s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] On 12 August 2025, Mr. Simon Gabriel was dismissed from his employment with Cutri Fruit Trusco Pty Ltd (CFT).

• [2] On 19 September 2025, he made an application alleging he was dismissed from his employment in contravention of Part 3-1 of the Act. General protections applications are required to be made within 21 days of the dismissal taking effect. His application was 17 days late.

• [3] The Commission has power to extend the time for making the application if the Commission is satisfied that there are exceptional circumstances under s 366(1)(b).

• [4] On 12 December 2025, I heard Mr. Gabriel's extension of time application by way of a determinative conference by Microsoft Teams. Mr. Gabriel appeared and represented himself. CFT was represented by Mr. Mick Moy, a Partner of the firm Seyfarth Shaw. Mr. Michael Tempini, the General Manager of CFT and Ms. Gretchen Scalora, the Human Resource Manager of CFT were also present.

• [5] For the following reasons, I do not grant an extension of time to Mr. Gabriel and therefore his application is dismissed.

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

• [6] Before dealing with the dispute, I must be satisfied that the application was made in time.

• [7] Section 366(1) of the Act provides:

(1) An application under section 365 must be made:

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

(b) within such further period as the FWC allows under subsection (2).

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

• [8] The 21-day period does not include the day on which the dismissal took effect.[1]

• [9] Mr. Gabriel's application was filed on 19 September 2025. It was 17 days late. I therefore need to consider whether to make an order to extend the period to make the application.

• [10] I may allow a further period for a general protections application if I am satisfied there are exceptional circumstances, taking into account:[2]

(b) any action taken by Mr. Gabriel to dispute the dismissal.

(c) prejudice to CFT (including prejudice caused by the delay).

(e) fairness as between Mr. Gabriel and other persons in a similar position.

• [11] Each of these matters must be considered in assessing whether there are exceptional circumstances.[3]. It is well settled that in s 366 "exceptional circumstances" means "out of the ordinary course, unusual, special or uncommon". The circumstances are not required to be unique, unprecedented or rare.

• [12] A reason for the delay is not of 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.[4]

• [13] 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 Mr. Gabriel has not provided any reason for any part of the delay.[5]

• [14] Mr. Gabriel gives five reasons for his delay which I describe below.

• [15] Mr. Gabriel, in his written submissions, describes the following as the primary reason for his delay:

Immediately following my dismissal, I contacted my former employer to request my payment records covering the four years of my employment. These records were important to me because I believed they were necessary to support any formal complaint or claim. I approached my former boss, Michael, who verbally agreed to organise the documents. He told me directly that he would speak to the accountant and ensure the records were sent to me.

Because this communication was entirely verbal, I had no written confirmation or ability to prove the agreement. I relied on my employer's assurances and waited for the documents, believing that I needed these records before I could proceed with Fair Work. Unfortunately, despite my requests and my patience, the company never provided the payment records.

This delay - and my belief that the documents were required - significantly contributed to the late submission of my application.

• [16] CFT submits this reason cannot be a valid reason for the delay because:

[Mr. Gabriel] did not make any attempt to obtain payment records and the documents he did request from CFT were provided to him on 14 August 2025, 19 days prior to the deadline for lodgment of his Application. As such, this is not a valid reason for his delay.

• [17] Attached to the Statement of Mr. Micheal Tempini, the General Manager of CFT, is a WhatsApp message from Mr. Gabriel which seems to infer he had all the documents he had requested on 14 August 2025, two days after he had been dismissed. (the 14 August message). That message contained the following paragraph (with emphasis added).

Thank you so much for taking the time to gather and send me all the documents I requested. I've now received everything and I truly appreciate your help and support.

Forced departure from company accommodation and housing instability

• [18] Mr. Gabriel explains this reason as follows:

After my dismissal, I initially remained in the company-provided accommodation while waiting for the payment records. However, the company repeatedly instructed me to vacate the property immediately, leaving me with no stable place to live.

As a result, I had to relocate urgently to Melbourne to search for housing.

Upon arrival, I had to stay in a motel, as I had no permanent address. Later, my brother offered temporary accommodation in a house in Melbourne. However, this house was under a real estate agent's contract, meaning I was not permitted to stay long-term. This forced me to search again for another place to live.

Thank you so much for taking the time to gather taking the time to gather and send me all the documents I requested. I've now received everything and I truly appreciate your help and support.

I wanted to let you know that I will be leaving Boga's home next 23 August 2025.

• [19] CFT asserts his housing predicament was not a valid reason for the delay:

His housing, relocation and accommodation searching issues are not, in any way, unusual, special or uncommon. They are an entirely normal outcome of having employer-provided accommodation which needs to be vacated when employment ends. They do not explain why he was unable to compile and lodge his Application in the 21 day time period.

Ongoing Centrelink appointments and administrative burden

• [20] Mr. Gabriel explained this reason in his written submissions:

During the same period, I was required to attend Centrelink appointments approximately once per week. These appointments were part of a long, complex process and required me to provide documents, attend interviews, and follow instructions closely to comply with Centrelink requirements.

The frequency of these appointments and the need to manage my financial situation took a significant amount of time and focus. This ongoing administrative burden further reduced my ability to complete the Fair Work application within the 21-day limit.

• [21] CFT argues this cannot be a valid reason for delay:

One Centrelink appointment per week is not, in any way, unusual, special or uncommon. It is an entirely normal outcome of ceasing employment and looking for a new job. These two (maximum three) meetings with Centrelink do not explain why he was unable to compile and lodge his Application in the 21 day time period.

Serious deterioration of health and medical treatment requirements

• [22] Mr. Gabriel states that during the period of delay his physical health deteriorated significantly. He experienced headaches and spinal pain which required him to attend clinics regularly. Upon examination, his doctor found evidence of a serious prior injury and issued referrals for MRI scans to both his brain and spine.

• [23] He filed the following evidence in support of this argument:
  • An undated referral to the Neurosurgery department at St Vincents hospital.
  • An Imaging Report from Monash Imaging on his spine prepared by Dr. John Daly on 22 October 2025 (a month after the application had been filed) which establishes Mr. Gabriel had a bulging disk.
  • A certificate of capacity based on an examination that occurred on 28th October 2025 by Dr. Amy Zhou which indicated that he can perform various physical activities, including sit, stand, bend, squat, and kneel with modifications. The certificate states Mr. Gabriel cannot lift. It also reports his judgement has been affected.
  • An MRI brain scan approved by Dr. Douglas Anderson on 8 November 2025 which reported "areas of contusion involving anterior frontal lobes".
  • Other documents include photographs of Mr. Gabriel in hospital.

• [24] CFT says this reason is not valid because his medical evidence is:

"...entirely relating to the period well after he filed this Application. His employment ceased on 12 August 2025. He should have lodged his Application by 2 September 2025. He lodged it on 19 September 2025. The 'medical evidence' all relates to the period after 2 September 2025. None of it provides any support for any suggestion that his health prevented him from lodging his Application by 2 September 2025."

Lack of early knowledge of Fair Work Rights and processes

• [25] Mr. Gabriel said the following concerning this reason:

Throughout this period, I still had not received any employment payment records from the company.

I then remembered that before leaving the company, Jessica, a former colleague, had given me a Fair Work information sheet. This was the first time I became aware that workers could seek assistance when facing unfair or unlawful treatment.

After reading the information, I researched online, found the relevant complaint form, and submitted it immediately upon understanding my rights and the process.

Before this, I genuinely did not know how or where to lodge a complaint.

Fair Work then informed me that my submission was late and asked me to provide reasons. Although my initial explanation was brief, Fair Work accepted my application for further processing.

• [26] He raised a further reason related to the time of the receipt of the F8A form from CFT. This cannot be a reason for the delay because it was after the application had been filed.

• [27] Even if I accept Mr. Gabriel's submissions that he did not receive all his employment records, this cannot be a sufficient reason to delay the filing of a general protections application.

• [28] Mr. Gabriel's general protections application alleges he was dismissed for reasons that include the exercise of workplace rights. No element of this claim requires a complete set of documents relating to payments received. The fact Mr. Gabriel alleges his requests for these documents were part of the reason for his dismissal does not require him to produce any of those documents. A claim for an underpayment of wages is an entirely different cause of action.

• [29] Where an employer provides an employee with company housing, it is not uncommon for them to be evicted once their employment ceases. The fact he had to move into a motel does not prevent him from filing a simple general protections application in a variety of simple ways. This therefore cannot provide a sufficient reason for the delay.

Appointments for Centrelink and the administrative burden

• [30] Mr. Gabriel says attending Centrelink appointments once a week and the administrative requirements for unemployment benefits is a valid reason for delay.

• [31] Most people who find themselves dismissed must interact with Centrelink and therefore that requirement cannot be regarded as special. The time he claims is taken up by the appointments and the administrative burden on him because of them would leave more than adequate time to complete an application. It follows this reason of itself does not justify a delay in filing his application.

• [32] All the medical reports and documents Mr. Gabriel filed were produced after the period of the delay. It follows I cannot be satisfied that those conditions impeded him from lodging an application on time.

Lack of knowledge about Fair Work processes and rights

• [33] Few people are familiar with the Act or with the processes of this Commission outside a small sect of lawyers, employers and union representatives. This lack of knowledge is common rather than special.

• [34] The reasons for the delay articulated by Mr. Gabriel, either individually or collectively, do not provide sufficient reason for the delay. This counts against an extension of time being granted.

WHAT ACTION WAS TAKEN BY MR. GABRIEL TO DISPUTE THE DISMISSAL?

• [35] Mr. Gabriel made no written submissions in relation to this factor. Mr. Tempini in his witness statement for CFT says "[Mr. Gabriel] did not take any action to dispute his dismissal". When I asked Mr. Gabriel if he took any action to dispute his dismissal, he raised conversations he had prior to his termination and also his requests for payment documents, neither of which can be described as "action to dispute a dismissal".

• [36] I am satisfied he did not take action to dispute his dismissal before he lodged his application in this matter. This counts against the finding of exceptional circumstances.

WHAT IS THE PREJUDICE TO CFT (INCLUDING PREJUDICE CAUSED BY THE DELAY)?

• [37] Mr. Moy for CFT conceded that it suffered no prejudice by reason of the delay. This factor is neutral to a consideration of whether to extend time.

• [38] Mr. Gabriel in his application states he believes he was dismissed because he exercised workplace rights, including:
  • Asking for pay records.
  • Raising safety concerns as a supervisor.
  • Submitting a Workcover claim after he was injured at work.

• [39] CFT in its Form F8A denies Mr. Gabriel's termination included an active reason that he had exercised workplace rights. It says Mr. Gabriel was terminated after a disciplinary process because of "repeated serious incidents" including physical threats, verbal violence and verbal threats.

• [40] There is a conflict of evidence surrounding the circumstances of Mr. Gabriel's termination. The merits turn on contested facts which require a full hearing. It is not appropriate for the Commission to resolve contested facts in an extension of time application. This factor is therefore neutral in a consideration of exceptional circumstances.

FAIRNESS AS BETWEEN MR. GABRIEL AND OTHER PERSONS IN A SIMILAR POSITION

• [41] No arguments were made by either party about this factor. This factor is therefore neutral to an extension of time being granted.

IS THE COMMISSION SATISFIED THAT THERE ARE EXCEPTIONAL CIRCUMSTANCES, TAKING INTO ACCOUNT THE MATTERS ABOVE?

Three factors against an extension of time being granted

• [42] Mr. Gabriel provides no good reason for the delay under s 366(2)(a), and he took no action to dispute his dismissal under s366(2)(b). These factors count against an extension of time being granted.

• [43] There is no prejudice to the CFT by reason of the delay under s 366(2)(c), the merits of the application rest on contested facts and are therefore neutral under s 366(2)(d), and no arguments were made on the fairness as between Mr. Gabriel and other persons in a like position under s 366(2)(e). It follows three of the factors are neutral to a consideration of exceptional circumstances.

• [44] Two factors count against an extension of time being made and three are neutral considerations. Therefore, on balance, taking into account all the factors in s 366(2), I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.[6]

[1] Singh v BSG 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.

[2] Section 366(2)(b).

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

[6] PR795017.

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