s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - application made out of time - no exceptional circumstances - extension not granted - application dismissed.

[1] On 6 November 2025, Mr Pothas filed an application under s 365 of the Fair Work Act 2009 (Cth) alleging that his dismissal by Hosch International Pty Ltd was in contravention of Part 3-1 of the Act. Mr Pothas' dismissal either took effect on 18 September 2025 or 3 October 2025. In either situation, his application is outside the 21-day timeframe in s 366 of the Act.

[2] The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so.

[3] The parties were legally represented and filed materials in support of their positions. Both parties were of the view that the matter could be determined on the papers. I agreed.

[4] Having considered the evidence of the parties and the factors in s 366(2) of the Act, I do not find that there are exceptional circumstances that would justify an extension of time.

[5] The detailed reasons for my decision follow.

[6] Mr Pothas's unchallenged evidence is as follows.

[7] On 18 September 2025, Mr Pothas received a redundancy letter from the Managing Director for Hosch (First Redundancy Letter). The letter relevantly stated that his position as a Safety Inspector would be made redundant effective 18 September 2025. The letter also offered Mr Pothas an alternative position as a Service Technician.

[8] On 24 September 2025, Mr Pothas lodged an unfair dismissal application with the Commission (U2025/15445). In this unfair dismissal application, Mr Pothas stated his dismissal date was 18 September 2025.

[9] At the same time, Mr Pothas requested that Hosch reconsider his redundancy and engaged in discussions with Hosch representatives.

[10] On 3 October 2025, the Hosch Managing Director sent Mr Pothas an email addressing points that had arisen from their discussions. This included the statements:

• "The redundancy process commenced on 18 September 2025, but during this period of communication we have continued to treat you as an employee. For that reason, the pay you have received since that date will not be deducted from your redundancy package"; and
• "Having now addressed your questions, I want to confirm that the redundancy of the Safety Inspector position will be finalised today, 3 October 2025. You will receive your formal redundancy letter and your final package details, including information on your vehicle arrangement, from HR."

[11] After this email, on 3 October 2025, Mr Pothas received a letter stating that his position as a Safety Inspector had been made redundant, effective from 3 October 2025 (Second Redundancy Letter).

[12] Between 18 September 2025 and 3 October 2025, Mr Pothas was paid his normal rate, including payments for a public holiday and for personal leave taken.

[13] On 23 October 2025, Mr Pothas made an application to the Commission under s 365 of the Act (C2025/10604, First GP Application), stating that his dismissal date was 3 October 2025.

[14] On 4 November 2025, a Commission Client Services Representative called Mr Pothas and advised that he could not pursue a general protections claim at the same time as an unfair dismissal application. Mr Pothas asked if the Commission could discontinue the unfair dismissal application and progress with the general protections claim. The CSR advised that this was not possible and advised Mr Pothas to discontinue both claims and resubmit a general protections application.

• [15] Mr Pothas discontinued his unfair dismissal application on 4 November 2025. On 6 November 2025, Mr Pothas discontinued his First GP Application.[1] Mr Pothas then filed this current general protections application on 6 November 2025.

[16] Hosch submits that the First Redundancy Letter notified Mr Pothas of his dismissal and the discussions that followed simply addressed Mr Pothas' challenge of his dismissal. Further, that the Second Redundancy Letter simply upheld the dismissal decision that had already been made. Hosch did not lead any evidence or submissions on how the period between 18 September and 3 October 2025 should otherwise be characterised.

[17] I do not accept Hosch's argument. Mr Pothas may have been told that his dismissal took effect on 18 September 2025, but from his uncontested evidence, Mr Pothas and Hosch representatives engaged in further discussions regarding the need for the redundancy. Mr Pothas was also paid for the period between 18 September and 3 October 2025, including for a period of personal leave. And as per the email from Hosch on 3 October 2025, Hosch treated Mr Pothas as an employee during this time. I find that Mr Pothas' dismissal took effect on 3 October 2025. Mr Pothas' application is therefore 13 days out of time.

[18] Section 366 of the Act provides that a s 365 application must be made within 21 days after the dismissal took effect; or, within such further period as the Commission allows under s 366(2) if satisfied that there are exceptional circumstances.

• • Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon.[2]

• • The circumstances themselves do not need to be unique not unprecedented, nor even very rare.[3]

• • Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[4]

• [20] In determining whether there are exceptional circumstances, I must take into account the criteria in s 366(2). Each of the matters in s 366(2) must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[5] I set out my consideration of each matter below.

• [21] Mr Pothas submits that his unfair dismissal application was filed before the dismissal was effective and filed the First GP Application on the twentieth day after his dismissal. Mr Pothas says that he lodged the two applications as he was confused by the two redundancy notices.[6]

[22] Mr Pothas' further evidence is that he understood the First GP Application was an appropriate claim as the unfair dismissal application had been lodged before his dismissal took effect. I accept that Mr Pothas may have been confused about when his dismissal took effect, but he does not argue that he was dismissed twice. Mr Pothas' unfair dismissal application, the First GP Application and this current application all deal with the same redundancy decision.

[23] Mr Pothas' legal representative also contends that the CSR was wrong in telling Mr Pothas that he needed to discontinue the First GP Application due to s 725 of the Act. This is because s 725 was not enlivened as Mr Pothas was not eligible to make an unfair dismissal application on 24 September 2025 (or the unfair dismissal would have failed for want of jurisdiction under s 729(1)(b)(ii) of the Act). This submission is misguided.

[24] Mr Pothas did make the unfair dismissal application, and it was on foot at the time the First GP Application was made on 23 October 2025, as it had not been discontinued; failed for want of jurisdiction; or failed because the Commission was satisfied that the dismissal was a case of redundancy. Whether the unfair dismissal application might be later dismissed does not mean that s 725 is not enlivened. This submission also ignores cases such as Mihajlovic v Macarthur [2014] FWCFB 1070, which found that the filing of an unfair dismissal application before a dismissal takes effect is an irregularity that the Commission has the discretion to waive under s 586(b) of the Act. Mr Pothas filing his unfair dismissal application prior to his dismissal taking effect does not automatically mean that his unfair dismissal application would be dismissed.

[25] Mr Pothas also says that when he lodged the First GP Application, he, "understood from the application form that under the section 'Other claims', if [he] answered yes to having started other claims, [he] would be asked which of the applications he would like to proceed with." Mr Pothas seems to argue that he should have been given the opportunity to discuss with the Commission the process to discontinue the unfair dismissal application and move forward with the First GP Application. I am not persuaded by this argument. It is not the responsibility of, nor is it appropriate for, the Commission as an impartial tribunal to manage an applicant's claims in the way Mr Pothas seeks.

• [26] Based on Mr Pothas' evidence, I find the reason for the late filing is Mr Pothas' ignorance of s 725 of the Act. It is well-established that ignorance of the law, without more, will generally not constitute an acceptable reason for a delay in lodging an application within the statutory timeframe.[7] I note there are other Commission cases which have looked at very similar circumstances where an applicant has filed two applications, then been out of time once they had discontinued the applications and refiled.[8] I refer to the decision of Deputy President Masson in Maumill v Empower Youth OoHC Services &Tamzin Roseheart,[9] where he found at [17]:

...The filing of concurrent applications is not 'out of the ordinary course, unusual, special or uncommon'. It is in fact a routine occurrence; hence the concurrent application information provided on the Commission's website and in the F8 Application form, along with information on the 21-day filing requirement and concurrent applications issue. The Applicant in completing his various applications was put on notice about both issues.

[27] In this case, having the circumstances leading to Mr Pothas filing his unfair dismissal application and the First GP Application, I do not find that there is 'more'. I find that Mr Pothas does not have an acceptable reason for the delay. This is a factor that weighs against a finding of exceptional circumstances.

[28] This consideration is directed at action taken to dispute the dismissal once it has occurred. In this case, I accept that Mr Pothas filed an unfair dismissal application and the First GP Application. I find that Mr Pothas took action to dispute the dismissal. This is a factor that weighs in favour of a finding of exceptional circumstances.

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

• [29] Hosch does not contend specific prejudice. However, the absence of prejudice is not, of itself, conclusive of exceptional circumstances.[10] In these circumstances I treat this consideration neutrally.

• [30] The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[11] Further, the primary consideration is whether Mr Pothas has an arguable case.[12] In cases like this where there is not a full examination of the substantial merits, it is appropriate to assess any limited material through the prism of viewing the applicant's case at its most favourable.[13]

[31] Mr Pothas says he was chosen for redundancy and dismissed because he made a bullying and harassment complaint and had lodged a workers' compensation claim. Hosch denies this.

[32] Given the limited evidence provided and the contested nature of the relevant events, I am unable to make any merits findings at this preliminary stage. I find that this consideration is a neutral factor in assessing whether there are exceptional circumstances.

3.5 Fairness as between the Applicant and other persons in a similar position

[33] The parties did not address this consideration, and I do not make any findings in this regard.

[34] The statutory considerations are largely neutral, with the exception of the reason for the delay and action taken to dispute the dismissal weighing against each other. Having considered all the circumstances of this matter and the factors in s 366(2), I find that the reason for the delay outweighs the action taken to dispute the dismissal. I am therefore not satisfied that there are exceptional circumstances.

[35] As I am not satisfied that there are exceptional circumstances, I order that Mr Pothas' application be dismissed.

[2] Nulty v Blue Star Group Ltd [2011] FWAFB 975 [13].

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

[8] See: O'Reilly v S&E Education Pty Ltd [2026] FWC 115; Jill v Navitas Pty Limited [2026] FWC 73.

[9] [2026] FWC 220.

[10] Jovcic v Coopers Brewery Limited [2023] FCA 797 [16](d); BQQ15 v Minister for Home Affairs [2019] FCAFC 218 [33]; Parker v R [2002] FCAFC 133 [6]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-9.

[11] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 [14].

[12] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 [32]-[34].

[13] Ivan Cowen v Renascent Regional Pty Ltd [2021] FWCFB 2606 [42].

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