Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - application made outside of 21-day time limit - no exceptional circumstances - application dismissed.

• [1] On 13 May 2025, Tatiana Ondrik (the Applicant) lodged an application (the Application) pursuant to s 365 of the Fair Work Act 2009 (Cth) (the Act) in which she asserts that the termination of her employment on 24 April 2024 by Matt Porter Pty Ltd (the First Respondent) and Mr Matt Porter (the Second Respondent) contravened her workplace rights.

• [2] Section 366(1) of the Act states that a general protections dismissal dispute application must be made 'within 21 days after the dismissal took effect', or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 366(2) of the Act. The period of 21 days ended at midnight on 15 May 2024. The Application was therefore filed 363 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s 366(2) of the FW Act.

• [3] Following allocation of the matter to my Chambers on 21 July 2025, Directions were issued to the parties for the filing of material in relation to the jurisdictional issue of the Application being made out of time. Both parties filed material in advance of the hearing listed for 21 August 2025. At the hearing, the Applicant appeared and gave evidence while Mr Matt Porter appeared for the Respondent and called Ms Sally Moreland, the Respondent's Bookkeeper, to give evidence.

• [4] The Respondent operates a hair salon in South Melbourne. The Applicant commenced employment with the Respondent in 2009 but was dismissed on 2 February 2011.[1] She was then re-employed by the Respondent on 11 May 2011. From 3 March 2023 until her dismissal, the Applicant was unable to work due to a medical condition[2] for which she made a workers compensation claim that, after being initially rejected, was ultimately accepted by a medical board that reviewed her claim.

• [5] On 15 September 2023, the Respondent wrote to the Applicant[3] and advised that it was currently reviewing her employment because it had formed the view that the injury that had prevented her returning to her role was not a temporary injury. It further stated to the Applicant that on the information before it, the Respondent had formed the view that she did not have the capacity to perform the inherent requirements of the role in which she was employed. Further information was sought regarding the Applicant's current and ongoing capacity. The Applicant was requested to attend an Independent Medical Examiner (IME) on 28 September 2023.

• [6] The Applicant was dismissed by the Respondent on 24 April 2024[4] (the Termination Letter) due to her inability to perform the inherent requirements of her role as a Senior Colourist. At the time of the dismissal, the Respondent calculated the Applicant's accrued Long Service Leave (LSL) entitlement as 226 hours (11.3 weeks) less 118 hours LSL that she had taken during her employment, resulting in a net balance of 108 hours LSL.[5] The Applicant was actually paid out 129 hours LSL in addition to her accrued annual leave entitlement of 75 hours.

• [7] The payment[6] of the Applicant's accrued leave entitlements was made over five pay runs between 8 July and 29 September 2024. The reason for the delayed payment was because the Applicant requested and the Respondent agreed that the payout of the accrued leave entitlements would be made after the Applicant's workers compensation payments ceased in July 2024. The total paid to the Applicant was 204.76 hours of LSL and annual leave. The payslips did not however correctly separate and identify the respective LSL and annual leave amounts.

• [8] On 21 October 2024, the Applicant emailed[7] Ms Sally Moreland, the Respondent's Bookkeeper, querying the calculation of her final LSL payout. Ms Moreland responded on 23 October 2024 clarifying that there had been an error in the LSL calculation communicated to the Applicant in February 2023. This according to Ms Moreland's email was corrected in April 2023[8] when the Respondent became aware that the software used had been set up incorrectly and had applied higher incorrect leave accruals for staff.

• [9] Not satisfied with Ms Moreland's response, the Applicant states she contacted 'Fairwork' on or about 1 December 2024[9] and was told they could not help her. She says she also contacted the Victorian Wage Inspectorate on or about 7 December 2024[10] who after reviewing her case also advised the Applicant that it could not help her and that she would need to go to Court if she wished to pursue the matter. Unable to afford the legal costs associated with pursuing her LSL entitlements in court, the Applicant filed the Application on 13 May 2025. On 3 June 2025, the Respondent received correspondence[11] from the Victorian Wage Inspectorate advising the outcome of its investigation into the Applicant's LSL complaint. It advised that the investigation would be closed on the basis that the evidence did not establish an offence under the LSL Act.

• [10] Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute if an application is made under s 365. For an application to be validly made under section 365, it (the application) must be made within 21 days after the dismissal took effect or such further period as the Commission allows pursuant to section 366 of the Act.

• [11] The Act allows the Commission to extend the period within which a general protections dismissal dispute application can 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.[12] 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.[13]

• [12] The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [13] 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.

• [14] 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 turn to consider these matters in the context of the Application.

• [15] For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 15 May 2024. The delay is the period commencing immediately after that time until 13 May 2025, although circumstances arising prior to that day may be relevant to the reason for the delay.[14]

• [16] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[15] An applicant does not need to provide a reason for the entire period of the delay although 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. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay.[16]

• [17] As can be seen from the chronology above, the Applicant became aware of her dismissal on the date it took effect on 24 April 2024. It was not until she received the payment of her accrued LSL entitlements that she queried the Respondent's calculation of her entitlement in October 2024 and then pursued the matter with the Victorian Wage Inspectorate. It was only once her LSL complaints were found to be unsubstantiated that she filed the Application. It is plainly apparent that the Applicant is aggrieved at what she believes to be an incorrect calculation of her LSL entitlements on termination of her employment.

• [18] The Applicant's pursuit of the LSL entitlement complaint, firstly with the Respondent and then with the Victorian Wage Inspectorate does not properly explain why she failed to make the Application at an earlier time than she did. The status of her employment and the reasons for her dismissal stand separately to her LSL entitlement. A dispute over the latter, though perhaps linked in the Applicant's mind to the Application, did not stand as a barrier to the Applicant making the Application at an earlier time than she did. I am not satisfied the Applicant has provided a reasonable explanation for the delay in filing the Application. This weighs against a finding of exceptional circumstances.

• [19] I accept that the Applicant has sought to challenge the calculation of her LSL entitlement paid out following her dismissal. That does not constitute action taken to dispute her dismissal. It is not apparent that the Applicant took any other action to contest her dismissal after it took effect on 24 April 2024, other than lodging the Application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

• [20] The Application was filed 363 days outside of the 21-day period. The Respondent is a small business and has already expended time and resources dealing with the Applicant's LSL complaint through the Victorian Wage Inspectorate which I note has now closed its file on that complaint. To grant an extension would in these circumstances cause significant prejudice to the Respondent, particularly so when the Application appears directed to the resolution of the Applicant's LSL complaint rather than her dismissal. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

• [21] The Act requires me to take into account the merits of the Application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[17] it 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."

• [22] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case"[18] for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.

• [23] The Applicant contends that she was dismissed for having raised a complaint regarding her LSL entitlement. By her own admission however, the Applicant did not formally raise the matter of her LSL entitlement until after her dismissal. She also accepts that the reason for her dismissal was her physical incapacity and inability to perform the inherent requirements of the role for which she was employed. In these circumstances, the merits of the Application do not tell in favour of a finding of exceptional circumstances

Fairness as between the person and other persons in a similar position

• [24] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.

• [25] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

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

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) of the Act. Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.

[1] Exhibit R1, Letter to Tatiana Ondrik, dated 8 February 2011, titled "Re: Hoxton Hair - amount owing to you.

[2] Exhibit R4, Certificates of Capacity.

[3] Exhibit A8, Letter to Applicant from Respondent, dated 15 September 2023, titled 'Capacity to perform inherent requirements of role'.

[4] Exhibit R3, Termination of Employment letter, dated 24 April 2024.

[5] Exhibit R7, Long Service Leave Transactions from 1 July 2011 to 28 April 2023.

[6] Exhibit R8, Payslips for period from 8 July 2024 to 29 September 2024.

[7] Exhibit R9, Email exchange between Tatiana Ondrik and Sally Moreland, dated 18-23 October 2023, titled 'Payment missing'.

[8] Exhibit R11, Email exchange between Sally Moreland and Elisha Huke, dated 20-23 April 2023.

[9] Exhibit A6, Fair Work Ombudsman Enquiry report.

[10] Exhibit A4, Wage Inspectorate Victoria.

[11] Exhibit R12, Letter from Victorian Wage Inspectorate, dated 3 June 2025, titled 'Outcome - Long Service Leave Complaint - [Matt Porter Pty Ltd]'.

[12] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[14] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

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

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

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

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