Fair Work Act 2009

s.365 - General protections

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

[1] Mr Trent Kyle Ah Sam has made an application under s 365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by his 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). Mr Sam says that the dismissal occurred on Thursday, 6 November 2025. The 21-day period therefore ended on Thursday‎, ‎27‎ ‎November‎ ‎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 28 November 2025. For the application to proceed, Mr Sam 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] Mr Sam has filed multiple applications with the FWC relating to his dismissal. Mr Sam initially lodged an unfair dismissal application. Mr Sam says that, after doing so, the website directed him to a Form F8 and he believed that a general protections application would be more appropriate.[1] On 20 November 2025, as multiple applications had been lodged in relation to the same matter, Client Services contacted Mr Sam and left a voicemail advising that he had filed more than one application. On 20 November 2025, Client Services also sent an email to the same effect, stating:[2]

"Under Section 725 of the Fair Work Act 2009, you cannot make more than one application about the same dismissal. If your first application hasn't concluded or been discontinued, you are not able to submit a second application.

There is more information about multiple applications on the Fair Work Commission website.

• Application Two - General Protection claim C2025/11174 cannot continue. Please consider discontinuing this Application.

• There is more information about discontinuing applications on the Fair Work Commission website.

• To discontinue your application(s) send us:
• a completed Form F50 Notice of discontinuance

• an email stating you are discontinuing your application to lodge@fwc.gov.au.

• You can choose to then continue Application One - Unfair Dismissal claim U2025/17716.

• If you want to pursue a General Protection claim you need to discontinue BOTH Application One AND Application Two and THEN file a third application, being a General Protection application.

• A 21-day time limit applies - you will need to apply for an extension of time to lodge the third application more than 21-days from the date of your dismissal and provide evidence to explain why your application is late. A Commission Member will only grant an extension of time in exceptional circumstances. More information on deadlines and extension of time requests can be found here.

If you do not discontinue Application Two, and you do not provide a reasonable legal basis to show that the Application can continue, the Commission will consider dismissing the Application under s.587(1)(a) of the Act.

The deadline for providing this information is 27 November 2025."

[3] As to the reason for the delay (s 366(2)(a)), Mr Sam submitted the following:

"The delay was caused by procedural confusion and incorrect advice provided to me by the Fair Work Commission after I submitted both an F2 Unfair Dismissal application and an F8 General Protections application on 06/11/07 and 07/11/25 right after each other. I lodged both forms because the F8 was appropriate and was then advised by the Commission on 13/11/25 that only one application could proceed. I attempted to pursue the F8, as it was the more appropriate application for my circumstances, but I was informed that the F8 would be dismissed solely because the F2 had been lodged first.

I believe I asked whether I could withdraw both applications and resubmit the correct form, but I was advised to seek legal advice because I wished to amend the F8 form to add context about a DES provider. Fair Work Commission had stated that both applications would remain open and the case was sent to a manager. I received no further guidance till I made a complaint in regards to a phone call taken place early on 27/11/25, to close the F8 and continue with the F2. Once I made a complaint to the Commission they advised myself they close both forms and I can re-lodge the F8. By this point, time had expired. I also queried why my F8 remained open between 13/11/25 and 27/11/25, but the Commission could not provide a documented reason.

Had I been advised on 13/11/25 that I could simply withdraw both forms and resubmit the appropriate application, I would have done so on the same day and remained within the 21-day lodgment period. The delay therefore occurred because of the conflicting and incomplete information provided to me by the Commission, not because of any inaction on my part. As soon as the Commission clarified that I was able to re-lodge the F8, I took action."

• [4] It is well accepted that ignorance of the existence of a legal right or the timeframe for lodgement associated with that right is not an exceptional circumstance.[3] I reject Mr Sam's contention that the delay was caused by incorrect advice provided by the Commission. Mr Sam has not provided any material evidence to support his contention. It is clear from the email sent by the Client Services team on 20 November 2025 that Mr Sam was advised that if he wished to pursue an application under s 365, he would first need to discontinue the applications he had already lodged and then file a new application under s 365. The email sent on 20 November 2025 also highlighted the strict 21-time limit and clearly advised Mr Sam that the deadline for providing the required information was 27 November 2025. At the time of receiving this email from the Commission, Mr Sam had seven full days remaining to take the required actions and lodge this present application in time but did not do so.

[5] I do not accept that these matters prevented or seriously impeded the possibility of timely lodgement of the F8 application form and as such, they do not provide a reasonable explanation of the delay. In my assessment, the reasons for delay weighs against a conclusion that there are exceptional circumstances in this case.

[6] As to the other mandatory considerations, I have been provided no evidence to suggest that Mr Sam made any attempts to dispute his dismissal (s 366(2)(b)). This weighs against the granting of an extension. 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 Mr Sam and other persons in a like position (s 366(2)(e)). I consider these to be neutral factors.

[7] As to the merits (s 366(2)(d)), I do not consider the merits of the present case to tell for or against an extension of time. I regard the merits as a neutral consideration.

[8] 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.

[2] Email from Fair Work Commission Client Services Team to Trent Kyle Ah Sam dated 20 November 2025.

[3] Miller v Allianz Insurance Australia Ltd  [2016] FWCFB 5472 at [23]; Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [14].

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