s 365 - General protections

Application to deal with contraventions involving dismissal - application made out of time - no exceptional circumstances - no extension granted.

• [1] Ms Tanya Dhiman has applied under s 365 of the Fair Work Act 2009 (Cth) alleging that her dismissal by Sky Global Network Pty Ltd was in contravention of Part 3-1 of the Act. Ms Dhiman says her dismissal took effect on Monday 20 January 2025. Her application was filed on Wednesday 12 February 2025.

• [2] Section 366 of the Act provides that a s 365 application must be made within 21 days after the dismissal took effect; or, pursuant to s 366(1)(b), within such further period as the Commission allows under s 366(2). In Ms Dhiman's case, the period of 21 days ended at midnight on Monday 10 February 2025. Her application is two days out of time.

• [3] For Ms Dhiman's case to proceed, she requires an extension of time under s 366(2).

• [4] I listed the matter for a case management conference for Tuesday 11 March 2025. Ms Dhiman did not attend and did not respond to my Chambers' phone calls. After the case management conference, my Chambers sent an email explaining to Ms Dhiman that she was required to file material addressing s 366(2) of the Act given that her application was filed outside of the 21-day deadline. Alternatively, if she no longer wished to proceed with her application, she could discontinue it.

• [5] Ms Dhiman did not respond to that email. Ms Dhiman also did not respond to a follow up email sent on Thursday 13 March 2025, which explained that if she did not provide any materials addressing s 366 and whether the Commission can be satisfied that there are exceptional circumstances justifying an extension for filing her application, I would proceed to determine the matter based on the material before me.

• [6] As of the date of this decision, Ms Dhiman has not responded to the calls, emails or written directions from the Commission.

• [7] Under s 366(1) and (2) of the Act, the Commission may allow a further period for an application made under s 365 to be made if the Commission is satisfied that there are exceptional circumstances.

• [8] It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique not 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 are of no particular significance, when taken together can be considered exceptional.[2]

• [9] In determining whether there are exceptional circumstances, I must take into account the criteria in s 366(2):

(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 similar position.

• [10] Each of the above matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[3]

• [11] In this matter, Ms Dhiman's Form F8 has not provided any information addressing the criteria above or why her application was filed late. As Ms Dhiman did not file any other information or evidence, I cannot make any positive findings on the criteria in s 366(2).

• [12] This means that I cannot be satisfied that there are exceptional circumstances. It follows that I cannot grant an extension of time. I order that Ms Dhiman's application be dismissed.

[1] Nulty v Blue Star Group Ltd [2011] FWAFB 975 [13].

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

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