s.365 - General protections

Application to deal with contraventions involving dismissal - extension of time.

[1] On 12 November 2025, Ms Domazetovski (the Applicant) made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a contravention involving dismissal. The Respondents to the application are Mr John Lev and The Galev Family Trust trading as Rent-A-Bomb Tullamarine, of which Mr Lev is the Director (the Respondents).

[2] Ms Domazetovski commenced employment with the Respondent on 21 May 2025. Ms Domazetovski says she was dismissed from her role as a casual retail sales assistant on 13 October 2025 and the dismissal took effect on that day. The Respondent says she was dismissed on 10 October 2025. Having considered the evidence and submissions I am satisfied that Ms Domazetovski was notified of termination on 13 October 2025.

[3] Section 366 of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect, or within such a further period as the Commission allows. If I was to accept that Ms Domazetovski's employment was terminated on 13 October 2025 the application was still made nine days after the 21-day time limit, I am therefore required to determine whether a further period of time to lodge the application should be allowed.

[4] For the reasons set out below, I have concluded that I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act.

• [5] Section 366(2) of the Act allows the Commission to extend the period within which an application under s.365 must be made only if it is satisfied that there are "exceptional circumstances". These are circumstances that are "out of the ordinary course, or unusual, or special, or uncommon" but that "need not be unique, or unprecedented, or very rare".[1] The test of "exceptional circumstances" in relation to granting an extension of time to lodge an application under s.365 establishes a "high hurdle".[2] A decision whether to extend time under s.366(2) involves an exercise of discretion.[3] The longer an Applicant delays making an application the more difficult it will generally be to overcome that hurdle.[4]

• [6] In deciding whether there are exceptional circumstances to enliven the discretion to extend time, I am required to consider and give appropriate weight to each of the matters outlined in s.366(2).[5] My consideration of each matter in the context of Ms Domazetovski's application for an extension of time is set out below.

Reason for the delay -s.366(2)(a)

• [7] For this consideration there must be an acceptable or reasonable explanation for the delay.[6] If an applicant is able to provide a credible explanation for the entirety of the delay this will weigh more heavily towards a finding of exceptional circumstances. Conversely, if an applicant fails to provide a credible explanation for any part of the delay, which will tend to weigh against a finding of exceptional circumstances.[7]

[8] Ms Domazetovski submits that delay was due to exceptional circumstances. Ms Domazetovski alleges that she suffered psychological trauma from the Respondent rendering her mentally unable to prepare the application form within 21 days of her dismissal. Additionally, that the complexity of the claim and that she spent time engaging with the Fair Work Ombudsman and WorkSafe added to the reason for delay. Ms Domazetovski says that the drafting of her affidavit and consolidation of her 18 supporting annexures could not reasonably be completed within the 21-day period.

[9] Whilst I accept the events that took place during and from the time of Ms Domazetovski's dismissal and the events involving her personal circumstances may have been upsetting, there is no evidence that Ms Domazetovski suffered a debilitating medical condition that would prohibit her from filing her application on time. Further, I observe that Ms Domazetovski's submission is inconsistent with her actions in that her condition did not prevented her from engaging with the Fair Work Ombudsman or WorkSafe. I do not consider the distress caused by her termination of employment to be out of the ordinary nor a reasonable explanation for the significant delay in filing her application

[10] Further, whilst I accept Ms Domazetovski likely spent considerable time on her application, the Commission receives a great number of applications with comprehensive supporting documents within the statutory time frame. The only requirements when filing a general protections application with the Commission is to complete the Form F8 and pay the application fee.

[11] I am not satisfied that the matters Ms Domazetovski relies upon as reasons for the delay in making her application are exceptional circumstances when considered in isolation or together to provide a reasonable explanation for the whole delay. This weighs against the granting of an extension of time.

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

• [12] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time.[8]

[13] Ms Domazetovski submits other than making this application she took multiple unsuccessful steps to resolve the dispute. The steps taken include:

• - contacting Mr Lev to resolve the alleged underpayments of wages and superannuation;
• - lodging a formal complaint with the Fair Work Ombudsman to dispute the contraventions and seek recovery of wages; and
• - formally notifying the franchisor, Rent-A-Bomb Head Office to detail the alleged non-compliance

[14] None of these actions are disputing the dismissal.

[15] In the circumstances, this weighs against a finding of exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay) - s.366(2)(c)

• [16] Prejudice to the employer will go against the granting of an extension of time.[9]

[17] Ms Domazetovski submits that as the matter was raised with the Fair Work Ombudsman within the 21-day period, and therefore the Respondent had prior knowledge of the claims there would be no prejudice to the Respondent if the extension of time was granted.

[18] The Respondent did not provide any relevant submissions.

[19] Neither party contends there is prejudice to the Respondent caused by the delay. The mere absence of prejudice is not necessarily a factor that would point in favour of the granting of an extension of time. However, in all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were to be granted and consider this criterion to be neutral.

Merits of the application - s.366(2)(d)

[20] Ms Domazetovski contends that she was dismissed by the Respondent in contravention of ss.340, 348, 351 and 352 of the Act. Additionally, she raises a number of contraventions under ss.45, 324, 535 and 536 of the Act. Ms Domazetovski claims she was subject to systematic wage theft, denial of permanent entitlements, malicious adverse action concerning Work Health Safety breaches and underpayment of superannuation.

[21] The Respondent submits that Ms Domazetovski was dismissed due to ongoing performance issues, inappropriate use of resources and a business restructure reducing staffing needs.

[22] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result, the Commission should not embark on a detailed consideration of the substantive application. Accordingly, I have not done so, and I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I find this criterion to be neutral.

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

[23] This consideration is concerned with fairness in matters of a similar kind and the importance of the application of consistent principles in cases that are either currently before the Commission or that have been decided in the past.

[24] Ms Domazetovski made submission that did not identify any relevant matters previously decided by this Commission. She made no submission relevant to other persons in similar position that would be otherwise relevant to this consideration.

[25] Applications for an extension of time generally turn of their own facts. In the circumstances of this case, I consider that the question of fairness between Ms Domazetovski and other persons in a like situation to be a neutral consideration.

• [26] In establishing whether exceptional circumstances exist, the Commission must take into account the factors listed in s.366(2) of the Act. The expression "exceptional circumstances" while not specifically defined in the Act has been accepted in this Commission to be circumstances which need not be unique, unprecedented, or very rare; but cannot be circumstances that are regular, routine, or normally encountered.[10]

[27] A conclusion that there are exceptional circumstances, taking into account the statutory considerations, is required before the discretion to extend time can be exercised. I have had regard to all of the circumstances including the legislative considerations. I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

• [28] An order[11] to that effect will be published separately to this decision.

[1] Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [13].

[2] [2014] FWCFB 2288 at [21].

[3] Halls v McCardle and Ors [2014] FCCA 316.

[4] [2014] FWCFB 2288 at [21].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [18].

[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [45].

[8] [2018] FWCFB 901 at [45].

[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67IR 298, 299-300.

[10] Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [25]; citing R v Kelly [1999] UKHL 4; [2000] 1 QB 198, 208; cited in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [13].

[11] PR769757.

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