Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - application dismissed.

[1] On 11 January 2026, Wai Ting Lau lodged an application under s.365 of the Fair Work Act 2009 (the Act) in which they allege they were dismissed in contravention of Part 3-1 of the Act.

[2] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow.

[3] The Applicant was dismissed on 18 December 2025, and they made this application on 11 January 2026. The 21-day time limit was on 8 January 2026; therefore, the application is out of time by 3 days. For the application to proceed, an extension of time to lodge the application is required.

[4] Section 366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

• [5] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd, [1] where it was held that:

"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 regular occurrence, even though it can be a on 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."[2]

[6] The Applicant identifies only one reason for the delay. The explanation she provided in an email sent to my Chambers is as follows:

"I have had issue uploading the form through the FWC website and I had a screenshot attached. Then I sent an email to submit.

I also submitted the email screenshot as well. I am not sure went wrong?

I also paid after i received the email asking payment to be made in order to start the process."

[7] Supporting this email, Ms Lau attached a screen shot of the FWC lodgement page indicating "something went wrong", the title of this screenshot stated the date and time to be "2026-01-11 at 9.36.32 PM". The FWC records indicated Ms Lau lodged her application at 10.44pm on the 11th of January 2026 and made the required payment on January 22nd. Ms Lau advances no other reasons for the delay in filing her application and presents no additional evidence to support her contention that her circumstances were exceptional or "unique". I do not consider any of the reasons for the delay advanced by Ms Lau to be "unique" or "unprecedented", and I am not satisfied that they satisfy the criteria of being "out of the ordinary course", "unusual" or "uncommon". I am, therefore, not satisfied the Applicant has provided a credible and reasonable explanation for the period of the delay. As such, this factor weighs against the granting of an extension of time.

[8] As to s.366(2)(b) steps taken to dispute the dismissal, Ms Lau has not advanced any argument to suggest that she took action to dispute her dismissal. I consider this factor weighs against a finding of exceptional circumstances in this case.

• [9] In these circumstances, I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that weighs in favour of the granting of an extension of time.[3] As to fairness (s.366(2)(e)), neither party have made any submissions regarding this factor. I do not consider it relevant to the circumstances of this case and conclude this to be a neutral consideration.

• [10] As to the merits (s.366(2)(d)), Ms Lau's F8 Application form indicates she was dismissed because of her race and that she made enquiries about her pay. The substantive merits of this application have not been fully tested and, as identified by the Full Bench of the Commission in Kyvelos v Champion Socks Pty Ltd, the Commission "should not embark on a detailed consideration of the substantive case" for determining whether to grant an extension of time to an Applicant to lodge their application.[4] The factual context and merits of this case would need to be further scrutinised, including under cross-examination, if an extension of time was granted for the application to proceed. This being the case, I do not consider the merits of the case to tell in favour or against the granting of an extension of time, at best I consider it a neutral factor.

[11] In conclusion, I am required to be satisfied that there are exceptional circumstances. On balance, the considerations above do not weigh in favour of exceptional circumstances in support of an extension of time.

[12] Having considered the material against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application as provided for in s.366(2). Accordingly, the matter is dismissed.

[1] [2011] FWAFB 975.

[3] Fair Work Act 2009 (Cth) s.366(2)(c).

[4] AIRC 10 November 2000 at [14]; See also Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899 at [38].

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