity of which Mr O'Connor was the director and primary driver performed services for it on a purchase order basis from 1 July 2025 to 18 July 2025. The Respondent argues that there was no employment, no talk of employment, no offer of employment and no acceptance of any offer of employment. The Respondent claims Mr O'Connor simply issued invoices to it for services performed between 1 July and 18 July 2025 and those invoices have been paid.

[14] Having regard the material currently before the Commission, I consider that Mr O'Connor's argument that he was a casual employee is weak. He himself did not speak to it with compelling conviction and nor does it seem to have been an argument initially identified by his lawyers. However, I acknowledge I have not had the opportunity to hear evidence and that a more detailed assessment is not possible given the limited information before the Commission. The merits of the matter would ultimately depend on findings made by a court after hearing the evidence.

[15] Having considered each of the considerations in s.366(2) of the Act, I have found paragraph (b) weighs marginally in favour of an extension and that paragraphs (c) and (e) are neutral. I consider the merits of the application to be weak based on the material currently before the Commission but have found that paragraph (a) weighs in favour of granting an extension.

[16] The distinguishing factor in this case is that the legal representation Mr O'Connor has retained to date has been exceptionally and embarrassingly poor. Mr O'Connor's legal advisers left his eligibility to bring an application on the absolute edge of a precipice. If he has incurred not insignificant legal costs to date, it would be difficult to accept that the entire quantum is warranted. This is because the component of the legal costs associated with having to obtain an extension of time ought to have been avoided.

[17] Having weighed each of the considerations in s.366(2) of the Act and having considered them collectively, I have been persuaded that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act and I am also satisfied that it is appropriate to exercise my discretion to extend the time for Mr O'Connor to make the application to 11 December 2025. The matter will now be the subject of further directions.

[1] [2020] FCAFC 152; (2020) 279 FCR 591.

[2] [2025] FWCFB 173.

[4] 2026 FWCFB 64 at [7].

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