Tasmyn Higgs [2026] FWC 798 (11 March 2026)

s.365 - Application to deal with contraventions involving dismissal

Application made under s 365 - extension of time - application dismissed

• [1] Ms Tasmyn Higgs has made an application under s 365 of the Fair Work Act 2009 in which she alleges that she was dismissed by her employer in contravention of Part 3-1 of the Act. Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2). Ms Higgs was advised of her dismissal on 4 November. Ms Higgs worked her two weeks' notice period and her last day of employment was 18 November 2025, this is the date the dismissal took effect.[1] The 21-day period ended 9 December 2025 August 2025 (see s 40A of the Act, and s 36 of the Acts Interpretation Act 1901 as in force on 25 June 2009). The application was lodged on 12 December 2025. For the application to proceed, Ms Higgs requires an extension of time. The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in s 366(2)(a) to (e).

[2] As to the reason for the delay (s 366(2)(a)), Ms Higgs submitted that at the time of her dismissal, her capacity was significantly limited as she was experiencing a significant flare-up of a chronic back injury. Additionally, she says that she was focussed on urgently trying to secure alternative employment. She says that during the 21-day period, her focus was directed towards managing her health, securing alternative employment and maintaining continuity for her clients. Ms Higgs says that as soon as her condition became manageable, and her immediate employment situation stabilised, she prepared and lodged her application without delay.

[3] I acknowledge that Ms Higgs' chronic back injury would have been difficult and painful, however I have been provided with no evidence to suggest that it rendered her incapable of filing her application in time. I also acknowledge that seeking alternate employment placed demands on her time, but this is by no means a rare, unusual or unexpected result of being dismissed. I do not accept that these matters either individually or collectively prevented or seriously impeded the possibility of timely lodgement of the F8 application form. In my assessment, the reasons for delay weigh against a conclusion that there are exceptional circumstances in this case.

[4] As to the other mandatory considerations, I accept that Ms Higgs took actions to dispute her dismissal prior to it taking effect, however I have seen no evidence to suggest that Ms Higgs made any attempts to dispute the dismissal after it took effect (s 366(2)(b)). This weighs neutrally. I do not consider there to be any prejudice to the employer associated with the relatively short delay in this case (s 366(2)(c)), nor do I consider that there are any matters that are relevant to fairness between Ms Higgs and other persons in a like position (s 366(2)(e)). I consider these to be neutral factors.

[5] As to the merits (s 366(2)(d)), Ms Higgs submitted her dismissal was unfair, which does not of itself speak to any contravention of Part 3-1. However, Ms Higgs' substantive application contends that she exercised a workplace right by seeking discussions about her dismissal after being terminated. Again, this does not speak to a contravention of Part 3-1. Ms Higgs also alleges the decision to dismiss her was influenced by her sexual orientation, her ADHD and her back injury. All of these matters would depend on findings made by a court after hearing the evidence. I regard the merits as a neutral consideration.

[6] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s 366(2), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is dismissed.

[1] Ayub v NSW Trains [2016] FWCFB 5500 [49].

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