1 Fair Work Act 2009 s.365 – General protections Kelly Tofaili v Iclean Facility Services & Willem Flach & Anor (C2026/364) DEPUTY PRESIDENT CLANCY MELBOURNE, 28 APRIL 2026 Application made under s.365 – extension of time – application dismissed. [1] Ms Kelly Tofaili has made an application under s.365 of the Fair Work Act 2009 (Act) in which she alleges that she was dismissed by Iclean Facility Services, Willem Flach and Jennifer Flach (Respondents) 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 Tofaili’s dismissal took effect on 15 December 2025. The 21-day period ended at midnight on Monday 5 January 2026. The application was lodged on 10 January 2026. For the application to proceed, Ms Tofaili 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 ss.366(2)(a) to (e). [2] It is noted that Ms Tofaili lodged an unfair dismissal application with the Commission on the same day as she was notified of her dismissal and that she subsequently discontinued this during a telephone call she made to the Commission on 18 December 2025. The Commission’s file note of that telephone conversation recorded that Ms Tofaili advised that she was seeking legal advice and was looking to lodge the Form F8- General protections application involving dismissal (Form F8). At the determinative conference, Ms Tofaili said that she was informed that the Commission would not be processing new applications until 19 January 2026 but she also confirmed that as of 18 December 2025, she was aware of the 21- day time limit. [3] As to the reasons for the delay (s.366(2)(a)), Ms Tofaili said was she distressed and emotionally overwhelmed. While I accept that Ms Tofaili experienced a negative reaction as a result of her dismissal, these things are not, of themselves, unusual. Stress, anxiety, shock and a degree of trauma from a dismissal are not uncommon reactions. Likewise, it is not uncommon for a dismissal to have a negative financial impact that becomes a source of stress and hardship. While Ms Tofaili also stated that she was experiencing ongoing health impacts from cancer, she advised that while she attended two oncology appointments during the period following her dismissal, she was not required to undergo treatment. It was not, however, suggested by Ms Tofaili, and nor am I persuaded, that she was experiencing health issues that left her debilitated to such an extent that she could not take the necessary steps to make a general protection [2026] FWC 1531 DECISION [2026] FWC 1531 2 application involving dismissal within the 21-day period following her dismissal. In this regard, I note that in addition to her discussion with the Commission on 18 December 2025, Ms Tofaili had also been able to source some advice from Legal Aid on that day. Further, while Ms Tofaili cited the closure of many sources of advice and assistance nearing the Christmas and New Year period, this is not exceptional. It is a dynamic confronting any person notified of their dismissal in close proximity to the Christmas and New Year period each year. Ultimately, Ms Tofaili stated that the delay was unintentional and she acknowledged the lateness of her application was a result of her own error. In my assessment, the reasons given by Ms Tofaili for the delay weigh against a conclusion that there are exceptional circumstances in this case. [4] As to the other mandatory considerations, I am satisfied that Ms Tofaili disputed the Respondents’ decision to dismiss her when she was notified of her termination and I have noted that she sent an email request “to speak to HR” (s.366(2)(b)). These actions weigh marginally in favour of an extension of time. I do not consider there to be any prejudice to the employer associated with the relatively short delay in this case (s.366(2)(c)) and nor do I consider that there are any matters that are relevant to fairness between Ms Tofaili and other persons in a like position (s.366(2)(e)). I consider these to be neutral factors. [5] In relation to the merits (s.366(2)(d)), Ms Tofaili asserts that her illness with cancer and her medically supported absences lay behind the decision of the Respondents to dismiss her. In essence, Ms Tofaili asserts that her dismissal was based on a discriminatory ground and as a result of her exercising her workplace right to take leave. The Respondent asserted that in addition to having received negative feedback from clients, it had its own concerns about Ms Tofaili’s performance and poor attendance record that were unrelated to her medical condition and legitimately taken personal leave. I am unable to make any firm assessment of the merits at this stage. They would depend on factual findings made by a court after hearing the evidence. Because I do not consider the merits to tell for or against an extension of time, I regard them as a neutral consideration. [6] The requirement that there be ‘exceptional circumstances’ before time can be extended under s.366(2) of the Act has been described by a Full Bench of this Commission as imposing a “very high bar…required to be surmounted in order to obtain an extension of time to lodge an application”.1 This requirement contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so. Taking into account all of the matters in s 366(2), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is therefore dismissed. DEPUTY PRESIDENT Appearances: [2025] FWC 1531 3 K Tofaili on her own behalf. S Avramov and W Flach for the Respondents. Hearing details: 2026. Melbourne (by Video using Microsoft Teams). March 26. Printed by authority of the Commonwealth Government Printer <PR799206> 1 Mohammed Ayub v NSW Trains [2016] FWCFB 5500 at [36].