s.365 - General protections

Circle Of Life Chiropractic And Natural Therapies Pty Ltd

Application to deal with contraventions involving dismissal

• [1] Ms Vanessa Rendall has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Ms Rendall's allegations that she has been dismissed from her employment with Circle Of Life Chiropractic And Natural Therapies Pty Ltd (Circle Of Life) in contravention of Part 3-1 of the FW Act.

• [2] Section 366(1) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. The application was made on 13 October 2025.

• [3] The information in the application and in the employer response form lodged by Circle Of Life indicates that the application has been made out of time.

• [4] Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application.[1]

• [5] In summary, I have found that Ms Rendall's employment ended on 26 July 2025. The application should have been made on 15 August 2025 to comply with s.366(1) of the FW Act. The application was therefore made 58 days outside of the 21-day limit.

• [6] I have found that the circumstances in which the application was made are not exceptional, according to the factors in s. 366(2) of the FW Act, and so I have not granted an extension of time to file the application. The application is dismissed.

When must an application for the Commission to deal with a dismissal dispute be made?

• [7] Section 366(1) of the FW Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

• [8] It is a matter of record that the application was made on 13 October 2025.

• [9] The letter of termination establishes that the dismissal took effect on 26 July 2025.

Was the application made within 21 days after the dismissal took effect?

• [10] As the Full Bench has stated, "[t]he 21 day period prescribed... does not include the day on which the dismissal took effect."[2]

• [11] As I found above, the dismissal took effect on 26 July 2025. The final day of the 21 day period was therefore 16 August 2025 and ended at midnight on that day. The application was made on 13 October 2025. The application was made 58 days late.

• [12] As the application was not made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.

Should the Commission a further period for the application to be made?

• [13] Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(b) any action taken by the Applicant to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the Applicant and other persons in a similar position.

• [14] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]

• [15] I set out my consideration of each matter below.

• [16] For the application to have been made within 21 days after the dismissal took effect, it should have been made by midnight on 16 August 2025. The delay is the period commencing immediately after that time until 13 October 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]

• [17] 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.[5]

• [18] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[6]

• [19] In the application, Ms Rendall cited the following reasons for the delay:

• Ms Rendall was never provided with a Fair Work Information Statement or any other documentation explaining her rights, including the strict 21-day lodgement timeframe for general protections or unfair dismissal claims.
• Following the termination, Ms Rendall was subjected to a series of hostile and intimidating communications from Circle Of Life's lawyers (You Legal) which caused genuine confusion and distress about her legal position. Ms Rendall said that she was misled into believing the allegations were purely civil or contractual and was not aware of her right to file a claim under the FW Act until she contacted the Fair Work Ombudsman and Commission the week that she filed the application.
• Ms Rendall submitted that the absence of a Fair Work Information Statement, combined with Circle Of Life's threatening correspondence and legal posturing, created a situation of significant power imbalance and intimidation.
• Ms Rendall said that she acted immediately upon becoming aware of her rights, sought advice from the Commission, and filed the application at the earliest practicable opportunity. The delay was not deliberate, tactical, or negligent. It arose solely from her lack of information due to Circle Of Life's breach of s.125 of the FW Act.

• [20] The documents provided by Ms Rendall show that she received correspondence from You Legal on 3 October 2025 and 17 October 2025. It appears that Ms Rendall contacted the Fair Work Ombudsman after receiving this correspondence and did not take any steps in relation to the termination of her employment prior to this time. As this correspondence was sent to Ms Rendall more than two months after the dismissal, it does not explain why Ms Rendall did not file the application by 16 August 2025.

• [21] In relation to Ms Rendall's assertion that she was unaware of her rights because she was never provided with a Fair Work Information Statement, it is difficult for me to accept that a person in Ms Rendall's position who wanted to challenge her dismissal would not take proactive steps to do this. Ms Rendall is university educated and submitted material which shows that she has proficient literacy skills. In these circumstances, I find that she was capable of educating herself about the application process and time limit by internet searches or other methods. Ms Rendall has not provided any explanation for her failure to do so.

• [22] In the circumstances, I find that Ms Rendall's explanation for the delay is inadequate and weighs against a finding of exceptional circumstances.

What action was taken by Ms Rendall to dispute the dismissal?

• [23] There is no evidence that Ms Rendall took action to dispute the dismissal prior to making the application on 13 October 2025. This is a matter which weighs against a finding of exceptional circumstances.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [24] Ms Rendall submitted that Circle Of Life will suffer no prejudice if the matter proceeds, whereas refusing an extension would permanently deprive her of a statutory remedy for conduct that is serious, deliberate, and ongoing. Circle Of Life submitted that it is not correct that it will suffer no prejudice if the matter proceeds. There is no evidence which supports a finding that Circle Of Life will suffer prejudice if the matter proceeds. As such, this matter is a neutral consideration.

• [25] Ms Rendall was employed by Circle of Life as a Chiropractor, initially as a contractor from March 2023 to August 2025, then as a part-time employee from 1 August 2024 until she was dismissed.

• [26] Ms Rendall submitted that throughout her employment she consistently used her professional Biomedica practitioner account to prescribe supplements, a standard and lawful practice within chiropractic and natural health with full disclosure to the practice owner, Dr Katie McManus. At no time was she directed in writing or otherwise advised that this conduct was prohibited or that it could result in disciplinary action or termination.

• [27] Ms Rendall said that in or around July 2025, she was accused by Dr McManus of 'dishonesty' and 'theft' in relation to these supplement prescriptions and was verbally terminated without written warning, without being afforded an opportunity to respond to allegations. Ms Rendall contended that this was in direct breach of s.340 and 341 of the FW Act and the principles of procedural fairness. Ms Rendall claimed that the workplace right she was exercising was professional discretion in clinical and treatment decisions and also referred to inquiring about a potential pay increase prior to the termination. Ms Rendall also referred to Circle Of Life engaging in coercion, undue influence and adverse conduct after the termination.

• [28] Section 341(1) deals with the meaning of workplace rights and provides:

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee - in relation to his or her employment.

• [29] Ms Rendall has not clearly articulated the basis upon which she claims to have been exercising workplace rights.

• [30] Ms Rendall's exercise of professional discretion in clinical and treatment decisions does not appear to involve the exercise of a workplace right under s.341(1). Similarly, Ms Rendall's claim that that Circle Of Life did not afford her procedural fairness does not appear to involve the exercise of a workplace right. Further, any conduct by Circle of Life after the termination of Ms Rendall's employment cannot be regarded as adverse action within the meaning of that term in s.342(1) of the FW Act because in relation to an employee, adverse action occurs when the employer:

(b) injures the employee in his or her employment; or

(c) alters the position of the employee to the employee's prejudice; or

(d) discriminates between the employee and other employees of the employer.

• [31] In other words, the FW Act prohibits an employer from taking adverse action against the employee during the course of the employment relationship but does not deal with adverse action taken after the employment relationship has ended.

• [32] Ms Rendall's main complaints in relation to the dismissal are that there was no valid reason for dismissal and she was not afforded procedural fairness. While these matters may be relevant to an unfair dismissal application under s.394 of the FW Act, a general protections proceeding is not a broad inquiry as to whether an applicant has been subjected to a procedurally or substantively unfair outcome.[7]

• [33] It appears to me that Ms Rendall did not meet the qualifying period to lodge an unfair dismissal application because Circle of Life is a small business. In these circumstances, Ms Rendall has lodged a general protections claim and attempted to make the circumstances of her case fit the legislative criteria.

• [34] Although it appears to me unlikely that Ms Rendall would succeed in a general protections claim because of the issues which I have identified above, I note that a detailed consideration of the merits is not required when considering whether to extend time under s.366(1)(b) and as such I have insufficient material before me to form more than a preliminary view about the merits.

• [35] On this basis, I find that this matter is a neutral consideration.

Fairness as between Ms Rendall and other persons in a similar position

• [36] As Ms Rendall did not make any meaningful submissions in relation to this matter, I find that this matter is a neutral consideration.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [37] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

(b) that no action was taken by Ms Rendall to dispute the dismissal prior to making the application; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between Ms Rendall and other persons in a similar position

• [38] 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.[8] 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.[9]

• [39] Ms Rendall has not established that any of the matters in s.366(2) either individually or collectively weigh in favour of a finding that there were exceptional circumstances.

• [40] Having regard to all of the matters provided in s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances so there is no basis to allow an extension of time. Ms Rendall's application for the Commission to deal with a dismissal dispute is therefore dismissed.

[1] Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited [2022] FWCFB 234, [15]

[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]

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

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]

[7] Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]

Printed by authority of the Commonwealth Government Printer