s.365 - General protections

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

• [1] Thomas Wiggins (Applicant) has made an application (General Protections Application) under s.365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by FB3G Pty Ltd (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 Fair Work Commission (Commission) allows under s 366(2).

• [2] Mr Wiggins commenced employment with the Respondent on 12 December 2024 as a casual employee[1] and was dismissed on Thursday 3 July 2025.[2] The 21-day period ended on Thursday 24 July 2025. The General Protections Application was lodged on 5 August 2025, being a delay of 12 days. For the General Protections Application to proceed, Mr Wiggins 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).

• [3] The Commission's records indicate the Applicant filed an unfair dismissal application on 4 July 2025 (Unfair Dismissal Application) and discontinued the Unfair Dismissal Application on 5 August 2025.

Section 366(2)(a) - reason for the delay

• [4] As to the reason for the delay (s 366(2)(a)), Mr Wiggins said:

• • the delay arose out of inexperience, a lack of legal guidance, and an honest misunderstanding following an initial phone call with the Commission which led him to believe he was eligible to make a claim for unfair dismissal;[3]
• • he originally filed the Unfair Dismissal Application acting on advice from a staff member of the Commission during a phone call on 3 July 2025 in which he was asked a series of eligibility questions and was told he was eligible to make an unfair dismissal claim;[4]
• • between 25 July 2025 and 6 August 2025, he conducted research and formed a view that a general protections claim may be more appropriate;[5]
• • he was not aware that his case fell more appropriately under the general protections framework and once he realised this and formed an understanding that casual employees have stronger protections under the general protections framework, he immediately took steps to discontinue his unfair dismissal claim and make a general protections claim;[6]
• • he was not legally represented, and this was his first time in dealing with a matter like this.[7]

• • The Commission provides general, not legal advice and clearly outlines the limits of the assistance it can offer via its website.[8]
• • The Applicant had access to the internet and publicly available resources such as the Commission's website to determine whether it was an unfair dismissal application or general protections application he wished to lodge.[9]
• • Ignorance of statutory deadlines is not an acceptable excuse.[10]

• [6] I reject Mr Wiggins' suggestion that the delay in lodgement was caused by the Commission. Persons who have been dismissed are commonly faced with a decision about which type of claim to bring and it seems the Applicant has arrived at his own view that a general protections claim was a better fit for his circumstances than an unfair dismissal claim but formed this view late. It is not entirely clear why the Applicant formed this view and the Respondent's Form F3 response to the Unfair Dismissal Application did not raise any jurisdictional objections.

• [7] Inexperience and a lack of legal representation are factors confronting many parties who are involved in Commission proceedings and are not reasonable explanations for a delay in making an application.

• [8] The reasons put forward by the Applicant do not constitute acceptable reasons for the delay and on assessment, the reason for delay weighs against a conclusion that there are exceptional circumstances in this case.

Section 366(2)(b) - any action taken to dispute the dismissal

• [9] The Respondent was put on notice by the Applicant that he was dissatisfied with his dismissal shortly after it had been communicated and the Applicant took action to dispute the dismissal by making the Unfair Dismissal Application a short time after his dismissal. This weighs in favour of a finding of exceptional circumstances.

Section 366(2)(c) - prejudice to the employer (including prejudice caused by the delay)

• [10] The Applicant submitted that the Respondent would suffer no real prejudice from the delay as it has had sufficient opportunity to prepare, respond, and participate in proceedings, has all necessary documentation and is represented by legal counsel.[11]

• [11] The Respondent noted that after a conciliation date was set in respect of the Applicant's Unfair Dismissal Application and the Respondent filed its response, the Applicant withdrew the Unfair Dismissal Application.[12] The Respondent submitted it engaged with the original Unfair Dismissal Application, submitted a timely response and was fully prepared to participate in the conciliation of the Unfair Dismissal Application scheduled for 8 August 2025, which was the proper forum for the Applicant's case to be heard and for both parties to engage in a resolution process.[13]

• [12] The Respondent submitted that as a result of the Applicant's decision to alter the course of the proceedings, it has suffered significant prejudice in engaging legal representation on two occasions and submitting two separate responses to the Commission, resulting in unnecessary duplication and increased legal costs.[14] The Respondent submitted that these additional burdens were entirely outside of its control and could have been avoided had the original process proceeded.[15]

• [13] I accept that the Respondent has and will suffer some prejudice in responding to two applications concerning the dismissal in circumstances where it has already been required to file a response to the Unfair Dismissal Application and was prepared to participate in the Commission's processes concerning that application in good faith. This weighs against a finding in favour of the Applicant.

Section 366(2)(d) - merits of the application

• [14] As to the merits (s 366(2)(d)), Mr Wiggins submitted:

• on 3 July 2025 he received an email stating he had been removed from the roster due to a staffing restructure without warning or prior consultation;
• following this email, he emailed human resources about the reasons for his dismissal but was not given a clear or consistent explanation;

• • the termination was said to be part of a restructure but his role still exists and is currently being performed by others;[17]

• other casual employees remained employed in the same role;

• • another employee was re-hired after complaining, indicating the restructure justification is questionable;[18]

• he believes that he was dismissed because he exercised a right to inquire about his employment, question his dismissal and seek transparency;
• this triggered an adverse reaction from the Respondent, who shut down all communication and removed him from his employment;
• there was no procedural fairness, no performance issues raised and no operational reason given to justify his dismissal while other remained employed;
• he was denied the opportunity to respond or be consulted as required by clause 9 of the Restaurant Industry Award 2020.

• [15] The Respondent provided the following account of events:

• On or about 3 July 2025 an email was sent to the Applicant to notify him that the business was restructuring and which stated words to the effect of:

"As part of a recent review of our staffing structure, we've made the decision to change how we allocate shifts. Unfortunately, this means we will no longer be able to offer you any further shifts moving forward. Thank you for your time, effort, and contribution during your time with us, it has been genuinely appreciated, and we wish you all the very best in your future endeavours".

• The Applicant responded with words to the effect of:

"Could you please provide a clear and detailed explanation for why my role has been terminated as part of this "staffing structure review"? Transparency in this matter would be greatly appreciated, as it's only fair to understand the basis for such a significant decision."

"We understand your concerns and appreciate the opportunity to clarify the recent decision regarding your employment. As mentioned, we've undertaken a staffing restructure to ensure sustainability and consistency within our operations. This involved shifting the majority of our available hours to full-time employees to meet the evolving needs of the business. As a result, we no longer have the casual shift availability to offer you ongoing work. This decision was not a reflection of your performance, which we value and appreciate. Rather, it was a necessary operational adjustment, and unfortunately, this meant we could not continue offering shifts to some of our casual team members, including yourself. As you've been employed on a casual basis, your employment does not include guaranteed hours, and either party can end the arrangement in line with Fair Work guidelines. That said, we do regret the abrupt nature of this change and acknowledge the impact it may have had. We wish you all the best moving forward and thank you again for your contributions during your time with us."

• The Applicant responded and stated words to the effect of:

"You state that the staffing restructure prioritizes full-time employees to ensure "sustainability and consistency", yes I note that plenty of casual staff continue to work at The Bakehouse, including in roles identical to mine. From the current roster, it's evident that one casual staff member is scheduled for 21 hours next week, while another has been allocated a substantial 40 hours. If, as you claimed, this decision is not about performance, why have other casual staff being given ample shifts while I have been abruptly dismissed? This discrepancy suggests a lack of fairness or consistency in how the restructure has been applied. How can it be that a decision-making process, described as a necessary operational adjustment, leaves me with no shifts? It feels like I've been targeted as a problem to be removed, for reasons you haven't explained. I request a detailed and transparent account of the rationale behind my termination to clarify why I've been singled out for my role in this restructuring."

• The Respondent responded and stated words to the effect of:

"As mentioned, a recent staffing restructure has resulted in a reduction of casual hours with available shifts being prioritised for full- time staff. While a small number of casuals remain, these limited hours have been allocated based on several operational factors including availability start times, role coverage, and current business needs. While we understand you may have assumptions about internal rostering decisions, please be aware that there are broader changes underway that are not up for discussion. These are management decisions made in the best interest of the business. The decision was not performance-related, and your employment as a casual did not include a guarantee of ongoing work. We respect your right to seek advice from Fair Work and will cooperate if contacted."

• The Applicant responded and stated words to the effect of:

"you mentioned availability start times as a factor, yet the business opens at 5:30am, and my 6:00am start time during the week has never been raised as an issue by management or staff. I will continue to pursue this matter with Fair Work Australia to ensure the process aligns with legal and ethical standards. I again request a detailed and specific explanation of how these "operational factors" were applied to justify my termination, particularly when no prior concerns were communicated another casual staff continued to receive substantial hours".

• [16] The Respondent submitted that the Applicant's application is without merit and vexatious.[19] In particular the Respondent submitted:

• • The Applicant has failed to clearly identify or substantiate how the Respondent has taken adverse action against him for a prohibited reason under the Act.[20]
• • There is no factual or evidentiary basis provided by the Applicant to support the assertion that the redundancy was anything other than a legitimate business decision.[21]
• • The Applicant alleges that he has a valid case because he exercised his workplace rights in asking questions in relation to his dismissal but he did this after the dismissal took effect.[22] As the exercise of his rights came after the dismissal the exercise of rights could not have influenced or contributed to the decision to dismiss the Applicant and cannot be a breach.[23]
• • The dismissal was based solely on legitimate operational grounds and the Applicant has failed to establish or provide evidence that the redundancy was non-genuine.[24]

• [17] It appears that the Applicant's concerns predominantly relate to the process adopted by the Respondent in affecting his dismissal however to the extent that he submits that the Respondent has taken adverse action in dismissing him, it is unclear from his submissions and evidence as to why he alleges the Respondent took that step. While the Applicant requested information about his dismissal after it was affected, as submitted by the Respondent in its response to the application, this occurred after he had been dismissed and therefore this could not have influenced or contributed to the decision to dismiss him. The Applicant has not clearly articulated an alleged breach of the Act and this weighs against a conclusion that there are exceptional circumstances in this case.

Section 366(2)(e) -- fairness as between the person and other persons in a like position

• [18] In relation to this consideration the Applicant submitted that denying his application due to a procedural misstep would unfairly penalise him as a casual worker acting without legal representation.[25]

• [19] The Full Bench has noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[26]

• [20] The parties did not bring to my attention any matters currently before the Commission or others previously decided by the Commission relevant to this consideration.

• [21] I consider this to be a neutral consideration.

• [22] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. I have taken into account all of the matters in s 366(2), finding that:

• The reasons put forward by the Applicant do not constitute acceptable reasons for the delay and in assessment the reason for delay weighs against a conclusion that there are exceptional circumstances in this case (s.366(2)(a)).
• The Applicant took action to dispute his dismissal shortly after being dismissed and this weighs in favour of a finding of exceptional circumstances (s.366(2)(b)).
• The Respondent has and will suffer prejudice (s.366 (2)(c)).
• The Applicant has not clearly articulated an alleged breach of the Act and this weighs against a finding of exceptional circumstances (s.366(2)(d)).
• The parties did not bring to my attention any matters currently before the Commission or others previously decided by the Commission relevant to a consideration of s.366(2)(e).

• [23] In taking into account and weighing the above matters, 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] Applicant's Submissions at [2]; Respondent's Submissions at [4].

[3] Applicant's Statement at [2], Applicant's Submissions at [2]. See also Applicant's Submissions at [3].

[4] Applicants Timeline of Relevant Events.

[5] Applicants Timeline of Relevant Events.

[6] Applicant's Submissions at [2], [4].

[10] Respondent's Submissions at [15].

[12] Respondent's Submissions at [15].

[13] Respondent's Submissions at [17].

[14] Respondent's Submissions at [18].

[15] Respondent's Submissions at [17].

[19] Respondent's Submissions at [3].

[20] Respondent's Submissions at [20].

[21] Respondent's Submissions at [20].

[22] Respondent's Submissions at [21].

[23] Respondent's Submissions at [21].

[24] Respondent's Submissions at [21].

[25] Applicant's Respondent's Submissions at [20]. Submissions at [7].

[26] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

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