s.365 - General protections

Application to deal with contraventions involving dismissal - Application made outside the 21-day timeframe - No exceptional circumstances found - Application dismissed.

• [1] On 8 August 2025, Mr Vishnu Viswambharan filed an application under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a general protections dispute involving dismissal. The Respondent to Mr Viswanbharan's application is VU Online Pty Ltd (VU).

• [2] Mr Viswambharan was dismissed by VU effective 29 May 2025. The Commission's records indicate that Mr Viswambharan filed an unfair dismissal application on 15 July 2025, which was outside the 21-day timeframe. The records then show that he withdrew this unfair dismissal application on 8 August 2025 and subsequently filed this general protections involving dismissal application on 8 August 2025, 50 days outside the 21-day timeframe required to file an application.

• [3] The matter proceeded to a Determinative Conference. Parties were invited to file any material in support of their position on whether an extension of time should be granted to Mr Viswambharan. Both parties filed material, and this material, as well as the Form F8 and Form F8A originally filed and the supporting documents, was accepted into evidence at the Determinative Conference. At the Determinative Conference, Mr Viswambharan gave evidence. Ms Valerie Fronimakis and Ms Briar Hirst appeared for VU.

• [4] In considering the material of the parties, I find that the application was filed outside the 21-day timeframe and that there are no exceptional circumstances justifying the granting of an extension of time. The reasons for my decision follow.

• [5] The Act allows the Commission to consider extending the period within which a general protections application involving dismissal may be made, if it is satisfied that there are exceptional circumstances.[1] I can only exercise my discretion if I am satisfied there are exceptional circumstances. The test to determine whether there are exceptional circumstances is a 'high hurdle,' and one that involves the exercise of discretion.2

• [6] The meaning of "exceptional circumstances" was considered and summarised by the Full Bench in Nulty v Blue Star Group:[2]

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be.

• [7] The matters that I need to consider to be satisfied whether there are exceptional circumstances are:[3]

a) the reason for the delay;

b) any action taken by the person to dispute the dismissal;

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

d) the merits of the application; and

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

• [8] Mr Viswambharan says that the reasons for the delay were because of a significant decline in his mental health, and that the stress of the allegations, combined with being a single parent of two children, did not leave him in a position to engage with the Commission within the required timeframe.

• [9] In Bianca Mamo v ICLED Australia Pty Ltd,[4] Deputy President Easton helpfully summarised the approach of the Commission where mental health is given as a reason for delay, as follows:

"It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However, the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit.

(i) stress, shock, confusion and similar conditions are not exceptional

(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant's capacity to lodge the application within the statutory time limit ...

(iii) the evidence should positively demonstrate that the applicant's depressive illness

had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame ... and

(iv) an applicant's self-assessment of their alleged psychological incapacity is

• [10] In Australian Postal Corporation v Lili (Karen) Zhang,[5] a Full Bench of the Commission determined that any medical evidence must be sufficiently compelling to be weighed favourably in an extension of time application.

• [11] Mr Viswambharan provided a letter from his treating practitioner, dated 8 September 2025, which states that he had been receiving medical care. The certificate does not provide any details of how long Mr Viswambharan has been receiving medical care, nor how his medical condition had impacted on his capacity to file his general protections application within time. Mr Viswambharan also says that to ask that he file medical evidence is a failure to appreciate the characteristics of psychological harm, because individuals who are suffering from mental health issues may not receive treatment immediately. Whilst I appreciate Mr Viswambharan's argument, I also note that he was able to file a remedy for unfair dismissal application prior to filing a general protections application. Further, I acknowledge that Mr Viswambharan's termination may have been very stressful, but I am unable, on the evidence before me, to conclude that his medical condition impacted his capacity to lodge a general protections application within time.

• [12] At the Determinative Conference, it was Mr Viswambharan's evidence that he was unaware he could file an application with the Commission until friends alerted him to a similar case that had been reported in the media. However, this was after the 21-days had already passed. Mr Viswambharan says that he filed an unfair dismissal application first because he felt that he had been dismissed unfairly. He says that he was then informed that he was above the high-income threshold and subsequently filed a general protections application. Mr Viswambharan says that he was aware that there were legal avenues available to him to challenge the dismissal, but he did not know about what he could specifically file.

• [13] Whilst I am sympathetic to Mr Viswambharan's circumstances, it seems evident that a reason for the delay is that Mr Viswambharan was not aware he could file an application until after the 21-day timeframe had already elapsed. It is well established in case law that ignorance of the timeframe is not an acceptable reason for the delay.[6]

• [14] I do not consider that the reasons for delay provided by Mr Viswambharan constitute exceptional circumstances.

Any action taken by the person to dispute the dismissal

• [15] Mr Viswambharan says that during his employment, he reached out to VU's Chief Human Resources Officer as this was the process outlined in VU's enterprise agreement. As part of his material, Mr Viswambharan filed an email addressed to Ms Simone Wright, in which he raised concerns about the process followed by VU in response to the allegations. Following the dismissal, Mr Viswambharan submits that he did not take any action to dispute the dismissal, other than by lodging a remedy for unfair dismissal application and then, a general protections application. For this reason, I therefore consider this to be a neutral factor.

Prejudice to the employer (including prejudice caused by the delay)

• [16] It is accepted that a lengthy delay will give rise to a general presumption of prejudice.[7] VU says that the general protection application contains new allegations which were not previously made as part of the unfair dismissal application and, if the matter were to proceed, then it would incur 'additional legal and/or administrative costs' in responding to these allegations.[8] VU also says that since the dismissal, operational circumstances have changed, and the delay may also impact on the availability of witnesses.

• [17] While I accept there may be some inconvenience to VU, I do not consider that VU will suffer any prejudice because of the delay, relative to if the application had been filed within time. I therefore consider this factor to be neutral.

• [18] The Full Bench in Ivan Cowen v Renascent Regional Pty Ltd[9] stated that 'in cases such as this where there is not a full examination of the substantial merits, it is appropriate to make an assessment of the case based on the limited material available through the prism of viewing [the] case at its most favourable.'

• [19] VU says that Mr Viswambharan's application is without merit and that allegations of misconduct against him were substantiated. Mr Viswambharan strongly denies the allegations against him. He says that he was dismissed for making complaints and exercising his workplace rights. From the material before me, I am unable to make a determination on the merits of the application without first hearing the full evidence. I therefore find that the merits are a neutral consideration.

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

• [20] Neither party made any substantive submissions with respect to this factor. As each matter turns on its own facts, having found no cases with a similar factual matrix to this matter and considering the circumstances of this case, I consider this factor to be neutral.

• [21] Having considered all the circumstances of this matter and the factors in s.366(2), I find that no factors weigh in favour of an extension of time being granted. I therefore decline to exercise my discretion to grant Mr Viswambharan an extension of time. It follows then that Mr Viswambharan's application has not been made within time and is therefore dismissed. An Order[10] to this effect will be issued with this Decision.

[1] Fair Work Act 2009 (Cth) s 366(1) (FW Act).

[2] [2011] FWAFB 975.

[4] [2021] FWC 3903 [24]-[25].

[5] [2015] FWCFB 5285 [22].

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 [14].

[7] GHD Pty Ltd T/A GHD v Mr Kevin Alan Black [2023] FWCFB 38, citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556.

[9] [2021] FWCFB 2606 [42].

[10] PR792738.

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