Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - application filed out of time

• [1] On 29 March 2025, at 4.21am, Ms Tammy Gill (the Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving dismissal under Part 3-1 of the FW Act. The Applicant alleges that her former employer, East Arnhem Regional Council (the Respondent) contravened various provisions of Part 3-1 of the FW Act by dismissing her on 7 March 2025.

• [2] On 14 April 2025, the Respondent filed its Form F8A - Response to a general protections application involving dismissal, raising a jurisdictional objection on the grounds that the application was lodged 1 day outside the 21-day statutory timeframe.

• [3] This jurisdictional objection is determined on the papers.

• [4] Section 366 of the FW Act provides the timeframe for filing a s.365 application:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

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

(e) fairness as between the person and other persons in a like position."

• [5] The meaning of 'exceptional circumstances' was considered by a Ful Bench of the Commission in Nulty v Blue Star Group Pty Ltd,[1] where it was held:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance."

• [6] I now turn to the consideration of the matters set out in s.366(2) of the FW Act to determine whether an extension of time should be granted.

• [7] In her initial jurisdictional submissions, the Applicant annexed and relied on a copy of a filing email which appeared to show that the Applicant had filed her application to the Commission within time, at 11.21am on Friday, 28 March 2025. She also annexed and relied on a copy of an automatic reply from the Commission's system - "Ticket# 90296436 - We have received your email" - which appeared to show that her application had been received by the Commission within time, at 11.23am on Friday, 28 March 2025. The Applicant submitted that she had, therefore, filed her application within the statutory timeframe.

• [8] In light of these submissions, a review of the Commission's system was undertaken to determine why her application had been received and marked as 'out of time' by the Commission. The review of the Commission's system confirmed, however, that the Applicant's earliest filing email had been received by the Commission at 4.21am on Saturday, 29 March 2025, with the automatic reply - "Ticket# 90296436 - We have received your email" - having issued from the Commission's system at 4.23am on Saturday, 29 March 2025.

• [9] I wrote to the Applicant on Friday, 6 June 2025, granting her until the close of business on Tuesday, 10 June 2025 to provide an explanation as to why her materials contained emails with different time and date stamps to those displayed in the Commission's system. It was noted in that correspondence that the email copies filed by the Applicant may have been sent/received from a time zone outside of Australia.

• [10] The Applicant wrote to my Chambers on 10 June 2025 providing an explanation as follows:

"Upon reviewing your comments about time zones, I discovered that my laptop was set to the incorrect time zone (Brazilian). I was unaware of this at the time, as I was working late at night and aimed to submit my application before midnight on 28 March 2025.

After your email, I checked my sent emails via the BigPond webmail interface, which I hoped to display the correct time. It showed that my application was delivered at 3:21am on Saturday, 29 March 2025. However, my Outlook, which relied on my laptop's incorrect time, indicated the email was sent at 11:21. Due to my setup - using a TV as a monitor with a partially obscured clock - I believed I was submitting the application before the deadline of midnight on the 28th. I was only viewing 11.21 on my screen. I was not viewing AM or PM, and is the only explanation as to why I was of the belief that I was sending it before midnight when attempting to send it with the attachments, and after having difficulty, proceeded to send the application without the attachments, and wrote what I wrote in the email stating;

I am lodging a General protections application involving dismissal.

I have been attempting to send the application for many hours, but due to the volume of

attachments I can only send the application form at present, as I will need to attend to the

attachments to have them resized and able to be sent via email as one email.

During the 21-day period, I was unwell (as supported by my medical certificates and workers compensation status) and struggled to complete the application for the majority of the 21 day time allowance. I was always mindful and respectful of the 21-day deadline and believed I had submitted my application within the required timeframe.

On 3 April, I received correspondence from Fair Work Australia about some attachments being locked, but there was no mention that my application was out of time. I had no reason to believe that my application was late.

At all times, I intended to comply fully with the Fair Work Commission's requirements..."

• [11] In its initial jurisdictional submissions, the Respondent noted that the onus is on the Applicant to satisfy whether exceptional circumstances existed for the Commission to grant an extension to file the application. The Respondent submitted that the Applicant has failed to meet these circumstances.

• [12] In its further submissions in response to the Applicant's explanation relating to the time and date stamps of her materials, the Respondent submitted that:-

"There is no such thing as a "Brazilian" time zone.

There are four standard time zones across the country of Brazil ranging from 11.30 - 13.30 hours behind Australian Central Standard Time which was the time zone in Groote Eylandt where the Applicant was living when she submitted her application.

The Applicant's submission does not accord with the four hour discrepancy in submitting her application as outlined by the Applicant in her email below.

It is also noted that none of the Applicant's other emails sent in March 2025 from the same email address, contained in the Applicant's materials filed on 7 May 2025 appear to be sent from a different time zone."

• [13] The Brazilian time zone excuse appears fanciful and does not make sense, but even if it did make sense, the excuse would not provide the Applicant with a satisfactory reason for her late application. The simple fact is that the Applicant filed her material more than 4 hours late with the excuse that she was unwell and on workers compensation for some of the 21-day period. This excuse is also not a valid reason. The Applicant claims that she knew of the 21-day time frame but, for reasons unknown to the Commission, failed to file her application on time.

• [14] I find that the Applicant did not have a satisfactory reason for the delay of her application. A mistake or a miscalculation on behalf of an applicant is not an exceptional circumstance. I find that this weighs against granting an extension of time for filing.

Section 366(2)(b) - action taken to dispute dismissal

• [15] The Applicant submitted that she took various steps between 3 and 18 March 2025, including contacting the Director of the Respondent in relation to raising a formal grievance, and writing to the CEO querying her dismissal. The Applicant submitted that during this period, she had also made a workers' compensation claim in relation to a workplace injury.

• [16] The Applicant submitted that on 27 March 2025, she received an email from QBE Insurer, stating that her workers' compensation matter had been deferred for 56 days and that in the meantime her employer was under instruction to pay her an income pending a finalised investigation outcome with QBE. The Applicant submitted that following receipt of this letter, she called Ms Kaylene Rynne, HR, and:

"...asked for some clarification around the position I was in, ie - was I still employed under the QBE letter stating my employer was to continue providing income or was I awaiting the outcome of the grievance claim, or was I terminated."

"I was not sure if I should follow through with my FWA Application(s) of a General Protections application involving dismissal, or and Unfair Termination as I have completed my full probationary period and is written as such in the Termination Letter. Ms Rynn (sic) informed me that I was not able to apply for an Unfair Dismissal application due to my dismissal alleging I failed my probation. This then confirmed that I was under not (sic) investigation process and awaiting an outcome that I was informed by the Director was going to occur, and I had been hoodwinked into believing matters were going to be dealt appropriately with and in accordance to the EARC policies and procedures."

• [18] The Applicant submitted that, in accordance with the above, she took actions at every level to dispute the dismissal prior to lodging her Commission application.

• [19] The Respondent submitted that the Applicant did not dispute the dismissal within the 21-day timeframe, but did correspond with the Respondent during that timeframe around her repatriation allowances.

• [20] It would appear that the Applicant was focussed more on her workers compensation claim rather than a remedy for her termination. I find that this weighs against granting an extension of time for filing.

Section 366(2)(c) - prejudice to the employer

• [21] The Applicant submitted that she did not believe her application being lodged some 4 hours late would have caused any prejudice to the Employer. The Applicant submitted that it has not caused a loss of evidence, witness availability, or inability to adequately prepare a defence.

• [22] The Respondent did not make any submissions in relation to prejudice.

• [23] I find this to be a neutral consideration.

Section 366(2)(d) - merits of the application

• [24] The Applicant submitted that there are 'substantial merits' to her s.365 application. Notably, the Applicant submitted that throughout her probation period, the Respondent failed to properly address her workplace right to lodge a grievance. Further, the Applicant submitted that she was dismissed via text message while on a period of sick leave, without any evidence or explanation being provided to her for the dismissal.

• [25] The Respondent submitted that the application has low chances of success on the basis that there is significant documentary evidence to show that the Applicant was dismissed as a result of an unfavourable performance review within her probation period and not in response to her exercising a workplace right.

• [26] While the FW Act requires me to take into account the merits of the application in considering whether to extend time, in the matter of Kornicki v Telstra-Network Technology Group (Kornicki),[2] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

• [27] For the purposes of determining whether to grant an extension of time the Commission "should not embark on a detailed consideration of the substantive case".[3]

• [28] I am satisfied that there will be contested submissions in a merits-based hearing. As a result, I adopt the obiter in Kornicki.

• [29] For these reasons, I find that the merits of the application are a neutral consideration

Section 366(2)(e) - fairness between the person and others in a like position

• [30] The Applicant made further submissions as to fairness in relation to the merits of her application, however, did not address this criteria in relation to her application for an extension of time.

• [31] The Respondent did not make any submissions in relation to fairness.

• [32] I find this to be a neutral consideration.

• [33] The Applicant has not provided a satisfactory reason for her late application. On the basis that the Applicant was residing in the Northern Territory at the time, her application was due by 1.30 am AEDT on 29 March 2025. The Applicant missed this time by less than 3 hours, however, the FW Act does not state that applicants have 21 days and 3 hours to make their applications, but a strict 21 days.

• [34] As a result, after taking into account the obiter in Nulty and the voluminous jurisprudence on this issue, I find that the Applicant has not provided any evidence of an exceptional circumstance to warrant an extension of time to lodge her application.

• [35] The jurisdictional objection of the Respondent is upheld.

• [36] The substantive application is dismissed.

[1] [2011] FWAFB 975.

[2] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[3] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

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