s.365 - Application to deal with contraventions involving dismissal

Application to deal with a dismissal dispute filed out of time - circumstances not exceptional - application dismissed.

• [1] This decision concerns an application by Mr Stuart Russ (Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).

• [2] In the Application, Mr Russ states his employment with Brighton Fish Tank Pty Ltd (Respondent) commenced on 16 December 2024 and that his dismissal took effect from 28 April 2025. The Application was made on 26 May 2025.

• [3] Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute 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 19 May 2025. Therefore, the Application was made 7 days outside the 21-day period. The Applicant asks the Commission to allow a further period for the Application to be made.

• [4] The matter was allocated to my Chambers to determine whether an extension of time should be granted under s.366(2). I conducted a hearing on 25 July 2025. The Applicant was represented by Mr S. Balzer, the Applicant's partner. There was no appearance by the Respondent, nor did the Respondent file any material in response to the Application.

• [5] For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.366(2).

• [6] The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute 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:

(a) the reason for the delay;

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

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

(d) the merits of the application; and

(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.

• [10] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[3]

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

• [12] The FW 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 an applicant's favour, however all of the circumstances must be considered.[4]

• [13] The Applicant submitted two reasons for the delay:

(a) Pursuing an alleged underpayment of wages and entitlements; and

(b) Lack of knowledge of the applicable time limit.

Pursuing an alleged underpayment of wages and entitlements

• [14] The primary reason for the delay was that the Applicant was pursuing an alleged underpayment of wages and entitlements. I do not accept this is an acceptable or reasonable explanation for the delay. It is well established that delaying the filing of an unfair dismissal application or general protections application while pursuing an alleged underpayment of wages or entitlements is not an acceptable or reasonable explanation for the delay.[5] As stated by the Full Bench in Coles Supermarkets Australia Pty Ltd v Alexander Tapier, there is no reason why the Applicant could not have made the Application while simultaneously pursuing the alleged underpayment of wages and entitlements.

• [15] The Applicant submitted that he and Mr Balzer were not aware of the time limit and had they been aware, the Application would have been made earlier. It is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the filing of general protections or unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[6]

• [16] A simple internet search would have pointed the Applicant to the Commission's website which has a range of resources to assist self-represented litigants including information about who can apply and the process for lodging an application.

• [17] I do not accept that lack of knowledge of unfair dismissal laws constitutes an acceptable or reasonable explanation for the delay.

• [18] For the reasons set out above, I do not consider the reasons submitted by the Applicant, whether considered individually or together, constitute an acceptable or reasonable explanation for the delay.

• [19] The absence of an acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

s.366(2)(b) - Action taken to dispute the dismissal

• [20] Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[7]

• [21] In Hunter Valley Developments Pty Ltd v Cohen[8], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[9]

• [22] In the material before me, there are copies of text messages exchanged between the Applicant and the Respondent in which the Respondent contends the Applicant resigned and the Applicant challenges that contention, and requests written notice of termination.

• [23] Having regard to that material, I am satisfied that the Applicant has taken action to dispute the dismissal. I consider this circumstance weighs in favour of a conclusion that there are exceptional circumstances.

• [24] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.

• [25] The FW Act requires me to take into account the merits of the Application in considering whether to extend time. The Applicant contends that he was dismissed after making a complaint about other employees. Although the Respondent did not file any material or otherwise participate in the proceedings, the material filed by the Applicant contains copies of text messages from the Respondent in which the Respondent contends the Applicant resigned.

• [26] Having regard to that material, 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. Accordingly, it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.

s.366(2)(e) - Fairness as between the person and other persons in a similar position

• [27] The Applicant submitted that this matter should be treated in a similar manner to comparable cases.

• [28] In Perry v Rio Tinto Shipping Pty Ltd,[10] the Full Bench noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[11]

• [29] Although the Commissions is not bound by the principle of stare decisis, as referred to above[12] there have been several decisions where the Commission has refused an extension of time in circumstances where the applicant has delayed the filing of an unfair dismissal or general protections application while pursuing an alleged underpayment of wages or entitlements. Adopting a position of fairness between the Applicant and other persons in a similar position, this factor does not weigh in favour of a conclusion that there are exceptional circumstances.

• [30] The test of 'exceptional circumstances' establishes a 'high hurdle'. Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances.

• [31] 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).

• [32] Accordingly, the Application must be dismissed. An order to that effect will be issued with this decision.

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

[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

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

[5] Coles Supermarkets Australia Pty Ltd v Alexander Tapier [2021] FWCFB 2559 at [25]; Mr Paul Perkins v Institute of Data [2025] FWC 1930 at [10]- [18]; Juan Latorre v Xpress Agi Hire Pty Ltd [2024] FWC 3371 at [23]- [24]; Jeffrey Graham v NSG Services Group Pty Ltd [2025] FWC 1052 at [18]- [19]; Francis Adu-Mensah v Assetlink Services Pty Limited [2025] FWC 958 at [13]- [15]; Andrew Roos v K'Gari Marine Services Pty Ltd, Karin Muh [2024] FWC 1918 at [38]; David Parker v Jake McMahon Hair [2023] FWC 3282 at [35]; Matthew Dakin v Farmgate MSU Pty Ltd [2022] FWC 1707 at [4]; Sxa Fang Chong v SSM International Pty Ltd [2022] FWC 2591 at [18]; Weijie Song v Hilltop Meats Pty Ltd [2022] FWC 3274 at [29]- [30]; Beau Paardekooper v Sherocon Pty Ltd [2022] FWC 3372 at [26]- [28].

[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[8] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.

[10] [2016] FWCFB 6963.

[12] See footnote 5.

Printed by authority of the Commonwealth Government Printer