s.365 - General protections

Application to deal with contraventions involving dismissal - Application made beyond 21-day time limit - applicant seeking change of code for the purposes of Coal LSL - application dismissed.

• [1] On 22 November 2024, Mr Wade McGovern made an application to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal.

• [2] Mr McGovern was dismissed from his employment with Wolff Mining Pty Ltd (the Respondent) on 31 January 2023. To be within the 21-day time limit to bring a s.365 application, the application needed to have been made by 21 February 2023.

• [3] Section 366 of the Act states:

(1) An application under section 365 must be made:

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

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

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

(e) fairness as between the person and other persons in a like position."

• [4] The application has been made 1 year, 9 months and 1 day out of time. Mr McGovern seeks an extension of time within which to make his application.

• [5] Directions were issued, providing the parties with an opportunity to file witness statements and submissions. A hearing was convened by video using Microsoft Teams on 18 March 2025. Mr McGovern represented himself, supported by his wife, Mrs Chloe McGovern. Ms Amanda Wu of Ashurst was granted leave to appear for the Respondent. Mr Scott Tobin, Head of Employee Relations of the Respondent also attended the hearing. Mr McGovern gave oral evidence at the hearing.

• [6] Mr McGovern was a Supervisor for the Respondent at its Curragh Mine in Queensland.

• [7] On 31 October 2021, Mr McGovern suffered a workplace injury when a rock wall collapsed, and he and others had to evacuate. Mr McGovern suffers from complex post-traumatic stress disorder. He had been deemed medically unfit since 31 October 2021.

• [8] Mr McGovern stated he was medically treated and on heavy medication. He has a Work Capacity medical certificate stating that he is severely incapacitated from ongoing symptoms.

• [9] Mr McGovern was issued a letter from the Respondent informing him that his employment would end on 31 January 2023. The letter is titled, "Termination of your Employment by Reason of End of Contract".

• [10] Mr McGovern wishes to secure pro rata long service from the Coal Mining Industry (Long Service Leave Funding Corporation) (Coal LSL). To be entitled to a payment, he requires his termination with the Respondent to be recorded as terminated due to his work injury. He requires his termination to be recorded as a code 02 with Coal LSL.

• [11] The Respondent provided a code 05 to Coal LSL, declaring his employment came to an end due to "end of contract".

• [12] Mr McGovern began agitating his concern with the Respondent in around October 2024, requesting the Respondent contact Coal LSL and change his code to 02. The Respondent corresponded with him by email on 4 November 2024 as follows:

I refer to your email dated 25/10/2024 with the request of changing the cessation code with Coal LSL.

Your cessation with Wolff Mining was a direct result of a request from Coronado Curragh Mine that Wolff Mining were no longer to provide Supervision on site. In this instance all Supervisors were notified of the end of contract and were finished at the same time. This was not isolated to you or the circumstances at the time.

This notice was provided to Wolff Mining on November 28, 2022, via variation 17 to our existing services contract and was to take effect by end of January 2023.

Therefore, the correct code of 05 'other' was used as per end of contract.

• [13] On 20 November 2024, Mr McGovern's legal representative wrote to the Respondent to request his code be changed to 02 with Coal LSL. The communication states that if the Respondent fails to make the amendment with Coal LSL, the representative is instructed to make an application to the Fair Work Commission under s.39D of the Coal Mining Industry (Long Service Leave) Administration Act 1992.

• [14] It would appear that no response was received to the legal correspondence above.

• [15] Mr McGovern then filed this present application on 22 November 2024.

• [16] On 10 December 2024, the Respondent (via Ashurst) corresponded with Mr McGovern to inform him that the general protections application was made a very long time outside of the 21-day time limit. The following was also communicated to Mr McGovern:

7. We understand that the reason you commenced the Application is because you believe the Company did not select the correct termination coding for Coal LSL purposes.

8. You have indicated that you are seeking to commence a dispute pursuant to section 39D of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth). That provision confers jurisdiction on the Fair Work Commission to deal with a dispute about matters in relation to long service leave under the Act if the dispute was one that was the subject of section 738 of the Fair Work Act 2009 (Cth).

9. Whilst it is not a matter for this firm to provide you with legal advice and we are most certainly not providing such advice, it would appear that your application for a remedy for a general protections involving dismissal is misconceived. It to our client that you should have filed a dispute in the Fair Work Commission about a dispute under section 39D of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth), opposed to a general protections claim.

10. To commence a dispute application, you would need to file a F10 Application for the Commission to deal with a dispute. We have attached a copy of this form for your information.

11. We encourage you to your own legal advice on how you wish to progress the matter

12. In view of the above matters, our client advises you to withdraw your general protections application.

13. If you wish to press your assertion that the Company did not select the correct termination coding for Coal LSL purposes, our client invites you to commence a dispute by using the Form F10 Application for the Commission to deal with a dispute."

• [17] Mr McGovern submitted that the handling of this case by the Respondent had been unfair, unjust and fraudulent. He submitted that the Respondent was required to complete a separation form for Coal LSL and that the Respondent misinformed Coal LSL that he was currently under Workcover and receiving Medical Assistance.

• [18] Mr McGovern stated that he was never supplied with a copy of the Coal LSL separation certificate or notified that he had 21 days after the dismissal took effect to make an application to the Commission. As outlined above, Mr McGovern stated he was being treated for complex post-traumatic stress disorder and being medically titrated on heavy medication, which Mr McGovern stated led to mental instability.

• [19] In terms of the reason for delay, Mr McGovern submitted the following:

1. He considers that he was terminated by reference to s.232B of the Workers Compensation and Rehabilitation Act 2003 (Qld), which prohibits dismissal of an injured worker because they are unfit for work due to an injury within 12 Months after the worker suffers the injury. Mr McGovern submitted that dismissal after this timeframe was a tactic that was "very much utilised by businesses". He noted that his medical certificate started in January 2022, and he was terminated in January 2023.

1. Mr McGovern submitted that email correspondence and a letter exchanged between HR and himself on 4 February 2022 indicated that the Respondent attempted to request a medical assessment whilst he was under management of Workcover. Mr McGovern stated that:

"It clearly states - The purpose of this letter is to advise you that Wolff Mining is considering you for a new fixed term contract as a Supervisor at Curragh Mine subject to you interest and you passing a pre-employment medical. The pre-employment medical is necessary for Wolff Mining to understand whether you can fulfil the inherent requirements of the position without putting yourself or anybody else at an unacceptable level of risk."

1. Mr McGovern submitted that during the time he was receiving Workcover payments, he was being paid a percentage of his wages until such time as he was deemed stable and stationary. He submitted that his bills and financial commitments were able to be managed at this stage until Workcover payments ceased. When this happened, he then made contact with Coal LSL and tried to procure his long service leave benefits under a severe financial hardship application. Mr McGovern submitted that his application to Coal LSL was unsuccessful because the code completed on the separation form was an incorrect or fraudulent code. He submitted that he was advised the code on the separation form needed to be changed to allow him to access his entitlements. Mr McGovern submitted that it should be noted that the medical certificate commenced in January 2022, and it was at this time that he became aware that the Respondent had lied on the separation certificate. Mr McGovern stated that he contacted the Respondent and requested the code be changed to the true and correct code. Mr McGovern referred to a series of emails between himself and the Respondent on 25 October 2024 to 4 November 2024.

1. After receiving the Respondent's response, he engaged solicitors to act on his behalf to request the Respondent to change the code. The request was denied.

1. Mr McGovern submitted that he has now approached the Commission for assistance. He submitted that he has honestly tried everything for the Respondent to change the code to the correct code. He submitted that the Respondent had been unfriendly due to the complaints he had made. Further, he submitted that it seemed that the Respondent had no compassion for his experience or injury.

1. Mr McGovern submitted that he should be granted an extension of time as he was unfit because of his medical condition and medicine titration, and he was unaware that his employer did not act honestly.

1. Mr McGovern submitted that in relation to s.366(2)(b) of the Act, he followed all avenues available including legal representation, direct contact with the Respondent, and direct contact with the Coal LSL representatives.

1. Mr McGovern submitted that in relation to s.366(2)(d) of the Act, the evidence he has provided demonstrates that his application has merit.

• [20] In reply, Mr McGovern submitted that while it may be that he was ignorant of the law, he was unaware of the Commission's jurisdiction. Further, he submitted that he was not provided with a copy of the separation form that Respondent had given to Coal LSL. He submitted that he was not able to make an appropriate response at that time as he was not aware of this.

• [21] Mr McGovern submitted that the reason for the delay is quite clear; that he was and is still severely incapacitated due to his injury. He referred to his WorkCover Medical Certificate, Confidential Psychiatrist Medical Reports and a copy of the Medical Tribunal Assessment, all of which he said demonstrated his incapacity. Further, Mr McGovern submitted that he was unaware that the Respondent had "fraudulently" completed the separation notification to Coal LSL until such time that he was in a significant severe financial hardship. It was only at this time that Coal LSL informed him that an incorrect code had been used on the separation form.

• [22] Mr McGovern submitted that in relation to the action he took to dispute the dismissal, he contacted Coal LSL to cash out his long service leave to assist with his severe financial hardship both before and after injury. Mr McGovern submitted that his employment was terminated while he was still receiving workers' compensation. He submitted that he contacted the Respondent on 25 October 2024 and requested that it alter the codes on the separation form. He stated that the Respondent denied this request.

• [23] Mr McGovern stated that he due to severe financial hardship, he now needed to represent himself. Mr McGovern submitted that he contacted the Commission so it could be able to deal with his matter and find the appropriate outcome. Mr McGovern submitted that there is also a personal injury claim between himself and the Respondent that was soon be set with a date to go to trial. Mr McGovern submitted that since he and the Respondent are unable to communicate and meet at the middle ground in this matter, the Commission needed to be involved to settle.

• [24] Mr McGovern submitted that in relation to s.366(2)(e) of the Act, there has been no fairness in this matter. He submitted that the Respondent has been refusing to budge no matter what. He stated that the treatment of him, as an injured worker of the Respondent, has been inhumane from the moment the workplace incident occurred. He submitted that he remained onsite for over a month following the incident to get the Respondent to investigate it.

• [25] In evidence given during the hearing, Mr McGovern stated not every employee who is terminated receives a separation certificate and he considers that a 21-day time limit is "not right". He stated that he, his wife and six children are in severe financial hardship.

• [26] I took Mr McGovern to correspondence he had filed from Coal LSL dated 23 March 2023 where it had notified him at that date that the Respondent had nominated code 05 as to the reason for his dismissal. Mr McGovern stated that he didn't bring this application at that time due to his PTSD and his complete and utter focus on the investigation that the Respondent "should have done". He stated that the Respondent "owns his life 24/7" He stated his delay is due to his incapacity.

• [27] Relative to the Respondent's communication to Mr McGovern that he ought not bring this present application, and he ought to bring a dispute under s.39D of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Coal LSL Act), Mr McGovern stated that he couldn't bring himself to read all of the letter sent by the Respondent on 10 December 2024 and it made him "wild".

• [28] When asked how it is that he made the present application while he continues to suffer from incapacity, Mr McGovern stated that it took him only two minutes to bring the application before he moved onto other matters, namely his fixation on the inquiry into the accident.

• [29] The Respondent submitted that it was common ground that Mr McGovern's employment with the Respondent ended on 31 January 2023 and Mr McGovern lodged his general protections application on 22 November 2024.

• [30] The Respondent objected to the application because it was filed out of time and submitted that it should be dismissed because no exceptional circumstances have been made out.

• [31] Further, the Respondent submitted that the controversy Mr McGovern seeks to raise is one properly brought under section s.39D of the Coal LSL Act**.** This is because Mr McGovern is disputing the termination coding is in relation to Mr McGovern's ability to access long service leave entitlements under the Coal LSL Act. The Respondent noted that it attempted to draw this to his attention in a letter from Ashurst to Mr McGovern on 10 December 2024, but no response was received from Mr McGovern.

• [32] The Respondent submitted that Mr McGovern bore an onus of satisfying the Commission that there are "exceptional circumstances" within the meaning of s.366(2) of the Act for extending the time for filing the application.[1] Further, to amount to exceptional circumstances, the circumstances must be "out of the ordinary course, or unusual, or special, or uncommon".[2] This is a strict test.[3] It is also a high bar.[4] The Respondent submitted that Mr McGovern had failed to establish that there were exceptional circumstances warranting the grant of an extension of time having regard to the factors in s.366(2) of the Act.

• [33] It was submitted that Mr McGovern had purported to explain the reason for his delay in bringing the Application under "many topics". However, a number of the topics he then covered were irrelevant to explaining the reason for delay. For example, one such topic concerns actions taken by the Respondent before the cessation of employment. The Respondent disagreed with some of the facts alleged; however, it did not provide a full response to these allegations given as it considered the allegations irrelevant to the jurisdictional issue.

• [34] In relation to the cessation notification, the Respondent submitted if Mr McGovern was alleging that he was not notified of the cessation of his employment, the Respondent denied this allegation. The Respondent informed Mr McGovern of the cessation of his employment on 31 January 2023. The Respondent further submitted that Mr McGovern may be asserting that he was never supplied with a copy of the separation form that the Respondent submitted to Coal LSL to notify the regulator of the cessation of Mr McGovern's employment with the Respondent. However, the Respondent noted in his application, Mr McGovern stated that he was notified of the cessation on 31 October 2023. The Respondent submitted that, in any event, even if the Commission took into account the delay in Mr McGovern becoming aware of the termination coding provided to the Coal LSL, Mr McGovern was still over 12 months late in bringing the application.

• [35] In relation to ignorance of the statutory time limit, the Respondent submitted, as per Nulty v Blue Star Group Pty Ltd, that:[5]

"Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application."

• [36] In relation to Mr McGovern's personal circumstances, including his medical condition and treatment for his medical condition, the Respondent submitted it was important to have regard to the observations by the Full Bench in Ellikuttige v Moonee Valley Racing Club Inc.[6] The Respondent submitted that the question before the Commission was whether the evidence before it positively demonstrated that Mr McGovern's medical condition impacted his capacity so as to prevent or significantly impede the lodging of the Application within the statutory timeframe[7] and, if so, whether "exceptional circumstances" exist for the purposes of s366(2) of the Act.

• [37] The Respondent submitted that there was no "compelling medical evidence"[8] before the Commission to support a conclusion that the delay was due to Mr McGovern's medical condition. The Respondent noted the following:

(a) the WorkCover medical certificate concerned a period that predated the delay period, and it only addressed Mr McGovern's capacity to work in the relevant period;

• (b) the Full Bench had previously indicated in Underwood v Terra Firma Pty Ltd[9] that an applicant's self-assessment of their alleged psychological incapacity was unlikely to be sufficient; and

(c) in any event, McGovern had not addressed how, and to what extent, his medical condition impacted on his capacity to lodge a general protections application during the delay period from 21 February 2023 to 22 November 2024.

• [38] The Respondent submitted that it appears at its core, Mr McGovern's reason for the application was because he was experiencing "severe financial hardship" and wished to access his long service leave entitlements under the Coal LSL Act. While the Respondent was sympathetic to Mr McGovern's personal plight, it did not reveal any matter that would be considered "exceptional" for the purposes of s366(2) of the Act. The Respondent therefore submitted that the factors in s366(2)(a) of the Act cannot be weighed in favour of Mr McGovern's request for an extension of time.

• [39] In relation to s.366(2)(d) of the Act, the Respondent submitted that Mr McGovern advanced no submission in relation to the merits of his application. The Respondent submitted that Mr McGovern believed the Respondent dismissed him was because of a temporary absence from work because of illness or injury (s.352), but there is nothing in the application which supports any allegation that the Respondent has breached the general protections provisions in the Act.

• [40] On the contrary, it appeared to the Respondent that Mr McGovern's submissions simply confirm that his complaint was about how the cessation of his employment with the Respondent was coded for the purposes of the Coal LSL Act, rather than whether his employment ended in contravention of Part 3-1 of the Act. The controversy Mr McGovern's sought to raise was one properly brought under s.39D of the Coal LSL Act.

• [41] In relation to s366 (3)(b), (c) and (e) of the Act, the Respondent:

(a) observed that Mr McGovern only took steps to raise a dispute about the dismissal on 25 October 2024, more than 1 year and 8 months after the expiry of the statutory time limit. Further, the dispute Mr McGovern raised related only to the coding of his cessation of employment rather than about how the cessation was effected;

(b) did not assert any particular prejudice to the Respondent except the ordinary prejudice of making this jurisdictional objection to the Application (relevant to s.366(2)(d)) and said this was a neutral factor; and

(c) submitted that section 366(2)(e) was not engaged and should not be weighed, as the matter does not involve individuals in a similar position.

• [42] The Respondent submitted that accordingly, Mr McGovern failed to meet the onus to establish that there were "exceptional circumstances", and that Commission ought not be satisfied that an extension should be granted. The Respondent submitted that Mr McGovern's application should therefore be dismissed.

• [43] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd,[10] where the Full Bench said:

"[10] It is convenient to deal first with the meaning of the expression 'exceptional circumstances' in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression 'exceptional circumstances' in s.394(3) and held:

'[5] The word 'exceptional' is relevantly defined in The Macquarie Dictionary as "formatting an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.'

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression 'exceptional circumstances' was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

'23. I am of opinion that the expression "exceptional circumstances" requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:

"Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances."

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CL at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25 And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:

"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.'

[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. Nor is it correct to construe the plural 'circumstances' as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of 'exceptional circumstances' includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon." [footnotes omitted].

• [44] For exceptional circumstances to arise, as contemplated by s.366(2) of the Act, it is not necessary that the applicant for the extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances exist.

• [45] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[11]

• [46] The test of 'exceptional circumstances' establishes a 'high hurdle' for an application seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[12] A decision whether to extend time under s.366(2) involves the exercise of a discretion.[13]

• [47] The reason for the delay in lodging an application is a factor that must be considered. The Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[14] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, though it is ultimately a question of degree and insight.[15]

• [48] A reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[16] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[17]

• [49] Mr McGovern was informed by Coal LSL in March 2023 that the Respondent had declared code 05 for the reason for his dismissal and he was not yet eligible for payment of long service leave. It appears that Mr McGovern did not challenge the Respondent's coding at that time as Mr McGovern was in receipt of workers' compensation payments and not suffering from severe financial hardship.

• [50] When workers' compensation payments ceased and Mr McGovern suffered severe financial hardship, he made further inquiries with Coal LSL in around October 2024. He then requested the Respondent amend the code to code 02, and upon learning this would not be done, made this application.

• [51] I have no doubt that Mr McGovern suffers from a severe case of PTSD; that much is evident from my observation of him during the hearing. He cited incapacity as his reason for bringing this application so very late, but then stated that he completed it within two minutes before he moved on to other concerns.

• [52] Mr McGovern has demonstrated that he has capacity to bring this application despite his ongoing medical condition. I consider that the reason he made the application in November 2024 instead of when he learned about the Respondent providing a code 05 in March 2023 is because he was not experiencing severe financial hardship and had the benefit of workers' compensation payments in March 2023. If he had made his application in March 2023, he would have been out of time by roughly one month, not approximately 21 months.

• [53] The reasons for the delay provided are, in my view, not reasons that are supportive of an extension of time being granted.

Any action taken by the person to dispute the dismissal - s.366(2)(b)

• [54] Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant's employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[18]

• [55] Mr McGovern's concern has been in respect of the coding of his termination made by the Respondent to Coal LSL.

• [56] There is no evidence before the Commission that Mr McGovern took any action to dispute the dismissal. I consider this to be a neutral factor in the determination of whether there are exceptional circumstances

Prejudice to the employer (including prejudice caused by the delay) - s.366(2)(c)

• [57] While there is a delay of approximately 21 months in bringing the application, given the Respondent's firm position that the reason for the dismissal was contractual and simply due to an effluxion of time, and other employees were similarly let go, I do not consider there would be any prejudice to the Respondent caused by the delay.

• [58] It is well established that "it will not be appropriate for the Commission to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)."[19]

• [59] Mr McGovern has asserted in his application that he was dismissed in breach of s.352, a short-term illness or injury. It is noted that Mr McGovern's absence was for a very extended period of time, well in excess of three months as provided in Regulation 3.01(5) of the Fair Work Regulations 2009. Further, Mr McGovern's absence from work on workers' compensation does not afford him any greater protection pursuant to Regulation 3.01(6).

• [60] Mr McGovern is bringing his application to attempt to have the Respondent be directed to amend the code it has provided to Coal LSL so that he can access payments. His application in respect of s.352 is without merit. For this reason, this is not supportive of an extension of time being granted.

Fairness as between the person and other persons in a like position - s.366(2)(e)

• [61] The criterion of "fairness as between the person and other persons in a similar position" was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm,[20] where it was said:

"...cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission."

• [62] I am not satisfied that the criterion of fairness between Mr McGovern and other persons in a similar position weigh strongly in favour of either party. As such, I consider it a neutral consideration.

• [63] Taking into consideration the matters I am required to take into account under s.366(2) of the Act, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

• [64] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2).

• [65] Accordingly, the application must be dismissed. An order [PR7862651] will be issued with this decision.

• [66] It is noted that the Respondent, together with the Commission have informed Mr McGovern of his right to bring an application to the Commission pursuant to s.39D of the Coal Mining Industry (Long Service Leave) Administration Act 1992. The Respondent has even provided Mr McGovern with a form to do so. During the hearing, Mr McGovern stated that he was unlikely to do so as he didn't consider he had capacity to do so given his medical condition.

• [67] It remains available to Mr McGovern to pursue such an application.

[1] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, [299]-[300].

[2] Nulty v Blue Star [2011] FWAFB 975; (2011) 203 IR 1, [13]-[15].

[3] McConnell v A & PM Fornataro t/a Tony's Plumbing Service [2011] FWAFB 466; (2011) 202 IR 59; Robinson v Interstate Transport Pty Ltd

[2011] FWAFB 2728

[4] Ayub v NSW Trains [2016] FWCFB 5500, [36].

[5] [2011] FWAFB 975, [14].

[6] [2018] FWCFB 4988, [31].

[7] Graham v Granny Smith Gold Mining Company Pty Ltd [2024] FWCFB 272, [27].

[8] Australian Postal Corporation v Zhang [2015] FWCFB 5285, [21]-[22].

[9] [2015] FWCFB 3435, [15]-[16].

[10] [2011] FWAFB 975.

[11] Smith v Canning Division of General Practice [2009] AIRC 959.

[12] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[13] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

[14] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36].

[15] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 at [35]- [45].

[16] Ibid; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288.

[17] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]- [33]; and Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

[18] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[19] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [36].

[20] [2015] FWC 8885 at [29].

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