s.365 - General protections

Application under s 365 - whether to extend time - application dismissed

• [1] Tej Sandhu has made an application under s 365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by the Department of Parliamentary Services (respondent) 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). Mr Sandhu's dismissal occurred on 13 February 2025. The 21-day period ended on 6 March 2025. The application was lodged on 9 March 2025. For the application to proceed, Mr Sandhu 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 factors in s 366(2)(a) to (e).

• [2] As to the reason for the delay (s 366(2)(a)), Mr Sandhu submitted that following his dismissal he experienced mental health problems which required him to seek medical attention from his general practitioner and for which he was put on a mental health plan. He said that he was assaulted and suffered post-traumatic stress disorder, and that this affected his ability to submit his claim within the 21-day period. Mr Sandhu also said that he is the sole carer for his two children and that this too constrained him from lodging his application within time. Mr Sandhu said that a further reason for the delay was the respondent's late reply to his queries about the reasons for his dismissal. I do not consider that these matters provide a good reason or reasons for the delay. I am not persuaded that Mr Sandu's mental health situation or his carer's responsibilities seriously impeded his ability to lodge his application on time. Further, there was no reason for Mr Sandhu to wait for the respondent's reply to his correspondence before lodging his application. Mr Sandhu also said that he did not have time to lodge his application but I do not accept this. The F8 application is a short, simple form. Mr Sandhu succeeded in lodging it within 24 days. In my assessment, there was no good reason why he could not have lodged it within 21 days. This weighs against an extension of time.

• [3] As to the other mandatory considerations, Mr Sandu took action to dispute the dismissal by emailing the respondent to question his termination (s 366(2)(b)). This weighs marginally in favour of an extension. I do not consider there to be any significant prejudice to the employer (s 366(2)(c)) nor do I consider that there are any matters that are relevant to fairness between Mr Sandhu and other persons in a like position (s 366(2)(e)). I consider these to be neutral factors.

• [4] As to the merits (s 366(2)(d)), Mr Sandhu contended that his dismissal was connected to his caring responsibilities. He said that he sought to work from home two days a week in order to take his children to school but that the respondent would not allow this. Mr Sandhu also suggested that his dismissal was connected to his temporary absence related to kidney stones. The respondent denied that the dismissal was related to these things. It said that it dismissed Mr Sandhu during his probationary period because it was dissatisfied with his performance, including his management style, his failure to provide feedback to staff, and his conduct in varying his start times and being absent without reason outside of the permitted working from home arrangements. Based on the information before me, I do not consider that Mr Sandhu has a strong case because the respondent's stated reasons for the dismissal, which have nothing to do with proscribed reasons, appear to be credible. Nevertheless, the merits would depend on findings made by a court after hearing the evidence. I will regard the merits as a neutral consideration.

• [5] 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. Consequently, there is no basis for the Commission to extend time. Mr Sandhu's general protections application is dismissed.

T. Dimitriadis for the Department of Parliamentary Services

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