s.365 - General protections

Application to deal with contraventions involving dismissal - application made outside of statutory timeframe - no exceptional circumstances - application dismissed

• [1] On 8 November 2025 at 12:01am, Ms Tara Memery made an application to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal.

• [2] Ms Memery was dismissed from her employment with Healthscope Operations Pty Ltd (the Respondent) on 16 October 2025. To be within the 21-day time limit to bring a s.365 application, the application needed to have been made by 6 November 2025.

(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."

• [4] The application has been made two days out of time. Ms Memery seeks an extension of time within which to make her application.

• [5] A hearing by Microsoft Teams was convened on 12 December 2025. Ms Memery appeared for herself. The Respondent was represented by Ms Samantha Gidley, Senior Workplace Relations Manager, and Ms Catherine Cunningham, Director of Finance, Sunnybank Hospital. I have had regard to the statutory declaration of Mr Adrian de Rouw, a friend of Ms Memery.

• [6] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd,[1] where the Full Bench said:

"[10] It is convenient to deal first with the meaning of the expression 'exceptional circumstances' in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression 'exceptional circumstances' in s.394(3) and held:

'[5] The word 'exceptional' is relevantly defined in The Macquarie Dictionary as "formatting an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.'

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression 'exceptional circumstances' was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

'23. I am of opinion that the expression "exceptional circumstances" requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:

"Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances."

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CL at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25 And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:

"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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" in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.'

[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." [footnotes omitted].

• [7] For exceptional circumstances to arise, as contemplated by s.366(2) of the Act, it is not necessary that the applicant for the extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances exist.

• [8] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[2]

• [9] The test of 'exceptional circumstances' establishes a 'high hurdle' for an application seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[3] A decision whether to extend time under s.366(2) involves the exercise of a discretion.[4]

• [10] The reason for the delay in lodging an application is a factor that must be considered. The Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[5] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, though it is ultimately a question of degree and insight.[6]

• [11] A reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[7] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[8]

• [12] Ms Memery gave evidence that having been dismissed on 16 October 2025, she began working on making an application to the Commission, which included an annexure. She stated that it took up a large part of the days between being dismissed and filing her application. On the evidence before the Commission, by 4 November 2025, the annexure was 56 pages long. It was incredibly detailed and cited a minimum of 12 case authorities. On Ms Memery's account, it cites 40 adverse actions taken against her by the Respondent. Ms Memery stated during the hearing that she used artificial intelligence to assist in the preparation of her material.

• [13] On 22 October 2025, Ms Memery visited the Commission's webpage and made and completed the Workplace Advice Service request form. She received the following immediate response:

"Thank you for submitting your Workplace Advice Service Request form. We will be in touch within 5 business days about whether or not we can progress your request.

Please remember you only have 21 days from the date of dismissal to lodge an unfair dismissal or general protections dismissal application. If you need help faster than that, other legal help is available

If you have any questions, you can email us at was@fwc.gov.au, or call us on 1300 799 675."

• [14] On 27 October 2025, Ms Memery had a preliminary intake call with the Workplace Advice Service. Ms Memery's evidence is that she understood that she would need to file her application by no later than 11:59pm on 6 November 2025 to meet the 21-day timeline prescribed in the Act.

• [15] On 2 November 2025, Ms Memery received an email from the Workplace Advice Service reminding her of an appointment she had made with them to take place 10:00am - 10:45am on 5 November 2025 by telephone. The email included the following:

"A request for legal help from the Workplace Advice Service is not an application to the Commission. Some applications, like dismissal applications, have strict 21-day time limits. If you were dismissed and are nearing the 21-day time limit, you should lodge your application to the Commission as soon as possible.

If you need more information about lodging a Fair Work Commission application, please see www.fwc.gov.auor call our helpline on 1300 799 675".

• [16] Ms Memery's first witness statement to the Commission stated that on the evening of 5 November 2025, at 10:08pm, she had a telephone call with a lawyer from the Workplace Advice Service which lasted for 1 hour and 16 minutes. During the hearing, she stated that was an error, and the telephone call occurred in the morning of 5 November 2025.

• [17] She stated that during that phone call, the lawyer informed her - unequivocally - that the lodgement deadline was 11:59pm on 7 November 2025 and not 6 November 2025. The lawyer directed Ms Memery to page 159 of the Commission's General Protections Handbook. Ms Memery has expressly waived legal professional privilege over the advice she said she was given by the lawyer from Workplace Advice Service.

• [18] Following Ms Memery waiving legal professional privilege, I sought a written witness statement from the lawyer who provided advice to Ms Memery on 5 November 2025. On 10 December 2025 a written witness statement was provided by that lawyer, who noted that she recalled speaking with Ms Memery and provided file notes of their discussion. The file notes indicate that Ms Memery was informed of the 21-day limitation date and was also informed that day one commenced the day after the dismissal, recorded as 16 October 2025.

• [19] The lawyer stated that she could not recall if a specific date by which to file the application was provided to Ms Memery and said that it is not her usual practice to provide a specific date, but to advise of the relevant timeframes.

• [20] During the hearing, Ms Memery stated that following the telephone discussion with the lawyer she typed into Google, "21 days from the 17th October 2025". Following the hearing, I too typed the same question into Google and the answer produced is 7 November 2025.

• [21] On the evidence before me, I am satisfied that the lawyer who provided advice to Ms Memery during the lengthy telephone call on 5 November 2025 did not advise Ms Memery that the deadline was 7 November 2025. I conclude she informed her of the 21-day timeframe, and the first day of that is one day following the dismissal. I am fortified in my conclusion, as there would be no reason for Ms Memery to type the above question into Google if she had received an unequivocal date from the solicitor as she asserts. Ms Memery has not produced any contemporaneous notes made by her during the conversation where it is asserted that the lawyer informed her the date in which to make her application was 7 November 2025.

• [22] Ms Memery confirmed during the hearing that she did not consult a calendar to count the days from 17 October 2025, with 17 October 2025 being day one.

• [23] Ms Memery visited the home of Mr de Rouw on 4 November 2025. She had printed off her draft application form and 56-page annexure for Mr De Rouw to review. Her evidence is that she was nervous about her workplace advice meeting the next day and wondered if she had prepared enough.

• [24] After receiving legal advice on 5 November 2025, Ms Memery spent further time refining the annexure to attach to her application. She estimates that she spent a further five hours refining the document. By the time it was later filed, it was 78 pages long.

• [25] On 7 November 2025, the day Ms Memery considered was the last day by which she could file her claim, she went to work between 9:00am and 4:30pm. She then attended Mr de Rouw's home from 6:00pm. She brought her laptop with her. Mr De Rouw offered her food which she declined. She was still working on attachments to her application.

• [26] She stated that during the evening she was experiencing anxiety. She set an alarm clock on her phone to 11:30pm and stated that she intended to 'put tools down' and no longer work on the documents after 11:30pm, following which she would submit the application. At 11:30pm, she broke down crying. By 11:45pm she had some water and had calmed down enough to continue making the application.

• [27] She had made a client portal account on the Commission's website some days earlier. Late in the evening of 7 November 2025, she was cutting and pasting answers from a Word document of the application form she had earlier saved into the online application. By 11:59pm this was complete, but the website had been freezing on her. At 11:59pm she used Mr de Rouw's credit card to make the payment. It did not register as received by the Commission until one minute after midnight, at 12:01am on 8 November 2025.

• [28] In evidence given during the hearing, Ms Memery conceded that she should have put her application in straight away. She said she has now gone to a calendar and concedes it is easy to calculate the 21 days. She stated that she takes full responsibility for not filing it within 21 days.

• [29] For the reasons stated by me at [21], I do not consider that there has been any legal representative error. I am satisfied that it was Ms Memery's error in her conclusion that she had until 7 November 2025 to bring her application. Ms Memery had been informed multiple times of the 21-day time limit and that it commences the day after the dismissal.

• [30] If I am wrong about that conclusion and if it were necessary to consider the issue regarding pre-and post-midnight on 7 and 8 November 2025, I do not consider that the reasons for Ms Memery filing the application beyond midnight are supportive of an extension of time being granted. Ms Memery worked diligently on an extraordinarily large document over approximately three weeks. In the two days before she filed her application, she spent five more hours on an annexure to attach to her application, bringing it to 78 pages in length. She waited until one minute before midnight to input credit card details for payment.

• [31] Ms Memery simply could have emailed her application to the Commission within time. The Commission's website provides instructions on how to do this; one does not need to use the Commission's portal to make an application, and thousands of applications are made to the Commission by email each year. The Commission's website states the following:

Submit your form by no later than 11:59 pm on the 21st day after your dismissal took effect.

Lodge your form online. To get started click on Apply online, follow the prompts to log in or set up an account. Alternatively email your completed form to lodge@fwc.gov.au. You will not receive an automatic reply when you lodge.

You can also post or deliver your form to the Commission office near you."

• [32] The reasons for the delay provided are not, in my view, reasons that are supportive of an extension of time being granted.

Any action taken by the person to dispute the dismissal - s.366(2)(b)

• [33] Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant's employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[9]

• [34] Ms Memery was upset about her dismissal and immediately contacted her recruiter, a healthcare recruitment agency. On 17 October 2025, she sent a three-page letter to her recruiter. She noted that in writing only to the recruiter, she did not wish to create further correspondence or dispute. She stated in the email, "I simply feel it necessary to respond to the stated reasons for termination to preserve my professional integrity, even if just in an email to you."

• [35] Ms Memery stated that when she was informed of her dismissal, she requested the contact details for HR so she could escalate her concerns. She stated that the contact details were not provided to her.

• [36] On 2 November 2025, Ms Memery emailed the Respondent's payroll department to inquire about her final pay slip. She did not make any mention of her intention to dispute her dismissal.

• [37] Ms Memery stated that she made multiple unsuccessful attempts to obtain HR contact information. There is no evidence of that. Ms Memery had the email details of payroll for the Respondent and could have requested any correspondence be forwarded to a relevant HR officer.

• [38] While Ms Memery informed her recruiter of her dissatisfaction in being dismissed, I consider she did no more than request HR details from her employer at the time of dismissal. Ms Memery spent dozens of hours completing the annexure to her application but did not, on the evidence before the Commission, seek a contact person within the Respondent to inform of her dissatisfaction with the dismissal.

• [39] Ms Memery took action to dispute the dismissal, but none of that included informing the Respondent other than at the time of the dismissal. This is not, in my view, supportive of an extension of time being granted.

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

• [40] I do not consider there would be any prejudice to the Respondent caused by the delay. This is a neutral factor in the overall assessment of whether there are exceptional circumstances to warrant an extension of time being granted.

• [41] It is well established that "it will not be appropriate for the Commission to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)."[10]

• [42] On the information before the Commission, I conclude that the merits of the application are a neutral consideration in relation to whether I should extend time for the application to be made.

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

• [43] The criterion of "fairness as between the person and other persons in a similar position" was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm,[11] where it was said:

"...cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission."

• [44] I am not satisfied that the criterion of fairness between Ms Memery and other persons in a similar position weigh strongly in favour of either party. As such, I consider it a neutral consideration.

• [45] Taking into consideration the matters I am required to take into account under s.366(2) of the Act, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

• [46] 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, the application must be dismissed. An order [PR795262] will be issued with this decision.

[1] [2011] FWAFB 975.

[2] Smith v Canning Division of General Practice [2009] AIRC 959.

[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[4] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

[5] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36].

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 at [35]- [45].

[7] Ibid; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288.

[8] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]- [33]; and Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

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

[10] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [36].

[11] [2015] FWC 8885 at [29].

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