Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] On 7 February 2025, Mr. Sukhraj Singh was dismissed from his employment with DAI STAFF Pty Ltd (DAI STAFF).

• [2] On 12 May 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 73 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 4 July 2025, I heard Mr. Singh's extension of time application by way of a determinative conference. Mr. Singh appeared and represented himself. DAI STAFF was represented by Ms. Mary Elias, Head of People.

• [5] For the following reasons, I do not grant an extension of time to Mr. Singh 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. Singh's dismissal took effect on 7 February 2025. It follows the final day for filing the application was 28 February 2025 and ended at midnight on that day.

• [10] Mr. Singh's application was filed at 9:04 PM (AEST) on 12 May 2025. It was made 73 days late. I therefore need to consider whether to make an order to extend the period to make the application.

• [11] 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. Singh to dispute the dismissal.

(c) prejudice to DAI STAFF (including prejudice caused by the delay).

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

• [12] Each of these matters must be considered in assessing whether there are exceptional circumstances.[3] I set out my consideration of each matter below.

• [13] 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.[4]

• [14] 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. Singh has not provided any reason for any part of the delay.[5]

• [15] Mr. Singh's reason for delay is that he made an "honest mistake" in filing a Form F2 which is an application for an unfair dismissal remedy instead of a Form F8, which is an application for a general protections remedy, as he had been "confused" by the Commission website.

The procedural history of the unfair dismissal proceeding and this proceeding

• [16] At the hearing, Mr. Singh confirmed he had visited the Commission's website page which provides all relevant application forms. He had thought he had completed the form to commence a general protections application where in fact he had commenced an unfair dismissal application. He described this error as an "honest mistake".

• [17] I have examined the Commission file in relation to the unfair dismissal proceeding. It reveals the following.

• Mr. Singh lodged a Form F2 application on 25 February 2025 indicating he was employed on 13 December 2024 and dismissed on 7 February 2025.

• Three days later, on 28 February 2025, the Commission sent correspondence suggesting Mr. Singh's employment may not have met the minimum employment period (MEP) for an unfair dismissal proceeding based on the information provided in the Form F2. During the hearing, my Associate provided a "share screen" of the 28 February letter. Mr. Singh confirmed the e-mail address on that letter was his e-mail address, but he did not recall receiving that letter.

• The Commission received an email from Mr. Singh on 3 March 2025 confirming the accuracy of the information in the Form F2. The Commission unsuccessfully attempted to contact Mr. Singh by telephone on 17 and 25 March 2025. The Commission subsequently sent an e-mail on 25 March 2025 raising the MEP issue again. On 28 March 2025, Mr. Singh replied advising of difficulty answering correspondence and requested guidance. On 2 April 2025, the Commission received a telephone call from DAI STAFF advising of delays in providing a response.

• A third e-mail regarding the MEP was sent to Mr. Singh on 2 May 2025. Mr. Singh replied on 7 May and again on 8 May 2025, confirming he intended to make a general protections application.

• [18] Four days after his effective discontinuance of the unfair dismissal proceeding, he filed a Form F8 application on 12 May 2025 at 9:04 PM to commence this proceeding.

• [19] 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. The question for consideration here is whether an "honest mistake" on the filing of a form in the Commission supports a finding that the overall circumstances, including the reason for the delay, are exceptional.

• [20] There is ample authority for the proposition that commencing the wrong form of application is not an exceptional circumstance. In Michelle Young v. Braziliant Pty Ltd,[6] Ms. Young's general protections application was filed 24 days late because she had commenced and discontinued two separate and consecutive unfair dismissal applications. She discontinued the second unfair dismissal application after receiving advice from a lawyer from the Workplace Advisory Service. Following that advice she filed a general protections application. In his decision, Commissioner Wilson described the argument Ms. Young had made on her reasons for delay:

[24] On Ms. Young's argument, the Commission should be satisfied that this application was made when it was since she was always endeavouring to make a general protections application; that she only obtained legal advice on the subject relatively late in the process; and that it should be accepted by the Commission that the late lodgement of this matter was merely correcting an earlier incorrect unfair dismissal application filing, made on 27 August 2018.

• [21] In the result Commissioner Wilson found (with emphasis added):

[29] The Commission has held that mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. It is also the case that it is not out of the ordinary course, or unusual, or special, or uncommon for a person to be acting on their own without advice, or to be called upon to make a choice about the form of action against a former employer. There is ample information available through the Commission's website and elsewhere that sets out the merits of the respective forms of application that may be made. Care should be taken by any person contemplating making an application after the end of their employment about which type of application may be made. The fact that a person insufficiently reads the available material and ends up making the wrong form of application is also not an exceptional circumstance.

• [22] The difference between the mistake of Ms. Young and the mistake of Mr. Singh is his claim that his mistake was inadvertent. He had not intended to file an unfair dismissal application. I do not consider this difference is material to the sufficiency of the mistake as a reason for delay. Like Ms. Young, Mr. Singh was endeavouring to make a general protections application and, as with Ms. Young, Mr. Singh argues he is "merely correcting an incorrect unfair dismissal application".

• [23] I adopt entirely the reasoning of Commissioner Wilson in paragraph [29] of Braziliant. The inadvertent mistake made by Mr. Singh cannot be regarded as exceptional. Mistakes in the filing of applications are a regular occurrence in the Commission. As was pointed out by Commissioner Wilson, it was incumbent on Mr. Singh to ensure he had filed the correct form. During the hearing, Mr. Singh reminded me that he had been before me previously on an earlier s 365 application. Given that he had successfully filed a s 365 application before it makes his failure to navigate the Commission website on this occasion less understandable.

• [24] The inadvertent mistake is an insufficient reason for the delay. This counts against an extension of time being granted.

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

• [25] I accept the filing of the unfair dismissal proceeding on 25 February 2025 was action by Mr. Singh to dispute his dismissal by DAI STAFF. In the conference, Ms. Elias conceded this point. This counts in favour of an extension of time being granted.

WHAT IS THE PREJUDICE TO DAI STAFF (INCLUDING PREJUDICE CAUSED BY THE DELAY_)?_

• [26] Ms. Elias conceded the 73 day delay did not cause DAI STAFF any prejudice, forensic or otherwise. The mere absence of prejudice is not in itself a matter that supports a conclusion of exceptional circumstances. This factor is neutral to in a consideration of whether to extend time.

• [27] In his application Mr. Singh claims the reasons DAI STAFF dismissed him included the following prohibited reasons:

• Workplace Rights (under ss 340, 341, and 343): "I asked multiple times for paid overtime, and they were not happy about it."
  • Race (under s 351): "Everyone in management was Australian and I am from India and they didn't like it so this is a reason too."
  • Marital Status (under s 351): "I told them I was single and living alone and they were not impressed by this."

• [28] In his oral submissions, Mr. Singh did not elaborate on his claims that his race or his marital status were part of the reasons for his dismissal. He did elaborate on his claim that he was dismissed for exercising his workplace rights. He stated that during his employment he had made a series of complaints concerning: the lack of training, failure to pay overtime, the roadworthiness of the vehicle he drove and the legality of his payment period.

• [29] Ms. Elias conceded during his employment Mr. Singh was always making complaints. She vehemently denied the dismissal of Mr. Singh was based on his race or marital status. In relation to the exercise of his workplace rights, Ms. Elias submitted the reasons for his dismissal were solely based on performance. Mr. Singh was continually counselled about his failure to meet the delivery per day performance indicators. The dismissal was solely motivated by his continued failure to do so.

• [30] As Mr. Singh made no submissions regarding his claims of dismissal on the basis of his race or marital status, it is difficult for me to assess the merits of those claims.

• [31] On his claims, he was dismissed for exercising his workplace rights to make complaints, the merits turn on contested facts. It is not appropriate for the Commission to resolve contested facts in an extension of time application. In the absence of a full hearing, it is not possible to make any firm assessment of the merits. This factor is therefore neutral to a consideration of whether to extend time.

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

• [32] Ms. Elias made no submissions on this factor. When I asked Mr. Singh for submissions he stated: "If someone was in my position they would do the same. He will if he was dismissed like this make an application."

• [33] Neither party made arguments of sufficient weight to count either in favour or against the granting of an extension of time. 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?

• Reasons for Delay: The reason for delay given by Mr. Singh does not provide an adequate explanation. An honest mistake in the completion of application forms in the Commission is a common occurrence. Following the decision in Braziliant, the mistake is an insufficient reason for the delay. Therefore, this factor counts against an extension of time under s 366(2)(a).
• Action to dispute the dismissal: Mr. Singh took action to dispute his dismissal by commencing an unfair dismissal proceeding on 25 February 2025. This factor counts in favour of an extension of time being granted under s 366(2)(b).

• [34] The considerations in s 366(2)(c),(d) and (e) are neutral factors in an assessment of exceptional circumstances for the purposes of s 366(2):

• Prejudice to the employer: DAI STAFF made no submissions that it would suffer prejudice by reason of the delay.
• Merits: On the untested and limited evidence before me, I am not able to assess the merits as a factor in determining whether I should grant an extension of time.
• Fairness between persons: No submissions of sufficient weight were made on this factor to count in favour or against the granting of an extension.

• [35] I conclude the lack of an adequate reason for the delay counts against an extension of time being granted under s 366(2)(a). The action taken to dispute the dismissal count in favour of an extension of time being granted under s 366(2)(b). All the other factors in s 366(2)(c), (d), (e) are neutral.

• [36] One factor counts in favour of an extension of time being granted and one against. All three of the other factors are neutral considerations. Therefore, on balance, taking into account all the factors in s 366(2), and also the relatively long seventy-six day delay in the making of the application, I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.[7]

[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] [2018] FWC 6694.

[7] PR788971.

Printed by authority of the Commonwealth Government Printer