1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Mrs Narelle Wild v Hireup Pty Ltd (C2026/844) COMMISSIONER P RYAN SYDNEY, 1 MAY 2026 Application to deal with contraventions involving dismissal – application out of time – circumstances not exceptional – application dismissed [1] This decision concerns an application by Mrs Narelle Wild (Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (Cth) (FW Act) (Application). [2] The Applicant states that her employment with Hireup Pty Ltd (Hireup) was terminated with effect from 16 January 2026. The Application was lodged on 10 February 2026. [3] Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.366(2). The period of 21 days ended at midnight on 6 February 2026. Therefore, the Application was lodged 4 days outside the 21-day period. The Applicant asks the Commission to allow a further period for the Application to be made. [4] Hireup opposes the Application on the grounds that it did not dismiss the Applicant and that the Application was not made within 21 days of the cessation of the Applicant’s employment. [5] The matter was heard on 27 March 2026. I exercised my discretion to grant permission to Hireup to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was self-represented. Hireup was represented by Mr D Delimihalis of counsel. [6] For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.366(2). [2026] FWC 1584 DECISION [2026] FWC 1584 2 Relevant Background [7] On 11 December 2025, the Applicant sent correspondence to Hireup raising concerns about structural and governance issues that she alleged had prevented her from performing her role as Care Manager safely and effectively. The Applicant concluded that correspondence by stating: Given the ongoing misalignment and the impact this has on my ability to perform the role as intended, I am seeking HR support to move toward a supported and fair separation arrangement. Remaining in the current model is not viable. [8] Following receipt of that correspondence, Hireup investigated the matters raised by the Applicant. [9] On 17 December 2025, the Applicant met with Hireup to discuss her concerns. During this meeting, the Applicant provided clarification about her request for a supported and fair separation. [10] Over 17-18 December 2025, the Applicant and Hireup engaged in negotiations regarding an agreed separation. The negotiations were conducted over email and the emails were placed into evidence. [11] Hireup was open to an immediate separation in which the Applicant would not be required to work out any notice period, that it would pay the Applicant statutory entitlements and a payment in lieu of/equivalent to notice. Hireup’s proposal was subject to the parties entering into a deed of release which contained all of the ‘usual’ terms. [12] The Applicant took issue with that proposal and argued that she was entitled to receive payment in lieu of notice whether she entered into the deed of release or not. [13] Hireup advised the Applicant that it was only required to provide notice or payment in lieu if it terminated the Applicant’s employment. Hireup reminded that Applicant that the settlement discussions were being conducted upon her request and provided three options to the Applicant: 1. Acceptance of Hireup’s separation proposal; or 2. A transfer from the Applicant’s current role to the Quality Practice Excellence Team; or 3. Remaining in her current role. [14] Hireup sought a response by 12:00pm on 19 December 2025, ahead of its office shutdown commencing later that day. [15] On 18 December 2025, Hireup concluded its investigation which did not result in any findings of wrongdoing or misconduct by Hireup employees. [2026] FWC 1584 3 [16] On 19 December 2025, the Applicant sent correspondence to Hireup tendering her resignation and seeking payment of statutory entitlements and her notice period. Hireup replied to this correspondence accepting the Applicant’s resignation and seeking clarification as to whether the Applicant was working her notice period up to 16 January 2026, or if the Applicant was intending to finish immediately that day. Hireup advised the Applicant that it would not be making any payment in relation to the notice period unless the Applicant worked out her notice period. [17] The Applicant responded confirming that she will work out her notice period and that it will conclude on 16 January 2026. [18] On 21 December 2025, the Applicant lodged an application in the Commission pursuant s.372 of the FW Act. By that application, the Applicant contended that Hireup had engaged in conducted that constituted “a fundamental alteration” of her employment/position. [19] On 16 January 2026, the Applicant’s employment with Hireup ceased. [20] On 10 February 2026, the parties participated in a conference before the Commission in relation to the s.372 application. The Applicant states that it was during this conference that she was advised that she had completed the incorrect form. [21] Later that day, the Applicant lodged this Application. Exceptional Circumstances [22] The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.1 Exceptional circumstances may 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 can be considered exceptional.2 [23] The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) 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. [24] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following: (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); [2026] FWC 1584 4 (d) the merits of the application; and (e) fairness as between the person and other persons in a similar position. [25] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. [26] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.3 [27] I now consider these matters in the context of the Application. Reason for the delay [28] The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, however all of the circumstances must be considered.4 [29] The Applicant submitted a range of reasons for the delay, including: • Incorrect form; • Confusion/uncertainty about her employment, the investigation, and the date of dismissal; • Christmas Shutdown. [30] I do not consider that any of the reasons advanced by the Applicant constitute an acceptable or reasonable explanation for the delay. [31] In relation to the incorrect form, the Applicant confirmed in the proceedings that she intended to file a s.372 application. In any event, that application does not contend that the Applicant was dismissed or challenge any alleged dismissal. [32] In relation to the other reasons, they relate to events that occurred prior to the end of her employment and do not explain the delay – that is the period beyond the 21-day period.5 I also do not accept the Applicant was confused or uncertain about the date of dismissal or the ending of her employment. It is clear in correspondence she sent to Hireup that she knew her employment was ending on 16 January 2026 and the Applicant accepted as much under cross examination. [33] To the extent that the Applicant did not understand or have knowledge of the laws or time limits relating to applications under the FW Act, it is well established that a lack of [2026] FWC 1584 5 knowledge (or ignorance) of unfair dismissal/general protections laws and the applicable time limits for the filing of applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.6 [34] The absence of an acceptable or reasonable explanation weighs against a conclusion that there are exceptional circumstances. Action taken to dispute the dismissal [35] Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.7 [36] In Hunter Valley Developments Pty Ltd v Cohen8, Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.9 [37] Having regard to the material before, I am not satisfied that the Applicant took action to dispute the dismissal and put Hireup on notice that the dismissal is contested. This factor weighs against a conclusion that there are exceptional circumstances. Prejudice to the employer [38] Hireup submitted that it would be prejudiced if an extension of time is granted because it will lead to a further interlocutory hearing in relation to whether there was a dismissal, and potentially a general protections court application. [39] Hireup cited the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor,10 (Taylor) where His Honour stated: The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation period. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even ‘cruel’, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. (footnotes omitted) [40] Hireup also cited the decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [53], where the Full Court referred to that passage in the judgement of McHugh J in Taylor and stated that the same principles inform the intent behind the enactment of s.366 of the FW Act as it applies to an administrative tribunal. [2026] FWC 1584 6 [41] Hireup submitted that the third rationale referred to by McHugh J is activated as soon as a late application is lodged. Hireup submitted an employer is entitled to draw a line in the sand and the unwinding of that line is a prejudice of itself, in addition to the cost and management time of defending the proceedings. In other words, a respondent is automatically prejudiced upon the commencement of proceedings beyond a statutory time limit by virtue of having to defend those proceedings, even if the time and cost associated with defending the proceedings is no more than had the application been made within time. [42] I do not accept that submission. While I accept, as stated by the Full Court, that the four broad rationales identified by McHugh J inform the intent of time limits in the FW Act and are pertinent to an application for an extension of time, it does not follow that a respondent will be automatically prejudiced where an application is made beyond the 21-day time limit. [43] Under s.366 of the FW Act, the Commission has the discretion grant an extension of time for the making of a general protections application involving dismissal. The Commission’s discretion is only enlivened if it is satisfied that there are exceptional circumstances. In deciding whether there are exceptional circumstances, the Commission must take into account the matters set out in s.366(2). [44] As set out in the Explanatory Memorandum of the Fair Work Bill, and observed by a Full Bench of the Commission in Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 at [61], those matters are based on the principles set down by the Industrial Relations Court of Australia in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (Brodie-Hanns). [45] The principles set down in Brodie-Hanns were as follows: 1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time. 3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time. 4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time. 5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time. 6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion. [46] The principles set down in Brodie-Hanns acknowledge that there may be circumstances were there is an absence of prejudice to a respondent. While this is more likely to occur where [2026] FWC 1584 7 the duration of the delay is at the lower end of the scale, the circumstances of each case must be taken into account. [47] As to Hireup’s submission that it will be prejudiced through the management time and cost of defending the proceedings – that is the time and cost that would be incurred had the Application been made in time – I do not accept that is a relevant prejudice.11 [48] Accordingly, I cannot identify any prejudice that would accrue to Hireup if an extension of time were to be granted. Despite that, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration. Merits of the application [49] The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials. [50] Although the Applicant resigned from her employment on 19 December 2025, s.386 of the FW Act makes clear that a resignation can constitute a dismissal if the person was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. [51] There is limited material about the circumstances that led to the Applicant raising concerns with Hireup on 11 December 2025. However, the Applicant does not contend that it was those circumstances that forced her to resign. Rather, the Applicant stated during the proceedings that the conduct engaged in by Hireup was the imposition of the deadline of 12:00pm on 19 December 2025 for the Applicant to select one of three options. As stated above, those options included a separation proposal, or the employment continuing in the same or a different role. The Applicant was not presented with options that gave her no real choice but to resign. Clearly, the Applicant could have elected to remain in her existing or an alternative position. [52] I do not consider the merits of the Application to be strong. Accordingly, I find that this factor does not weigh in favour of a finding that there are exceptional circumstances. Fairness as between the person and other persons in a similar position [53] 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. Conclusion [54] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’. Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. [2026] FWC 1584 8 [55] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time under s.366(2). [56] The Application is dismissed. An Order to that effect will be issued with this decision. COMMISSIONER Appearances: N. Wild, the Applicant. D. Delimihalis of counsel with E. Bucholtz, Solicitor for the Respondent. Hearing details: 2026. Sydney. 27 March. Printed by authority of the Commonwealth Government Printer <PR799652> 1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]. 2 Ibid. 3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]. 4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]. 5 Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12] (per Watson VP, Smith DP). 6 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]. 7 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298. 8 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176. 9 Ibid at [19]. 10 [1996] HCA 25; (1996) 186 CLR 541 at 552. 11 Clarke v Service to Youth Council Incorporated [2013] FCA 1018 at [31].