s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - whether to extend time for making of application - exceptional circumstances not found - application dismissed

• [1] This decision concerns an application by Ms Tahlia Lyttle regarding her general protections application to the Fair Work Commission under section 365 of the Fair Work Act 2009.

• [2] Ms Lyttle's employment with Eva Copper Mine Pty Ltd (ECM) was terminated with effect from 13 June 2025. The general protections application the subject of this decision was lodged on 14 July 2025.

• [3] Section 366(1) of the Act states that a general protections application 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 4 July 2025. The Application was therefore filed 10 days outside the 21-day period. Ms Lyttle asks the Commission to grant a further period for the Application to be made under s 366(2). ECM opposes this request.

• [4] I issued directions on 10 September 2025, for the parties to file their material. Additionally, the parties consented to the Commission's phone call recording of Ms Lyttle's conversation with the Commission on 9 July 2025 (the Recording) being provided to the Commissioner and parties for consideration and further submissions relating to the recording were sought and provided. The parties consented to the matter being determined on the papers.

• [5] For reasons outlined below, I have decided not to grant Ms Lyttle an extension of time.

• [6] Ms Lyttle was dismissed on 13 June 2025. As such, the final day for her to lodge her application in time was 4 July 2025.
• [7] On 2 July 2025, Ms Lyttle lodged an Unfair Dismissal application (UD application).

• [8] On 3 July 2025, Ms Lyttle subsequently lodged a general protections application involving dismissal (first GP application).

• [9] On 9 July 2025, Ms Lyttle contacted the Commission via telephone. During the call, Ms Lyttle stated the following:

"I was just calling because I've submitted an F2 form, unfair dismissal, but then I decided to do a general form, which is F8. So, I was just wondering how I cancel the F2?"

How do I cancel the F2, because I was told that you can only lodge one."

I was told that I can only submit one, so I wanted to cancel the F2"

• [10] During the discussion, Ms Lyttle explained that after first lodging a UD application she had obtained legal advice suggesting she should instead pursue a GP application, stating:

"Yeah, it's purely because I was eligible for the free legal advice, and when I had that, he told me to go with the general protections."

• [11] The registry officer explained to Ms Lyttle that as she filed her GP application before discontinuing her UD application, her GP application filed on 3 July 2025 was not valid. It was further explained that Ms Lyttle would need to discontinue both of her current applications and then refile a fresh GP application. Ms Lyttle was advised that any application she now filed would be out of time, and she would therefore need to seek and be granted an extension of time.

• [12] Ms Lyttle subsequently sought to verbally discontinue both her UD and GP applications.

• [13] The registry officer confirmed that whilst Ms Lyttle may not receive email confirmation of the discontinuances immediately, both applications were now discontinued:

"you giving me that verbal authority means they are discontinued as of right now, which means even if you submit a claim five minutes from now, it will be a new valid claim."

• [14] Ms Lyttle lodged her second GP application on 14 July 2025, some 5 days later.

• [15] The Act allows the Commission to extend the period within which a general protections 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]

• [16] Section 366(2) 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 like position.

• [17] 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 this application.

• [18] The Act does not specify what reason for the 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]

• [19] Ms Lyttle's explanation of the delay is twofold. Firstly, Ms Lyttle argues that her first GP application was filed within time, and it was the Commission's process, which required her to discontinue and refile her application, that resulted in the second GP application being filed out of time.

• [20] Ms Lyttle says that it was not until 9 July 2025, when she called to "follow up" on her applications, that she was advised that she could not file the two applications at the same time.

• [21] Ms Lyttle acknowledges that she was advised that she would need to discontinue both existing matters and re-lodge an F8, and accepts that the registry officer took her verbal authority to discontinue her previous applications. However, Ms Lyttle asserts that the Commission did not action the discontinuance until Friday 11 July 2025.[4]

• [22] Ms Lyttle says that she understands the 21 days is counted in calendar days and that weekends do not extend it except where the final day falls on a weekend or public holiday. However, the short interval from 11 to 14 July 2025 arose because she awaited the Commission's confirmation that both her previous applications were dismissed per her phone conversation with Client Services on 9 July 2025 and because she was unwell during this period.

• [23] Ms Lyttle submits that the recording of her conversations with the registry corroborates her view that the consolidation was a "Commission-driven procedural step".

• [24] Secondly, Ms Lyttle says that she was medically unfit to complete re-lodgement over the weekend of 12 to 13 July 2025, and therefore lodged her F8 application on 14 July 2025 as soon as she was able.

• [25] Ms Lyttle states that she was under medical care and unwell from 8 to 14 July 2025. Ms Lyttle attended a GP telehealth appointment on 8 July 2025 with the Chermside Medical Centre, and was a patient at the Royal Brisbane and Women's Hospital (RBWH) for an MRI on 10 July 2025. Ms Lyttle provided a medical certificate from RBWH which confirmed that she would be incapacitated to work that same day.

• [26] ECM submit that it was clear from the Recording that Ms Lyttle was advised by registry staff that her application had been cancelled, and that she would need to file a new F8.

• [27] They say Ms Lyttle has failed to provide an adequate explanation for the delay between giving her verbal authorisation to discontinue both of her existing applications on 9 July 2025 and the filing of her new application on 14 July 2025, some 5 days later.

• [28] Noting Ms Lyttle's argument that she was waiting for confirmation of the discontinuances, they say this was received on 11 July 2025, and does not adequately explain why she waited another three days before filing her new application on 14 July 2025.

• [29] To the extent Ms Lyttle seeks to suggest that her actions were influenced by the advice provided by the registry staff, ECM say it was ultimately her own judgment to request the discontinuance of her earlier applications and to delay until 14 July 2025 before lodging the amended second GP application.

• [30] ECM suggest that the Recording shows Ms Lyttle already knew about the "single application" requirement before the call, because she stated: "I was told that you can only lodge one". It is also noted, that at the commencement of the call, Ms Lyttle mentions having received free legal advice (likely via the Workplace Advice Service) before the call. This, they say, contradicts her claim she first learned about this during the 9 July call, and confirms that it was Ms Lyttle who requested discontinuance, and as such, was not a "Commission-driven procedural step".

• [31] In response to Ms Lyttle's submission regarding the impact of her medical condition, ECM note that the appointments referred to by Ms Lyttle (8 July telehealth and the 10 July MRI) occurred before 11 July, and as such do not provide an adequate explanation for the delay from 11 to 14 July 2025.

• [32] Notwithstanding the above, ECM suggest that Ms Lyttle has provided no evidence to suggest that during this period, she was incapacitated to the extent she could not lodge an electronic application.

• [33] ECM submit that the Commission has routinely held that illness without objective medical evidence of incapacitation, illness or injury should not be considered to meet the threshold of exceptional circumstances. My attention was drawn to Victor Blanco v White Bathroom [2021] FWC 4694 in which Deputy President Easton set out a summary of the authorities relevant to medical incapacity in the context of an application for an extension of time.

• [34] In that decision, the Commission emphasised that if a medical condition is relied upon, there must be supporting evidence showing that it had a material impact on an applicant's capacity to lodge their application within the statutory timeframe. An applicant's self-assessment of incapacity is unlikely to be sufficient.

• [35] It is clear that Ms Lyttle erred in filing two applications. Her UD application was filed on 2 July 2025, and a GP application on 3 July 2025 (first GP application).

• [36] Question 1.6 of the F8 Form that Ms Lyttle completed when lodging her first GP Application provides the following information:

We may not be able to deal with your application if you have made another claim about your dismissal to us or somewhere else (e.g. the Australian Human Rights Commission). If you answer yes to this question, we may ask you to decide which of your applications you want to proceed with. You can find out more about multiple applications on our website."

• [37] Ms Lyttle provided the following with respect to the Unfair dismissal application:

I submitted a Form F2 (Unfair Dismissal) application earlier, however, upon further review and advice, I intend to withdraw that application and proceed solely with this Form F8 (General Protections Dismissal). This F8 application reflects the nature of my claim more accurately, particularly in relation to adverse action and protected workplace rights."

• [38] It is clear from the above, and Ms Lyttle's submissions that she has received legal advice before filing the GP application. Viewed objectively, I consider it most likely that Ms Lyttle was aware that her GP application would not be validly made until she discontinued her UD application. Had Ms Lyttle taken the step to discontinue her UD application before filing her GP application, the GP application would have been filed in time, however I have seen no evidence to suggest that she took any steps whatsoever to do this until her 9 July 2025 call to the Commission.

• [39] Notwithstanding the above, a review of the recording indicates that the registry officer confirmed the steps that would now be required for her to file a valid GP application. Ms Lyttle was clearly advised during the phone conversation that both applications needed to be discontinued so that a fresh application could be filed. Ms Lyttle gave her verbal authorisation and was advised that both matters were now discontinued. Furthermore, she was advised that if she filed a new application now, it would be valid.

• [40] Relevantly, Ms Lyttle confirmed she had copies of her previous applications, to which the second officer noted that Ms Lyttle should therefore have all the information she would need to "put across" into her new F8 application.

• [41] I agree with ECM's contention that the most significant period of time in this matter is the period between when Ms Lyttle says she became aware of the need to discontinue the original applications and when she actually filed this application. It is clear from the recording that Ms Lyttle was made aware on the 9 July 2025 that her existing applications had now been discontinued and that she could subsequently file her new application. She was also advised the new application would be out of time and that she would need to seek an extension of time. In these circumstances, it is difficult to understand why Ms Lyttle didn't immediately re-file her second F8 on 9 July 2025, noting she could have utilised the contents of her first F8 which she had access to.

• [42] I agree with ECM's contention that having received this general procedural guidance from the Commission's staff, it was ultimately Ms Lyttle's own judgment to request the discontinuance of her earlier applications and to delay until 14 July 2025 before lodging the amended second GP application. I have not been convinced that the procedural steps cited by Ms Lyttle provide a reasonable explanation for the delay.

• [43] I note Ms Lyttle's submissions regarding the impact of her medical condition on her capacity to lodge her application, however I agree with ECM's contention that the medical appointments relied upon occurred before the date Ms Lyttle says she received email confirmation of the discontinuance.

• [44] While I accept that Ms Lyttle may have may been ill during some or all of the period of the delay, absent any medical evidence detailing the impact the illness had on her capacity to lodge the Application, I do not accept the explanation as preventing her from lodging the Application on time or at a time earlier than the date on which this application was lodged, particularly noting all that was required was the refiling of an already drafted application.

• [45] In all of the circumstances, I have not been convinced that Ms Lyttle has provided a satisfactory explanation of the delay. This weighs against a conclusion that there are exceptional circumstances.

• [46] Action taken by the employee to contest the dismissal, other than lodging an application, may favour granting an extension of time.[5] This factor is primarily concerned with actions taken directly with ECM, rather than matters which are outside of ECM's control, such as the filing of applications in the commission.

• [47] Notwithstanding this, ECM acknowledge that Ms Lyttle does dispute her dismissal and has done so by lodging the UD application, first GP application and second GP application. I have treated this as a neutral consideration

• [48] ECM accepts that it has not suffered any significant prejudice as a result of the delay in making the GP application, however, the mere absence of prejudice is not a factor that would point in favour of the granting of an extension of time. I consider this to be a neutral consideration.

• [49] 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 whilst Ms Lyttle contends that the decision to dismiss her was made for a prohibited reason, ECM contend that Ms Lyttle was dismissed following a show cause process for reasons unrelated to those raised by Ms Lyttle. As such, if this matter was to proceed, it would likely turn on contested points of fact and as such, it is not possible to make any firm or detailed assessment of the merits. Ms Lyttle has a prima facie case, to which ECM raises an apparent defence. 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 like position

• [50] The Commission must apply consistent standards when deciding whether to grant an extension of time. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. However, cases of this kind will generally turn on their own facts. I am not aware of any persons or cases that are relevant to the question of fairness as between Ms Lyttle and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

• [51] Having regard to the matters I am required to take into account under s 366(2), and all of the matters raised by Ms Lyttle, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

• [52] 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). Accordingly, this general protection application must be dismissed.

• [53] The application is dismissed. I order as such.

[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]

[4] P.8 of the DCB - Statement of Tahlia Lyttle.

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

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