1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Lama Charab v University of New South Wales trading as UNSW Sydney, Brooke White (C2025/3047) DEPUTY PRESIDENT ROBERTS SYDNEY, 14 AUGUST 2025 Application to deal with alleged contraventions involving dismissal – extension of time – whether exceptional circumstances exist – whether applicant dismissed – expiry of contract for a fixed term [1] Ms. Lama Charab (applicant) has filed an application under s.365 of the Fair Work Act 2009 (Cth) (Act) alleging that she was dismissed by the University of New South Wales (University, or first respondent) in contravention of Part 3-1 of the Act. The second respondent to the application is Ms. Brooke White, an employee of the University. [2] The respondents have raised two preliminary objections to the application. First, the respondents say that the application was not filed within the 21-day statutory time period prescribed by s.366 of the Act and there are no exceptional circumstances which would justify an extension of time under s.336(2). Second, the respondents contend that the Applicant was not dismissed but rather that the applicant’s employment came to an end because she was engaged under the terms of a fixed term contract which reached the end of its term. For the reasons that follow, I have concluded that the respondents’ first argument succeeds, and the application should be dismissed. Background [3] The background to the application may be briefly stated. The applicant was employed by the University pursuant to a series of fixed term contracts, the first of which commenced in August 2023. The third and final fixed term contract commenced on 22 January 2024 and ended on 21 January 2025. The applicant was employed at level 6, Administrative Officer, under the terms of the third contract. Prior to the end of the last of the applicant’s contracts, the applicant asked for ongoing employment at the University after the expiry of the term of her contract. This request was denied. [2025] FWC 2378 [Note: An appeal pursuant to s.604 (C2025/8295) was lodged against this decision - refer to Full Bench decision dated 16 October 2025 [[2025] FWCFB 230] for result of appeal.] DECISION [2025] FWC 2378 2 [4] The applicant alleged that she had experienced previous discrimination in relation to another position that she had unsuccessfully applied for at the University. She maintained that she had not been made aware of the availability of this position by her manager and this prejudiced her prospects of obtaining the job. The applicant also maintained that after her return from maternity leave in October 2024 she requested permanency and was told, incorrectly according to the applicant, that she was ineligible to make the request. The applicant said that at the same time, she was informed that her fixed term contract would not be renewed without any substantive explanation. [5] The applicant said that at or about the time that her final contract was coming to an end, the University was preparing to advertise for a part-time position (at a Level 4 rate) similar to her position. She said the position was advertised in the final week of her employment and that this raised questions about the legitimacy of the refusal to offer her further work. The respondent gave evidence that the applicant said she was willing to apply for the role but asked that the pay rate be maintained at the Level 6 rate for 3 months or that the applicant’s contract be extended for 3 months. The applicant was advised that neither of those options were open but that the applicant was able to apply for the advertised position if she wanted to. [6] Further, the applicant raised concerns about a new casual employee being offered a role within the University’s IT Department without the requirement to be interviewed and that this was unfair to the applicant given her repeated requests for any type of employment with the University. [7] On 22 January 2025, the day after her employment had ended, the Applicant filed a formal written complaint with the University. The applicant was advised that her complaint had been considered and finalised on 19 March 2025. [8] In the period following the end of the applicant’s employment, the applicant made numerous unsuccessful applications for other jobs at the University. Extension of time [9] I propose to deal firstly with the question of whether or not there are exceptional circumstances that would warrant granting an extension of time for the application to be made. [10] The applicant filed the present application on 15 April 2025 and accepted that her employment came to an end on 21 January 2025 when her third contract expired. [11] The deadline for the filing of an application of this kind expired at midnight on 11 February 2025. The application was therefore out of time by a period of 63 days. Extension of time – The legislative provisions [12] Section 366 of the Act sets out the circumstances in which the Commission may extend the time for the filing of an application under s.365. It provides as follows: 366 Time for application [2025] FWC 2378 3 (1) An application under section 365 must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (2). (2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) any action taken by the person to dispute the dismissal; and (c) prejudice to the employer (including prejudice caused by the delay); and (d) the merits of the application; and (e) fairness as between the person and other persons in a like position. [13] I deal with each of the matters in s.366(2), in turn, below. Reason for the Delay [14] The applicant submitted that the reason for the delay was that the first respondent took over eight weeks to respond to her internal complaint and she genuinely believed that her employment would be reinstated, or the matter would be otherwise resolved internally without the need for her to escalate the matter to an external body. Further, the applicant said that she was given hope by a University employee that a new position would be offered to her given she was provided with a list of interview questions and asked to contact her referees. The applicant said that when she was notified that she was not successful in obtaining alternative employment this was a ‘turning point’ which prompted her to file an application with the Commission without further delay. The applicant said she had experienced internal delays, misleading recruitment conduct and emotional distress following more than two years of marginalisation and discrimination and that this had contributed to the delay in making the application. [15] The respondents submitted that the applicant had not provided a reasonable explanation for the delay. They referred to the following: a. the language in the correspondence provided on 19 March 2025 could not have left the applicant under a misapprehension in relation to the outcome of her complaint; b. the applicant’s submissions which were said to indicate that the applicant elected to not immediately lodge an application even after receiving the outcome in response to the complaint; c. the applicant had sought to explain this additional delay as the product of either stress or waiting for feedback about a job application. However, stress, shock, and confusion, in and of themselves, are not exceptional; d. there is no compelling explanation for the additional delay taking into account the following circumstances: i. the applicant submitted 19 job applications to the University between 21 January and 15 April 2025, each of which included its own round of [2025] FWC 2378 4 correspondence and, at the candidate’s request, feedback. The University therefore does not consider that feedback the applicant received on 2 April 2025 was particularly unusual for the applicant; and ii. contrary to the applicant’s submissions. the numerous job applications to the University, as well as frequent correspondence with the University’s ER staff at this time, suggests a capacity to self-advocate and act promptly. [16] The University submitted that the the high number of job applications submitted by the applicant throughout her internal complaint process suggests that she knew that she would not be returned to the role of Administrative Officer either during the complaints process, or as a possible outcome of her internal complaint. [17] I do not believe that the reasons advanced by the applicant provide a satisfactory explanation for the delay. Whilst it can be appreciated that the applicant wanted to resolve the matter internally, at the time the complaint was lodged, the applicant was no longer employed by the University. It is also clear that the applicant had sought advice about her circumstances, including from the Fair Work Commission (Commission), as far back as December 2024. She advised the University in her complaint that she had contacted the Commission and had been told that her circumstances may have amounted to unfair dismissal and an attempt to avoid entitlements. In those circumstances it is difficult to accept that there was some impediment to the applicant in formally engaging with Commission processes by filing an application before the complaint was finalised. [18] On 19 March 2025 the applicant was advised in very clear terms that her internal complaint had been finalised and that the complaints had not been established. It would have been apparent at least from that point that the University intended to take no further action on the matter, including by offering the applicant re-employment through the complaint process. From that point, a further 27 days elapsed before the application was filed. There was no credible explanation as to why the applicant did not file an application once she had been advised of the outcome of the complaint. [19] I do not regard the fact that the applicant believed she may have had a chance to succeed with another job application as a satisfactory reason for the delay. The applicant was advised that she was unsuccessful with that application on 2 April 2025 but the application challenging the circumstances of her alleged dismissal was not lodged until almost 2 weeks later on 15 April 2025. Given the applicant was very actively pursuing other job applications I also do not consider that her circumstances were such that she was somehow unable to file the application on time. [20] In my view the reasons advanced by the applicant for the delay do not support an overall conclusion of exceptional circumstances. Any action taken to dispute the dismissal [21] Ordinarily, the taking of active steps to dispute a dismissal may weigh in favour of the grant of an extension of time.1 The applicant contended that she took action to dispute the [2025] FWC 2378 5 dismissal by filing the internal complaint. The respondents submitted that the applicant did not take such action because in a telephone conversation shortly before the formal complaint was filed, the applicant told the University that she was not looking to get anything or to get her job back. The applicant accepted in cross-examination that she said words to the effect that she was not looking to get her job back but said she was in an emotional state having recently had her employment come to an end. [22] The applicant’s complaint included the following: “I am now advocating for an internal investigation, as I’ve observed that many employees are being treated unfairly…..I’m simply seeking to continue contributing in a role that aligns with my skills and experience within UNSW IT.” The complaint also raises the issue that the applicant was advised that her contract would not be extended very shortly after she had requested conversion to continuing employment. To this extent I accept that the applicant was raising a dispute as to the circumstances in which her employment came to an end. However, the surrounding correspondence and the telephone conversion clouded the suggestion that the University was put on notice that the dismissal would be disputed. I am of the view that the action taken weighs only marginally in the applicant’s favour. Prejudice to the employer [23] The applicant submitted that there was no prejudice to the respondents in granting an extension. The respondents contended that this was a neutral consideration in the overall assessment of exceptional circumstances. I accept that to be the case. Merits of the application [24] The applicant argued that the University’s failure to consider her for redeployment into other positions and the appointment of other people into roles with a significant overlap in the duties that she had successfully performed was the operative cause of her employment being brought to an end. The applicant maintained that notwithstanding the expiry of her fixed term contract of employment the termination of her employment was on the initiative of the employer and was therefore a dismissal for the purposes of s.365.2 Further, the applicant alleges that the decision not to renew or extend the fixed term contract was taken shortly after she had raised a request for continuous employment and was related to that request. The applicant maintained that the reasons given for the non-renewal were contradictory. The applicant said that the advertisement of a substantially similar role at the time her contract concluded supported the view that she had been subjected to discriminatory and exclusionary practices. [25] The University provided evidence to show that there was no decision taken to terminate the employment of the applicant for reasons proscribed by Part 3-1. The evidence of Ms. White was to the effect that decisions taken in relation to the applicant were made for reasons related to budgetary and resourcing constraints. Ms. White specifically denied the proposition that decisions had been taken against the applicant’s interests for reasons related to religion, leave, or status as a caregiver or mother. [26] It is well established that it is not appropriate for the Commission to resolve contested issues of fact going to the ultimate merits for the purpose of taking into account the merits of the matter in s.366(2)(d).3 Nonetheless in my view, the applicant’s case on the merits is not [2025] FWC 2378 6 without significant difficulties. This includes the difficulty of succeeding with an argument that her employment ended as a result of a dismissal and not through the ordinary expiration of a fixed term contract.4 On the material available to me, the merits are, at best for the applicant, a neutral consideration in the overall assessment. Fairness as between the applicant and other persons in a like position [27] I do not think there are any relevant fairness considerations as between the applicant and other persons in a like position in this matter. This is a neutral factor in the assessment. Conclusion Exceptional circumstances – conclusion and disposition [28] In circumstances such as these, the applicant must satisfy the Commission that there are exceptional circumstances which warrant the Commission exercising its discretion in favour of granting an extension of time. [29] 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. 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.5 [30] Having taken into account the matters set out above, I am not satisfied that there are exceptional circumstances in this case. Accordingly, there is no basis for an extension of time. It is therefore unnecessary to deal with the respondents’ further objection that the applicant was not dismissed. [31] The application is dismissed. DEPUTY PRESIDENT Appearances: Mrs Charab for the Applicant. Mr Caile, Counsel for the Respondent. Hearing details: [2025] FWC 2378 7 By video using Microsoft Teams at 10am AEST on Thursday, 10 July 2025. Printed by authority of the Commonwealth Government Printer <PR790679> 1 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, at 299‒300. 2 See Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 and s.386 of the Act. 3 Nulty v. Blue Star Group Pty Ltd [2011] FWAFB 975 at [36]. 4 Alouani-Roby v. National Rugby League Ltd [2024] FCAFC 161. 5 Nulty v. Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].