1 Fair Work Act 2009 s.365—General protections Jay Sims (C2026/2581) COMMISSIONER PANOPOULOS MELBOURNE, 8 MAY 2026 Application to deal with contraventions involving dismissal – extension of time – application dismissed. [1] Mr Jay Sims (Applicant) has made an application under s.365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed in contravention of Part 3-1 of the Act. Section 366(1)(a) of the Act requires such applications to be made within 21 days after the dismissal takes effect, or such further period as the Commission allows under s.366(1)(b). The Applicant said that the dismissal occurred on 2 March 2026. The 21-day period therefore ended on 23 March 2026. The application was lodged on 20 April 2026, 28 days out of time. In order for the application to proceed, the Applicant requires that an extension of time be granted. The Commission may only extend time of it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in s.366(2)(a)-(f). [2] As to the reason for delay (s.366(2)(a)), the Applicant said that he lodged an earlier application (First application) on 23 March 2026. This application was made in time but was later discontinued on 9 April 2026 via a Form F50 filed by the Applicant to ‘pursue an alternate application.’ One day before the First application, the Applicant submitted a Form F8C, but the Respondent refused to participate in a conference and this matter was closed on 14 April 2026. The Applicant submits that he discontinued his First application because of ‘communications between the parties’ representatives and discussions directed toward resolving the matter.’ A resolution could not be reached, and the Applicant then refiled a s.365 application with the Commission, out of time. I do not find it an acceptable and reasonable explanation for the Applicant’s delay in filing his claim of contravention of Part 3-1 of the Act. The Applicant could have proceeded with settlement discussions whilst the First application remained active. It is not reasonable that settlement discussions and an active application are mutually exclusive. The reason for the delay weighs in against an extension of time. [3] As to the matters in ss.366(2)(b), (c) and (e), I note the following. The Applicant did take action to dispute the dismissal by lodging the First application. This weighs in favour of an extension. I accept the Applicant’s submissions that the employer will not suffer any prejudice as they have been aware of the matters in dispute (s.366(2)(c)). This is a neutral consideration. There is no evidence of relevant matters relating to fairness between the Applicant and other persons in a like position (s.366(2)(e)). This is a neutral consideration. [2026] FWC 1608 DECISION [2026] FWC 1608 2 [4] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested, but the merits (s.366(2)(d)) are nonetheless a factor that I am required to take into account in assessing whether there are exceptional circumstances. [5] The Applicant submits that several warnings were issued to him that he disputed and feels he was targeted by the employer. Further, that as the workplace relationship became increasingly hostile, the Applicant submits he was forced to resign. [6] The merits of the application turn on points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. I do not consider the merits of the present case to tell for or against an extension of time. I consider this to be a neutral consideration. [7] The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking into account all matters including those in s.366(2) of the Act, I am not satisfied that there are exceptional circumstances in this case. Consequently, there is no basis for the Commission to extend time. [8] The application is dismissed. COMMISSIONER Determined on the papers Printed by authority of the Commonwealth Government Printer < PR799711>