1 Fair Work Act 2009 s.365 – General protections Mrs Karen Ketelaar v Ramsay Health Care Australia Pty Limited (C2025/13568) DEPUTY PRESIDENT CLANCY MELBOURNE, 30 APRIL 2026 Application made under s.365 –no dismissal – even if deemed there was a dismissal, application was filed 31 days out of time and no extension of time granted – application dismissed. [1] On 29 December 2025, Mrs Karen Ketelaar made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Act) by lodging a Form F8 – General Protections Application Involving Dismissal (Form F8) in which she alleges that she was dismissed in contravention of Part 3-1 of the Act. While the respondent named in the Form F8 was The Trustee for Beleura Hospital Unit Trust, subsequent confirmation was received in the Form F8A – Response to General Protections Application (Form F8A), that the correct legal name for the respondent was Ramsay Health Care Australia Pty Limited T/A Beleura Private Hospital Pty Ltd. Accordingly, pursuant to s.586 of the Act, I have determined to correct the name of the respondent to Mrs Ketelaar’s s.365 application so that it is recorded as being Ramsay Health Care Australia Pty Limited (Respondent) [2] In Coles Supply Chain Pty Ltd v Milford (Milford),1 the Full Court of the Federal Court stated: “To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply.”2 [3] The Respondent asserted that Mrs Ketelaar was never employed by it and accordingly, there was no dismissal. As a person must have been dismissed in order to be entitled to make a s.365 application, I must determine whether Mrs Ketelaar has been dismissed by the Respondent before exercising powers under s.368 to deal with the dispute about whether there has been a contravention of the general protections provisions. Section 12 of the Act defines what is meant by the term “dismissed” by stating “see section 386”. Section 386(1) of the Act relevantly defines the meaning of “dismissed” as follows: “386 Meaning of dismissed [2026] FWC 1574 DECISION [2026] FWC 1574 2 [4] A person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.” [5] While s.386 appears within Part 3-2 of the Act, the definition is applied generally, including when determining whether a person “has been dismissed” for the purposes of s.365(a).3 [6] I am not satisfied that Mrs Ketelaar was dismissed because while she was offered and accepted a graduate nursing position, Mrs Ketelaar did not commence employment with the Respondent. As no employment commenced, Mrs Ketelaar cannot have been dismissed. It may also be noted that Mrs Ketelaar has neither asserted that she was an employee of the Respondent,4 nor asserted that she was dismissed from employment.5 While Mrs Ketelaar may assert that the Respondent has breached an agreement because it withdrew an offer of a graduate nursing position on 7 November 2025, the effect of my conclusion that she was not dismissed is that her application does not meet the requirements of s.365 of the Act and the Commission does not have jurisdiction to deal with it. I am therefore satisfied that it is open to me to dismiss Mrs Ketelaar’s s.365 application on the basis that there has been no dismissal. [7] If I am wrong in reaching this conclusion, it may be observed that the Full Court in Milford also observed the following: [59] As discussed later in these reasons, there may be cases where the FWC may avoid drawing a conclusion as to whether or not an employment relationship has ended in circumstances that amount to a dismissal, and proceed to determine an application for an extension of time on the assumption that it has so ended. But on an application for an extension of time, ascertainment of the length of the delay between the date that the relationship ended and the expiration of the statutory time limit must be identified. … [86] In an appropriate case, it may also be permissible for the FWC to determine that the employment came to an end on a particular date without deciding whether or not the applicant was “dismissed” with the meaning of s 386 of the FW Act. In such a case it may be permissible to refuse to grant an extension of time even assuming, for the employee’s benefit, that there was indeed a dismissal. [8] These observations from Milford were considered by a Full Bench of the Commission in Graham Taylor v Department of Justice and Community Safety6 in the context of an unfair dismissal application made under s.394 of the Act. I consider that it can be discerned from the observations of the Full Court in Milford that an “appropriate case” in which it will be permissible for the Commission to assume that employment came to an end on a particular date, without deciding whether or not the applicant in question was “dismissed” with the meaning [2026] FWC 1574 3 of s.386 of the Act, will be one where there may have been a dismissal, notwithstanding the purported employer maintains there has been no termination on its initiative. [9] In this case, there appears to be no dispute that the Respondent advised Mrs Ketelaar, on 7 November 2025, that it would not be proceeding with the offer of a graduate nursing position. While Mrs Ketelaar spent the ensuing period until 20 November attempting to persuade the Respondent otherwise, the Respondent’s position did not change. I consider that Milford leaves it open me to proceed to determine Mrs Ketelaar’s application for an extension of time assuming that there was a dismissal on 7 November 2025. In such a scenario, the 21- day period after 7 November 2025 ended at midnight on 28 November 2025, with the result that Mrs Ketelaar’s s.365 application, lodged on 29 December 2025, was made 31 days late and she requires an extension of time.7 [10] 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). As to the reason for the delay (s.366(2)(a)), I have noted above that Mrs Ketelaar engaged in the dialogue with the Respondent during the period 7 November 2025 – 20 November 2025. While she has contended that the Respondent’s decision to withdraw the offer did not appear to have been final during this time, this assertion is disputed by the Respondent. Regardless, I consider that any doubt Mrs Ketelaar may have had regarding her status was dispelled by 20 November 2025, at which point she still had a further 8 days to make an application within time. [11] I accept that Mrs Ketelaar may not have had prior experience in dealing with the Commission’s processes or knowledge of the 21-day time period but it is well established that ignorance of one’s rights and the operation of the Act will not usually provide an acceptable explanation for a delay in lodging an application within the time prescribed,8 and that unfamiliarity is not exceptional. [12] I have also noted Mrs Ketelaar has claimed that with her dismissal having occurred in the lead up to Christmas and the New Year, her capacity to access and obtain advice was limited. In addition to observing that the 21-day time period ended at midnight on 28 November 2025, I would observe that having to navigate the Christmas/New Year period is not exceptional and would add that s.365 applications can be, and are routinely, made by reference to the Commission’s website. Indeed, the website is replete with material designed to assist members of the public to obtain assistance and prepare for and lodge applications. [13] As to Mrs Ketelaar’s reference to having been denied assistance by the ANMF because she was not an ANMF member, I do not consider that this weighs in her favour when it comes to an assessment of her reasons for the delay. Trade Unions invariably only offer advice and representation to financial members. [14] Having regard to all the circumstances, I consider the reasons for the Applicant’s delay weigh against a conclusion that there are exceptional circumstances in this case. [15] As to the other mandatory considerations, I accept that in addition to lodging this application, Mrs Ketelaar took other action which may be characterised as disputing the alleged dismissal when she engaged in the dialogue with the Respondent during the period 7 November [2026] FWC 1574 4 2025 – 20 November 2025 and sought to obtain assistance from the ANMF (s.366(2)(b)). This weighs in favour of an extension of time. [16] I am not, however, persuaded there is any material prejudice to the Respondent in this case, including prejudice caused by the delay (s.366(2)(c)), and nor do I consider, having reviewed the submissions made by the parties in relation to s.366(2)(e), that there are any matters that are relevant to fairness between Mrs Ketelaar and other persons in a like position. I therefore consider these two factors to be neutral. [17] As to the merits (s 366(2)(d)), Mrs Ketelaar contends that having made enquiries and expressed views in relation to proposed employment conditions, the offer of the graduate nursing position was withdrawn by the Respondent. For its part, the Respondent asserts that Mrs Ketelaar was not offered a contract of employment because she did not agree to the conditions of the graduate nursing role and, in particular, the requirement to work as a 0.8 FTE. 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. [18] When the lateness of Mrs Ketelaar’s application is being considered, it is relevant to bear in mind that 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”.9 The requirement also 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 if the Commission considers that it is “fair” to do so. [19] Taking into account all of the matters in s 366(2), I am not satisfied that there are exceptional circumstances in this case. As such, there is no basis for the Commission to extend time and I would therefore dismiss Mrs Ketelaar’s s.365 application on this basis as well. [20] In conclusion, as I am not satisfied that Mrs Ketelaar was dismissed, her application does not meet the requirements of s.365 of the Act and must be dismissed. In the alternative, if it was considered that the Commission must determine whether or not Mrs Ketelaar should be granted an extension of time, I am not persuaded that there are the requisite exceptional circumstances required to enliven the Commission’s discretionary power to do so, based on my findings in relation to the s.366(2)(a) – (366(2)(e) considerations. Mrs Ketelaar’s s.365 application is therefore dismissed. DEPUTY PRESIDENT Appearances: [2026] FWC 1574 5 K Ketelaar on her own behalf. S Moody of Lander & Rogers for Ramsay Health Care Australia Pty Limited. Hearing details: 2026. Melbourne (by Video using Microsoft Teams). April 24. Printed by authority of the Commonwealth Government Printer <PR799622> 1 (2020) 279 FCR 591. 2 Ibid at [67] 3 See for example Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591 at [14]-[15] and Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 at [12]. 4 Digital Hearing Book (DHB) 11 at [1]. 5 DHB 13 at [11]. 6 [2025] FWCFB 173. 7 Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591 at [59] and Graham Taylor v Department of Justice and Community Safety [2025] FWCFB 173 at [66]. 8 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14]. 9 Mohammed Ayub v NSW Trains [2016] FWCFB 5500 at [36].