Fair Work Act 2009

s.365 - General protections

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

• [1] This decision concerns an application by Ms Spiroula Mammis (Applicant) for relief under the general protections provisions involving dismissal pursuant to s 365 of the Fair Work Act 2009 (Act).

• [2] Ms Mammis' employment with Southern Restaurants (Vic) Pty Ltd (Respondent) was terminated with effect on 11 July 2025. The general protections application was lodged on August 2nd.

• [3] Section 366(1) of the Act states that an application such as this 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 1 August 2025. The application was therefore filed 1 day outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made. The Respondent opposes this request.

• [4] The Act allows the Commission to extend the period within which a General Protections involving dismissal 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]

• [5] The requirement that there be exceptional circumstances before time can be extended under s 366(3) 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.

• [6] Section 366(3) 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.

• [7] 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 now consider these matters in the context of the Application.

• [8] 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.[3]

• [9] The Applicant cited several matters as reasons for the delay in lodging the application. These reasons include the impact of the termination on her emotional and mental health which in turn impacted her capacity to process and respond to what had occurred. The organisational challenges of organising her nephews' baptism to become a godmother for the first time. And the difficulty understanding her rights and which application to make to the FWC without any prior experience dealing with the Commission or being able to afford legal advice.

• [10] Ms Mammis provided oral evidence and supporting material to the Commission to substantiate her submissions. I accept Ms Mammis has provided honest evidence to the Commission. I also accept that Ms Mammis has been significantly impacted by her termination and that she believes she has been treated unfairly.

• [11] Critically however, I do not accept that Ms Mammis has presented any evidence of "exceptional circumstances" of why she did not file her application with the Commission within the required 21-day period. Ms Mammis has not provided any evidence of unusual, out of the ordinary course or exceptional circumstances that she was confronted with to establish why she did not make his application to the Commission within 21 days of her resignation.

• [12] The essence of Ms Mammis' submissions is the "exceptional circumstances exist in her case, because of her difficulties in dealing with the impact of the termination, her challenges organising her nephew's baptism, and difficulty understanding which application to make to the Commission, absent prior knowledge or legal advice. She identifies that her application is also only "slightly late", being less than 1 day.

• [13] It is well established by this Commission that ignorance or a lack of awareness of one's rights is not usually an acceptable of reason for delay. This factor weighs further against their being a valid reason for delay.

• [14] I have considered Ms Mammis' references to her emotional and mental health because of the impact of her termination. Ms Mammis has not provided any additional evidence to support these submissions and takes them no further. While I accept the impact of being dismissed has been significant for Ms Mammis, there is nothing exceptional, unusual or uncommon about her circumstances before the Commission to distinguish her case from many other employees negatively impacted by having their employment terminated. It is also well established that employees facing dismissal will be confronted with the distress and pressure of losing their job and income. I do not accept this factor supports a conclusion of there being a valid reason for the delay.

• [15] I have also considered Ms Mammis references to the challenges and significance of becoming a godmother for the first time and organising her nephew's baptism. While I accept this is an important event, on its own, there is nothing exceptional about Ms Mammis getting on with her life and participating in family events like many others facing similar circumstances.

• [16] Considering all the above, I do not accept that Ms Mammis has presented evidence of "exceptional circumstances" of why she did not file her application with the Commission within the required 21-day period. Nor do I accept there is anything "exceptional, "out of ordinary course" or uncommon about her circumstances that distinguishes her case from many others placed in challenging situations.

• [17] In reaching this conclusion I have had regard to the fact the application is just 1 day late. Ms Mammis suggests this short period of delay counts in her favour. On its own however, this factor does not take her explanation further. There must be an acceptable reason for the delay.

• [18] This factor weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

• [19] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

• [20] Ms Mammis evidence is that she took steps to seek legal advice, do her own research and attempt to understand which application she should make prior to making her application. She accepts these were the only steps she has taken to dispute her dismissal.

• [21] The respondent submits Ms Mammis has taken no action to dispute her dismissal prior to making her application.

• [22] I have considered these submissions. Absent any additional evidence to support her position, I am unable to conclude Ms Mammis has taken anything other than the usual steps of preparing to make an application to the FWC.

• [23] This factor weighs against the granting of an extension of time.

• [24] Ms Mammis submits there is no prejudice arising for the respondent should her application be permitted to proceed. The Respondent submits that allowing the application to proceed despite its objection will prejudice the employer. I have considered these submissions, and I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of an 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 and consider this a neutral factor.

• [25] 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 Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.

• [26] The Applicant has a prima facie case. In short, her position is she has been singled out, unfairly performance managed and ultimately dismissed because of concerns she raised about bullying and victimisation. The Respondent disputes these contentions and claims the application is without merit. On the material before me, it is not possible to make any firm or detailed assessment of the merits. Accordingly, I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

• [27] 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 an unfair dismissal application. However, cases of this kind will generally turn on their own facts. In the present case, Ms Mammis has not identified any other person in a similar position that needs to be considered. The respondent submits no such persons exist and that this is not a relevant factor.

• [28] This being the case, considering the above submissions I conclude this to be a neutral consideration.

• [29] Having regard to the matters I am required to take into account under s 366(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. 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(3). Accordingly, the application must be dismissed.

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

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

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