s.365 - General protections

Application to deal with contraventions involving dismissal - application filed out of time - no exceptional circumstances - application dismissed.

• [1] Yunqing Kai has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act) in which she alleges that she was dismissed by the respondent, Anglican Diocese of Melbourne in contravention of Part 3-1 of the Act. Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2). Ms Kai's dismissal took effect on 16 May 2025. The 21-day period ended on 6 June 2025. The application was lodged on 12 June 2025. For the application to proceed, Ms Kai requires an extension of time. The Commission may allow a further period only if it is satisfied that there are exceptional circumstances, taking into account the matters in s 366(2)(a) to (e) of the Act.

• [2] As to the reason for the delay (s 366(2)(a)), Ms Kai said that within two weeks of her dismissal, she experienced significant physical and emotional distress including anxiety and depression. Ms Kai said that this required medical attention, and she was admitted to hospital on two occasions. In support of this contention, Ms Kai relies upon (a) a payment notice from Ambulance Victoria in respect of services provided on 16 May 2025 (the day of dismissal); (b) a medical certificate confirming that Ms Kai presented to Box Hill hospital on 16 May 2025 and advising that Ms Kai was unfit for her usual activities for a single day on 16 May 2025; and (c) a medical certificate confirming that Ms Kai presented to Box Hill hospital on 27 May 2025 and advising that Ms Kai was unfit for her usual activities for a single day on 27 May 2025.

• [3] Ms Kai further said that she was advised by the respondent that she had 21 business days to lodge the application in the Commission. Ms Kai said that she was unaware that the 21-day time limit applied to calendar days. Ms Kai said that this resulted in her belief that she had more time within which to seek assistance. Ms Kai said that she attempted to obtain legal advice but encountered delays due to "limited appointment availability, financial hardship and logistical challenges."[1] Ms Kai said that once she became "fully aware"[2] of the correct deadline, she acted promptly to lodge the application without further delay.

• [4] Ms Kai said that she made efforts to resolve the matter internally first,[3] demonstrated by her "active communication"[4] with the respondent in an effort to resolve the matter informally and in good faith. Ms Kai said that she had hoped to avoid formal legal proceedings, but this contributed to the delay in lodging the application. Ms Kai further said that she recently received upsetting news concerning her father's health, which has had a profound impact upon her.

• [5] At the outset, I acknowledge Ms Kai's feelings of distress following the termination of her employment. Both the 16 May and 27 May 2025 medical certificates apply for a single day, and I have taken these certificates into account. However, the Commission will not count 16 May 2025 in the 21-day calculation, this being the date of dismissal. As to the 27 May 2025 medical certificate, this does not explain the nature of any health condition Ms Kai contends she was suffering from. Nor does it specify that any such health condition was ongoing, such that Ms Kai was incapacitated beyond 27 May 2025. The medical evidence does not support a conclusion that Ms Kai's health (individually, or in combination with the other matters relied upon) prevented her from lodging the application in the Commission at any earlier time. Accordingly, I am not persuaded that Ms Kai's health following the dismissal provides an acceptable or reasonable explanation for the delay.

• [6] I reject Ms Kai's suggestion that the delay in lodgment was caused by her employer or any alleged challenges associated with obtaining a lawyer. The Commission is very accessible to the general public. Lawyers are not needed in order to complete the short, simple form F8. The Commission's website provides a range of information addressing the lodgment of applications, including in relation to calculating the timeframes within which to lodge them. The termination letter[5] makes it clear that Ms Kai's last day of employment was 16 May 2025 (with a payment in lieu of notice) and I reject that the termination letter "states" that the dismissal took effect on 30 May 2025 as Ms Kai contends.[6]

• [7] Nor do I accept that Ms Kai's attempts to resolve the matter informally with the respondent provides an acceptable or reasonable explanation for the delay. It was open to Ms Kai to engage directly with the respondent while simultaneously attending to lodgment of the application. While I accept that the news of Ms Kai's father's health condition would have been upsetting, there is no material before the Commission to support a conclusion that this information became known to Ms Kai in the relevant period, nor that it prevented or seriously impeded the possibility of timely lodgment of the application. In my assessment, the reasons for delay weigh against a conclusion that there are exceptional circumstances in this case.

• [8] As to the other mandatory considerations, I accept that Ms Kai took other action to dispute the dismissal directly with the respondent[7] (s 366(2)(b)). This weighs marginally in favour of an extension. I do not consider there to be any prejudice to the respondent associated with the relatively short delay in this case (s 366(2)(c)), nor do I consider that there are any matters that are relevant to fairness between Ms Kai and other persons in a like position (s 366(2)(e)). I consider these to be neutral factors.

• [9] As to the merits (s 366(2)(d)), Ms Kai said that her dismissal was unjust and was not based on valid or lawful reasons. Ms Kai said that she was not given a fair opportunity to respond to the allegations and was threatened by the respondent. Ms Kai said that she was dismissed for exercising her workplace rights including making a formal complaint about unsafe working conditions and requesting flexible work due to illness. Ms Kai also said that she experienced differential treatment based on her medical condition and religion.[8]

• [10] The respondent denies that Ms Kai can establish a contravention of the general protections provisions. It contends that Ms Kai's dismissal was a genuine redundancy, demonstrated by the matters set out in the termination letter. It submits that it holds no record of any complaint by Ms Kai or a request for flexible working arrangements.

• [11] The parties hold substantially different views as to the matters that preceded the dismissal. The allegations turn on contested points of fact, which have not been the subject of evidence before me or tested under cross-examination. Accordingly, I am unable to form a concluded view about these matters. The merits of the matter would also depend on findings made by a court after hearing the evidence. In the circumstances, I regard the merits of Ms Kai's substantive general protections application to be a neutral factor in my assessment of whether to grant an extension of time.

• [12] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s 366(2), I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

• [13] As I am not satisfied that there are exceptional circumstances, the power to extend time is not enlivened. Ms Kai's application is dismissed.

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