[2026] FWC 1300 The attached document replaces the document previously issued with the above code on 15 April 2026 The following details have been added to the decision: a. MNC - [2026] FWC 1300; b. Print Number - PR798645. Jules Gobran Associate to Deputy President Cross Dated 15 April 2026 1 Fair Work Act 2009 s 365—General protections Angela Paraskeva v Karimbla Constructions Services (NSW) Pty Ltd (C2025/11756) DEPUTY PRESIDENT CROSS SYDNEY, 15 APRIL 2026 Application to Deal with Contraventions Involving Dismissal – Jurisdictional Objection Raised - Application was Filed Out of Time – Whether any Exceptional Circumstances Apply – Consideration of Section 366(2) of The Fair Work Act 2009 (Cth) – No Exceptional Circumstances Apply – Application is Dismissed. Introduction [1] Angela Paraskeva (‘the Applicant’) made an application to the Fair Work Commission (‘the Commission’) pursuant to section 365 of the Fair Work Act 2009 (Cth) (‘the Act’), alleging contraventions of the general protections provisions in Part 3-1 of the Act in connection with the cessation of her employment at Karimbla Constructions Services (NSW) Pty Ltd (‘the Respondent’). [2] The application was lodged on 21 November 2025. [3] The Respondent objects to the Commission dealing with the application on jurisdictional grounds, contending that the application was filed outside the 21-day statutory time limit prescribed by section 366(1) of the Act, and that there are no exceptional circumstances under section 366(2) of the Act warranting an extension of time. [4] The issue for determination is whether the Commission should exercise its discretion to grant the Applicant a further period within which to make her application pursuant to section 366(2) of the Act. Procedural Background [5] The Applicant lodged her Form F8 - General protections dismissal application on 21 November 2025 (‘Form F8’). [2026] FWC 1300 [Note: An appeal pursuant to s.604 (C2026/5080) was lodged against this decision.] DECISION [2026] FWC 1300 2 [6] In the Form F8, the Applicant identified that her employment commenced on 27 January 2020, and that the cessation of her employment took effect on 11 August 2025. [7] The Form F8 included an explanation for the late lodgement, asserting that the Applicant acted promptly and in good faith at the time of her dismissal by lodging an unfair dismissal application within the required timeframe because she genuinely believed that was the correct jurisdiction for her matter. Only after the Applicant received the Respondent’s response did she develop uncertainty about whether the matter should proceed under the unfair dismissal or the general protections provisions of the Act. [8] On 20 January 2026, the Respondent filed a Form F8A – Response to a general protections dismissal application and raised the jurisdictional objection. Relevantly, the Respondent asserted that the application was lodged out of time and there are no exceptional circumstances justifying an extension. Background [9] On 9 August 2025, the Respondent terminated the Applicant’s employment. On 12 August 2025, Ms Paraskeva filed an application for an unfair dismissal remedy with the Commission. [10] On 25 September 2025, the Respondent filed a Form F3 Response to the Applicant’s application. [11] The Applicant was legally represented from 25 September 2025 to 2 October 2025. [12] On 29 September 2025, the Applicant, the Respondent, and the Respondent’s legal representatives attended a conciliation conference facilitated by the Commission (‘the Conciliation’). The Conciliation was unsuccessful, and the matter was ultimately referred to Deputy President Boyce for determination. [13] Also on 29 September 2025, the Applicant filed material in her unfair dismissal proceedings stating, ‘I must clarify that this matter goes beyond unfair dismissal. It is, in fact, a case of unlawful dismissal’. [14] On 22 October 2025, Deputy President Boyce issued directions in the unfair dismissal matter for the filing of submissions and witness statements (‘the Directions’). The matter was listed for Hearing on 11 December 2025. Unknown 3 [15] The Applicant failed to comply with the Directions. On 6 November 2025, Deputy President Boyce’s Chambers sent an email to the Applicant in relation to her non-compliance with the Directions. At 2:34 pm on the same day, the Applicant requested a short extension to comply with the Directions. [16] On 7 November 2025, Deputy President Boyce granted the Applicant until 3:00 pm that day to file her outline of submissions and any witness statements she sought to rely upon in relation to her unfair dismissal application. The Applicant did not comply with the amended directions. [17] On 7 November 2025 at 5:05 pm, Deputy President Boyce dismissed the Applicant’s unfair dismissal application based on her failure to comply with the Directions (the Dismissal Order). The Applicant disputed that she failed to comply with Directions, and a Hearing to consider the revocation of the Dismissal Order was held before Deputy President Boyce on 13 November 2025 (the Hearing). [18] In correspondence prior to the Hearing, and during the Hearing, the Applicant raised that she intended to file general protections claim. That led to the following exchange on transcript:1 MR LORRAINE: I’m not quite sure whether to mention this, your Honour, but where does the applicant stand in relation to the email of this morning about pursuing the matter through a different avenue? MS PARASKEVA: Is he talking to - - - THE DEPUTY PRESIDENT: Yes. MS PARASKEVA: I do want to do that. I want to do the unlawful, because I got told that it’s the right path, and when we were on the phone us three on conciliation, I don’t know if it was you on the phone, the person before that we were talking and I asked them when they were on there if I could take the unlawful, because the bullying and that falls under the unlawful route. If it’s going to help my case more I’m happy to - - - THE DEPUTY PRESIDENT: Well, there’s a 21 day time limit. So you’d need to get advice on that, but these applications can’t be swapped out. They have to be - - - MS PARASKEVA: Yes. The man told me that on the phone too. THE DEPUTY PRESIDENT: Yes. You would have to file a fresh application. MS PARASKEVA: You have to do a whole new - yes. [2026] FWC 1300 4 THE DEPUTY PRESIDENT: And then you’d have to - you will be out of time. So you run the risk that time wouldn’t be extended, but it’s unlikely that would come to me. MS PARASKEVA: Okay. THE DEPUTY PRESIDENT: You also can’t have two applications on at the same time, which means you would really have to discontinue this application, but again you will need to get your own advice on all that. But if you’re out of time your case can’t proceed. In this case you are within time. MS PARASKEVA: Okay. THE DEPUTY PRESIDENT: So you need to take that into account. So do you want some time to think about that? MS PARASKEVA: Maybe, yes, please. THE DEPUTY PRESIDENT: All right. Maybe if the applicant advises chambers of her position as to whether she wishes to discontinue these proceedings or press on with these proceedings within seven days, and then if she wishes to press on with these proceedings then I can deal with the issue of directions and hearing dating in chambers by communication to the parties via email. Is that suitable to you, Mr Lorraine? MR LORRAINE: Yes, your Honour, thank you. THE DEPUTY PRESIDENT: Ms Paraskeva, do you understand what I just said? So you’ve got seven days. If you want to discontinue these proceedings you have got a file a notice of discontinuance. MS PARASKEVA: Yes. THE DEPUTY PRESIDENT: And then in relation to any other proceedings you take as I said there’s a 21 day time limit. MS PARASKEVA: Okay. THE DEPUTY PRESIDENT: You would need to have good reasons for time to be extended. It’s called exceptional circumstances. But you would have to get your own advice as to whether you want to file those proceedings and have an extension of time argument, and then go from there or whether you press on with these proceedings. But, yes, you can’t sort of swap out one for the other. They’re both to be fresh applications. [Emphasis added] [19] On 20 November 2025, the Applicant lodged a Form F50 - Notice of Discontinuance with the Commission discontinuing her application for an unfair dismissal remedy. The Unknown 5 Applicant lodged her general protections application on 21 November 2025, being 80 days outside of the 21-day statutory time limit. Legislative Framework [20] Section 366(1) of the Act relevantly provides that an application under section 365 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under section 366(2) of the Act. [21] Section 366(2) of the Act provides that the Commission may allow a further period for the application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the following matters: (a) the reason for the delay; (b) any action taken by the person to dispute the dismissal; (c) prejudice to the employer (including prejudice caused by the delay); (d) the merits of the application; and (e) fairness as between the person and other persons in a like position. [22] The statutory criteria are mandatory considerations. The discretion under section 366(2) of the Act is evaluative. The task is not to mechanically ‘tick off’ each criterion, but to weigh all relevant circumstances, informed by those criteria, to determine whether exceptional circumstances exist and whether an extension should be granted. [23] The authorities recognise that ‘exceptional circumstances’ does not mean that the circumstances must be unique or unprecedented. Rather, the circumstances must be such as to take the case out of the ordinary course, bearing in mind that the legislature has imposed a short statutory time limit and that extensions are not to be granted as a matter of routine. [24] It is accepted that prejudice under section 366(2)(c) of the Act requires something more than the loss of the benefit of the time limit itself. The employer must ordinarily demonstrate some practical detriment (for example, unavailability of witnesses, loss of documents, or forensic disadvantage) caused by the delay. [25] The ‘merits’ factor requires only a preliminary assessment. The Commission does not finally determine the substantive application at this stage. Rather, the Commission considers whether the claim appears arguable or whether it is plainly hopeless or manifestly untenable on the material before it. Consideration [2026] FWC 1300 6 [26] The threshold question is whether the Commission is satisfied that there are exceptional circumstances that applied in the Applicant’s circumstances when filing her general protections application with the Commission. [27] Exceptional circumstances is an evaluative concept. It requires a consideration of all of the circumstances, guided by the statutory criteria in section 366(2) of the Act. While each criterion must be considered, no single factor is necessarily determinative. The ultimate question is whether, having regard to the circumstances, the delay should be excused and a further period allowed. [28] A short delay does not of itself establish exceptional circumstances, but it may lessen the weight to be given to prejudice and may make it more likely that an otherwise adequate explanation will justify an extension. Conversely, where the explanation for delay is weak or unsupported, even a short delay may not be excused. Section 366(2)(a) – The Reason for the Delay [29] As noted above, the Applicant’s cessation of employment took effect on 11 August 2025. The 21-day period for lodging an application under section 365 of the Act therefore expired on 1 September 2025. The application was lodged on 21 November 2025. It was therefore lodged 80 days late. [30] The Applicant submitted that she always believed her dismissal involved unlawful conduct and referred to the Conciliation and her materials filed on 29 September 2025, during the unfair dismissal proceedings which stated ‘I must clarify that this matter goes beyond unfair dismissal. It is, in fact, a case of unlawful dismissal’. The Applicant submitted the delay arose from a genuine procedural reassessment while she was already engaged in active unfair dismissal proceedings, not from inaction. [31] The Applicant’s decision not to pursue general protections claim from the outset was her forensic decision and does not amount to an exceptional circumstance. It is clear on the evidence that from the time of her dismissal the Applicant was aware of the availability of the general protections claim but chose to not, at first, pursue that claim. It is relevant that at the time of the Conciliation, where the making of a general protections claim was discussed, the Applicant was legally represented. [32] The Applicant was also fully aware that the change in applications was not a ‘procedural reassessment’ but constituted a distinct change in application for which an extension of time would be required. [33] In all of the circumstances, I am not satisfied that the Applicant has established that she was not in any way precluded from lodging a general protections application within the Unknown 7 statutory period. The explanation for delay is therefore not compelling. This factor weighs against granting an extension. Section 366(2)(b) – Any Action Taken by the Person to Dispute the Dismissal [34] The Applicant relies on the unfair dismissal application, and the Conciliation, and attempts to comply with the Directions, as steps taken to challenge the dismissal. [35] I accept that these matters demonstrate that the Applicant disputed the circumstances of the cessation of her employment and wished to challenge the Respondent’s position. However, the Applicant chose the separate and distinct course of the unfair dismissal application. [36] In those circumstances, I consider that this is a neutral factor. Section 366(2)(c) – Prejudice to the Employer (Including Prejudice Caused by the Delay) [37] The Respondent submitted it had incurred time, cost, and inconvenience defending the unfair dismissal application, including in preparing for and attending the Conciliation, and the Hearing before Deputy President Boyce on 13 November 2025. [38] While it is clear that the Respondent had been put to cost by the Applicant’s various choices of forum, in the circumstances, I treat prejudice as a neutral factor. Section 366(2)(d) – The Merits of the Application [39] There are factual contests about the circumstances of separation and the alleged reasons for adverse action. This is general protections claim. I cannot make any findings on contested matters without a hearing on the evidence. [40] In Kyvelos v Champion Socks Pty Ltd, The Full Bench of the Australian Industrial Relations Commission stated at [14]: ‘It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues’.2 [41] In the matter of Kornicki v Telstra-Network Technology Group (‘Kornicki’) a predecessor of the Commission considered the principles applicable to the extension of time discretion under section 170CE(8) of the Workplace Relations Act 1996 (Cth).3 In Kornicki , the Full Bench states: [2026] FWC 1300 8 ‘The merits of the substantive 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.’4 [42] I adopt this reasoning of the Full Bench of the former Commission in relation to the consideration of merits. I consider that this is a neutral factor. Section 366(2)(e) – Fairness as Between the Person and Other Persons in Alike Position [43] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts. [44] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration. Consequently, no weight can be given to this consideration. Conclusion Regarding Out of Time [45] As is evident from the analysis above, the matter that was the subject of submission, consideration, and apportionment of any significant weight, being the absence of any acceptable reason for delay, weighed in favour of a conclusion there are not exceptional circumstances. [46] None of the factors weigh against such a conclusion. [47] Having regard to the matters I would have been required to take into account under section 366(2) of the Act, I am not satisfied that there would have been exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Disposition [48] In the circumstances, I am not satisfied that there are exceptional circumstances within the meaning of section 366(2) of the Act. Unknown 9 [49] The Applicant’s application under section 365 of the Act was lodged outside the 21-day statutory time bar prescribed under section 366(1) of the Act and no extension of time will be granted. [50] The application is therefore dismissed, having been made out of time. DEPUTY PRESIDENT Appearances: Ms A Paraskeva, appearing as the Applicant. Ms E Aitken, of counsel, for the Respondent. Instructed by Harmers Workplace Lawyers LP Hearing details: 10 March 2026 Fair Work Commission Final written submissions: Applicant’s Submissions filed on 9 February 2026. Respondent’s Submissions filed on 19 February 2026. Applicant’s Reply Submissions filed on 25 February 2026. Printed by authority of the Commonwealth Government Printer <PR798645> 1 Transcript PN 157 to 177. 2 (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 [14]. 3 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C (‘Kornicki’). 4 Ibid.