s 365 - General protections

Application to deal with contraventions involving dismissal - out of time - extension of time granted

• [1] On 23 September 2025, Yang Song (the Applicant) applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth) (the Act) for it to deal with general protections contraventions involving dismissal.

• [2] The Act requires an application made under s 365 to be lodged within 21 days after the Applicant's dismissal took effect or within such further period as the Commission allows under s 366(1)(b) of the Act.[1] Burswood Resort (Management) Limited (the Respondent) objected to the application on the basis that it was filed outside the 21-day period prescribed by s 366(1)(a) of the Act.

• [3] It is uncontentious that the Applicant's dismissal took effect on 29 August 2025 and therefore his application was lodged four days after the statutory deadline. The Applicant contends that there are several reasons for the delay in lodging his application. The first and primary reason for the delay was a combination of significant personal crises arising from the disciplinary process and dismissal, and the decline in health and passing of the Applicant's father on 24 September 2025. Specifically, the Applicant relies upon the following:

(a) the significant emotional distress and mental impairment following his sudden dismissal, which led directly to a miscalculation of the deadline;

(b) the acute family crisis involving his father's rapidly declining health, and subsequently, his father's tragic passing on 24 September 2025; and

(c) his ongoing responsibilities in caring for his grieving and unwell mother.

• [4] For the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 366(1)(b) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the factors listed at s 366(2)(a)-(e) of the Act. The issue before me is whether the circumstances are exceptional and, if they are, whether it is fair and equitable for an extension to be granted.

• [5] In the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am, on balance, satisfied that there are exceptional circumstances as contemplated by s 366(2) of the Act and therefore I grant an extension of time in which to make the application to 23 September 2025. The matter will be programmed for a conference and the parties notified accordingly.

• [6] The broader context and events leading to the conclusion of the Applicant's employment and the delay in making the application are as follows.

• [7] The Applicant commenced employment with the Respondent on or around 18 August 2025 as a storeman.

• [8] The Respondent's Form 8A discloses that the Applicant was employed by the Respondent for a period of twelve days and in that period the Respondent received complaints from five employees in respect of the Applicant's alleged conduct.

• [9] By letter of 22 August 2025, the Respondent informed the Applicant that it had become aware of alleged inappropriate behaviour, which, if substantiated, would constitute misconduct. The allegations were presented to the Applicant in the following terms:

1. It is alleged that on Friday 22 August 2025, when retrieving boxes in the warehouse from a female team member at chest height that your hands extended further than necessary, resulting in contact with her sides each time you took a box from her.

2. It is alleged that on Friday 22 August 2025, you ran your hands up and down a female team members back whilst she was turned away. In the warehouse, the team member described it as shocking, unexpected and not ok.

3. It is alleged that on Friday 22 August 2025 you were excessively touchy with a female team member, for example you allegedly brushed you hand across her shoulder when passing by which was deemed to make the team member feel uncomfortable. This allegedly occurred in the warehouse.

• [10] By letter of 25 August 2025, the Applicant was informed that allegations two and three had been substantiated, and that the Respondent had, in deciding the appropriate disciplinary action, considered his number of days of service, his training, experience and responsibilities, and knowledge of relevant policies and procedures. The Applicant was further informed that the Respondent had formed the preliminary view that there were sufficient grounds to terminate his employment, and that the Applicant would be provided with the opportunity to show cause - which occurred on 28 August 2025.

• [11] On 29 August 2025, the Respondent informed the Applicant in writing that the findings were, on balance, substantiated, which amounted to misconduct in breach of the Applicant's employment contract and the Respondent's Code of Conduct. The Applicant was then informed that the Respondent had made the decision to terminate his employment, with his final day of employment being 29 August 2025.

• [12] Under s 366(2) of the Act, the Commission has the power to extend the time within which an application for a general protections dismissal dispute can be made. In Tamu v Australia for UNHCR,[2] a Full Bench of the Commission summarised the principles relevant to applications of this kind:

[16] Section 366(1) provides that a general protections application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2). The 21 day period prescribed in section 366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.

[17] Section 366(2) of the Act sets out the circumstances in which the Commission may grant an extension of time as follows:

"(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."

[18] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension. A decision whether to extend time under section 366(2) involves the exercise of a discretion.

[19] The meaning of "exceptional circumstances" in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd ('Nulty'),[3] as follows:

"[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance."

[20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.'

• [13] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd ('Stogiannidis'),[4] a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers,[5] which had concluded that for 'exceptional circumstances' to be established, an applicant must provide reasons for the whole of the period of delay. In Stogiannidis, the Full Bench expressed:

[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any 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 the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time 'needs to provide a credible explanation for the entire period', it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.

• [14] At the commencement of the hearing, the parties were referred to s 366(2) of the Act. Both were invited to make any further submissions in relation to the question of whether there were 'exceptional circumstances' by reference to those factors at paragraph [12] of this decision. Each of these factors are considered below and were outlined to the parties before the hearing.

• [15] It has been observed that the Act does not specify what reasons for delay might tell in favour of granting an extension.[6] However, decisions of the Commission have referred to an acceptable[7] or reasonable[8] explanation. The absence of any explanation for any part of the delay may weigh against an applicant in the assessment of whether there are exceptional circumstances, whilst a credible explanation for the entirety of the delay will usually weigh in the applicant's favour however, all of the circumstances must be considered.[9]

• [16] The relevant period required to be considered under s 366 of the Act is the period after the 21-day timeframe for lodging the application.[10] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[11]

• [17] The Applicant stated that the sudden termination of his employment on 29 August 2025 plunged him into a state of immense financial and emotional distress. The Applicant further stated that he was deeply troubled by the situation, as he believed the two substantiated allegations against him fundamentally misrepresented his actions and character, and that his explanations were disregarded. The Applicant submitted that the resulting finding of misconduct against him had effectively barred him from any future employment with the Respondent, thereby compounding his distress and rendering the time and investment he devoted to the Respondent's security training in June 2025, a complete loss.

• [18] In addition, the Applicant gave evidence that during the period (presumedly from the date of his dismissal) there was an escalating decline in his father's health which placed him under extreme emotional 'duress', which compromised his mental clarity and led to the Applicant miscalculating the 21-day timeframe by erroneously excluding weekends. The Applicant's evidence was that his mental impairment is directly reflected in the 'draft' application that he submitted, it being unfinished and unpolished - a manifestation of his impaired mental condition and inability to think clearly at the time.

• [19] Expanding upon his emotional state, the Applicant explained that during the period (presumedly after his dismissal), his father's health was in significant and rapid decline, placing him under extreme emotional 'duress'. The Applicant stated that his father suffered from dementia, Parkinson's disease, and Type II diabetes, had severe eating difficulties, and was completely reliant on others for all daily activities. The Applicant noted that his caregiving duties extended beyond the physical, as his father's dementia had advanced to the point where he could no longer speak or recognize anyone, and therefore the Applicant spent several hours each day talking to his father and trying to stimulate his awareness to slow his cognitive decline. The Applicant noted that the primary carer for his father left, and he struggled to find a replacement, and therefore the caregiving burden fell upon him. According to the Applicant, his entire time, energy, and emotional capacity were consumed by the ongoing caregiving crisis, the pressing need to find new employment, and his profound concern for both his parents.

• [20] In relation to the first reason, in Shaw v Australia and New Zealand Banking Group Ltd ('Shaw'), the Full Bench expressed that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves, and that the loss of employment is a serious event in a person's life, but that such responses and consequences are not unusual.[12]

• [21] However, it is to be appreciated that an applicant's medical condition can be so significant that it affects her or his mental capacity to prepare and file an application with the Commission, albeit much may turn on the evidence adduced to support such a proposition. In Underwood v Terra Firma Pty Ltd ('Underwood'), the Full Bench accepted the finding made at first instance that the applicant had failed to positively demonstrate that his depressive illness had impacted his mental capacity so as to prevent him from making the application within 21 days.[13] The Full Bench affirmed the findings that the medical evidence relied upon 'did not positively demonstrate that the Appellant's depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21-day time frame' and that no exceptional circumstances were established.[14]

• [22] In Merhi v Commonwealth ('Merhi'), the Full Bench assessed the applicant's evidence from her treating psychologist concerning her 'major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder' primarily by reference to the psychologist's assessment of the applicant's capacity to act.[15] The Full Bench endorsed the finding at first instance that on the evidence, 'the appellant's mental state did not prevent her capacity to engage in day-to-day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay'.[16]

• [23] In Mamo v ICLED Australia Pty Limited,[17] the following propositions were derived from Shaw, Underwood and Merhi, in addition to the first instance decision of Roberts v Westech IT Solutions Pty Ltd[18]:

a) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);

b) a depressive illness might point towards exceptional circumstances if the illness had a material impact upon the applicant's capacity to lodge the application within the statutory time limit (per Roberts and Underwood);

c) 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 (per Underwood and Merhi); and

d) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).

• [24] In the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish they were prevented from lodging an application due to a medical condition where the employee demonstrates capacity to act by performing other tasks following the dismissal.[19] In this case, there is no probative medical evidence, for example, a medical certificate, showing incapacity at a particular time or times in the delay period, or leading up to the delay period.

• [25] The material relied upon by the Applicant does not establish that the Applicant was so incapacitated from emotional 'duress' that he was unable to file his application under s 365 of the Act within the statutory period and the entirety of the delay period. I am appreciative that the Applicant has experienced a most challenging period, a period that from his dismissal has included the decline in his father's health and the ultimate passing of his father, and the need to provide support to his mother. However, the Applicant's self-assessment of his psychological incapacity is an inadequate basis for arriving at conclusion that the Applicant's mental health was a plausible reason for the entire delay period.

• [26] The Applicant reports having assumed carer responsibilities for his father and his elderly mother. However, the Applicant further notes that during the period of delay he was consumed by the pressing need to find new employment. At hearing the Applicant explained that in the first week after his dismissal, he was focused on using a website to find a job, preparing his curriculum vitae (CV) and utilising Artificial Intelligence (AI) to make himself outstanding (presumedly as a candidate). The Applicant gave evidence that whilst this was his focus in the first week after his dismissal, he stopped seeking work on the further decline in his father's health.

• [27] The Applicant further identified that given his limited experience with legal matters, he sought assistance from one of his neighbours on multiple occasions throughout the process of preparing his application. The Applicant provides no further detail to support that he had multiple meetings with his neighbour nor the timing of those meetings. However, the Applicant further notes that it was during a discussion with this neighbour on 23 September 2025 about a draft of the application, that the neighbour asked if he had submitted the application and clarified that the statutory deadline was 21 calendar days, not business days. The Applicant expressed that this revelation caused him immediate panic as he realised, he had been operating under a critical misconception and was on the verge of missing the deadline entirely.

• [28] Insofar as the Applicant relies upon ignorance of the statutory period, it is important to appreciate that the case law establishes that ignorance of the law does not constitute exceptional circumstances in and of itself.[20] I therefore do not consider that this provides a credible reason for the delay. The Applicant spoke of his use of AI and I consider that it was, at all material times, open to the Applicant to utilise those skills to ascertain with clarity the statutory period.

• [29] In his application, the Applicant acknowledged that he had miscalculated the dates and further identified that his first language was Mandarin, and that as he was not very good with English, he needed help from other people to complete the form, such as Legal Aid, his neighbours and friends. At hearing, the Applicant made no mention of seeking assistance from Legal Aid but referred, in detail, to his reliance on his neighbour. In his submissions, the Applicant expressed that he did not rely upon his English competency as a reason contributing to the delay. At hearing, the Applicant relied on his English competency (or lack thereof) as contributing to the reasons for delay. I consider it well established that decisions of the Commission have concluded that speaking English as a second language may not constitute an exceptional circumstance,[21] and in circumstances where the Applicant was able to use AI to prepare his CV, I am unpersuaded that speaking English as a second language provides a plausible reason for the delay in this case.

• [30] I have considered the delay as the period beyond the 21-day period. Regard has been had to the circumstances from the date the dismissal in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances. Whilst unpersuaded that the Applicant has provided a credible reason for the entirety of the delay period I am willing to accept, even in the absence of probative medical evidence, that a period spent caring for his father followed by the passing of the Applicant's father and the accompanying grief, provides plausible explanation for part of the delay period. I note that it appeared incontrovertible that the Applicant's father had died and had, prior to his death, been plagued with multiple chronic illnesses; no suggestion was made that the Applicant could not be believed on this point. Therefore, on balance, I consider that this factor weighs toward a finding of exceptional circumstances.

• [31] Action taken by the employee to contest the dismissal, other than lodging the general protections dismissal dispute, may favour granting an extension of time.[22] There is no evidence before me to suggest that the Applicant challenged or contested his dismissal. I am therefore satisfied that this factor is neutral in the circumstances.

• [32] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted and therefore consider this criterion to be a neutral factor, noting that the mere absence of prejudice is not a factor that would point in favour of the grant of extension of time.[23]

• [33] The Act requires me to consider the merits of the application in considering whether to extend time.

• [34] In Nulty, the Full Bench of the then Fair Work Australia considered the principles applicable to the extension of time discretion under s 366 of the Act. In that case, the Full Bench said in respect to the merits of an application:

[36] It ought be regarded as well established that on an extension of time hearing it will not be appropriate for the Tribunal 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).

• [35] In Telstra-Network Technology Group v Kornicki,[24] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[25]

• [36] In his application, the Applicant stated, that he was asked to assist them (presumedly the employee complainants) in the fast paced, cold, working environment, and he was trying to assist as quickly as possible to return to his own assigned duties. The Applicant said that in his rush to assist them, he made clear verbal communication, but they did not respond, so he tapped

them to get their attention and to let them know he was ready to assist them. The Applicant noted that he continued working together with them without any incident, and that he did not make any communication that would make them feel uncomfortable. According to the Applicant, they thanked him for his assistance. The Applicant further noted that he felt intimidated and stressed because they (again presumedly the employee complainants) kept asking for assistance in the freezer when he was still carrying out his own duties.

• [37] The Applicant further added that he was not provided with protective personal equipment on his first working day and he never received work boots. Whilst he requested knee pads to work in the freezer, these were not provided. The Applicant said he raised his concerns with his supervisor and the staff about the lack of knee protection and safety boots.

• [38] The Applicant further pressed that he felt subject to discrimination as the people concerned did not like him. The Applicant stated that there had been no account for language barriers, cultural differences and working habits, and they had misinterpreted his intentions which led to this outcome. The Applicant alleged that he was disliked because of his ethnicity, which caused the outcome of losing his position with the Respondent. The Applicant submitted that he felt harshly done by and that all the facts were not taken into consideration. The Applicant noted that there was no prior disciplinary action or complaint, and he should be given a chance to improve himself.

• [39] The Respondent, as is evident in its correspondence to the Applicant, considered that the Applicant's misconduct during his period of employment posed serious concerns and health and safety risks towards the Respondent's employees and contractors, hence warranting his dismissal.

• [40] In my view, whilst the Applicant has established on the face of it that the substantive application is arguably not without merit, it remains that there are contested issues of fact, and it is 'not appropriate for the Commission to resolve contested issues of fact going to the ultimate merits' for the purpose of determining whether to grant an extension of time under s 366(2) of the Act.[26] I have therefore concluded that this factor is neutral in the circumstances.

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

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

[C]ases 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.[27]

• [42] The Commission's consideration of the factor under s 366(2)(e) of the Act is concerned with the consistent application of principles in applications of this kind.[28] This ensures fairness as between an applicant and other persons in a similar position. However, applications for an extension of time generally turn on their own facts, and it follows that in the circumstances of this case, the consideration of fairness between the Applicant and persons in a similar position is a neutral consideration.

• [43] The conclusion as to the existence of exceptional circumstances will turn on a consideration of all the relevant matters and the assignment of appropriate weight to each.

• [44] In the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am, on balance, satisfied that there are exceptional circumstances as contemplated by s 366(2) of the Act and that it is reasonable to exercise discretion to allow an extension of time.

[1] Fair Work Act 2009 (Cth) s 366(1)(b) and (2).

[2] [2019] FWCFB 2384.

[3] [2011] FWAFB 975 ('Nulty').

[4] [2018] FWCFB 901 ('Stogiannidis').

[5] [2010] FWAFB 7251.

[6] Pottenger v Department of Caffeine [2018] FWC 3403, [31].

[7] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9].

[8] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

[10] Long v Keolis Downer [2018] FWCFB 4109, [40].

[11] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12].

[13] [2015] FWCFB 3435, [16].

[15] [2020] FWCFB 3523, [8], [37]-[39].

[17] [2021] FWC 3903, [25].

[18] [2014] FWC 4226.

[19] See Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB 5645, [15].

[21] Racic v Delron Cleaning Pty Ltd [2020] FWC 5526; Dinh v Integrated Packaging (Aust) Pty Ltd [2020] FWC 5760; Samura v Compass Group [2021] FWC 2749; Sidhu v L'Arthur Transport Pty Ltd [2022] FWC 2450.

[22] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.

[24] (1997) 140 IR 1.

[27] [2015] FWC 8885, [29].

[28] GHD Pty Ltd v Black [2023] FWCFB 38, [94].

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