1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Mrs Adeela Basit v Petco Newco Pty Ltd (C2026/2866) COMMISSIONER CONNOLLY MELBOURNE, 21 MAY 2026 Application to deal with contraventions involving dismissal – application made outside the prescribed 21 days – application dismissed. [1] On 25th February 2026, Ms Adeela Basit (the Applicant) lodged an application under s.365 of the Fair Work Act 2009 (the Act) in which they allege they were dismissed in contravention of Part 3-1 of the Act. [2] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. [3] The Applicant received a letter ending her employment dated the 30th of January 2026. The 21-day time limit, therefore, ended at midnight on the 20th of February 2026; the application is out of time by 5 days. For the application to proceed, an extension of time to lodge the application is required. The Respondent opposes the Commission granting an extension, and seeks the application be dismissed because it was not filed within the time required. [4] Section 366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations: (a) The reason for the delay; and (b) Steps taken to dispute the termination; and (c) Prejudice to the employer; and (d) Merits of the application; and (e) Fairness between the person and other persons in a like position [5] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd, 1 where it was held that: “To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally [2026] FWC 1850 DECISION [2026] FWC 1850 2 encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a regular occurrence, even though it can be a on off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”2 [6] The Applicant identifies several different reasons for the delay. Foremost amongst these are the medical health and psychological issues she has been suffering from. She reports that these issues include significant and unbearable pain, restricted mobility, being bedridden for two weeks, suffering depression and being required to seek ongoing medical treatment during the relevant period. Because of these conditions, the Applicant argues she was unable to file her application within time. To support these submissions, amongst other things, the Applicant has provided evidence of medical prescriptions dated 1 January 2026; undergoing medical treatment on the 13th of February; filing for workers compensation and related certificates of medical incapacity, including following a medical examination on the 17th of February; a recommendation from her general practitioner to receive psychological support dated the 3rd of March 2026 and evidence of this support being provided after this time. Ms Basit has not provided any further information or independent evidence to support a conclusion the circumstances she faced were “exceptional” or that her conditions limited her administrative and cognitive capacity to function and file this application. While I accept the evidence presented demonstrates Ms Basit is dealing with several health issues arising from a back injury, there is no material before me to conclude that these issues are “exceptional” or that they have impacted her cognitive or administrative capacity such that she was unable to file this application within the required time. Relevantly, the evidence makes clear the Applicant was at least able to file a claim for workers compensation and attend medical appointments during the 21-day period. It follows that on their own, I do not accept the Applicant’s health and medical disabilities present a valid reason for the delay.3 [7] Ms Basit’s submissions suggest two additional reasons for the delay – that she suffered significant injustice and financial hardship by being dismissed and was not aware of the 21-day filing requirement. Ms Basit takes these submissions no further, nor presents any additional evidence to support her contention that these factors and their impact on her were “exceptional” or “unique”. I note it is well established that there is nothing unusual or uncommon for an employee that has been dismissed to be confronted with stress, shock and financial hardship.4 Additionally, it is also established by this Commission that ignorance or a lack of awareness of one’s rights is not usually an acceptable of reason for delay. [8] I do not consider any of the reasons for the delay advanced by Ms Basit to be “unique” or “unprecedented”, and I am not satisfied that they satisfy the criteria of being “out of the ordinary course”, “unusual” or “uncommon”. I am, therefore, not satisfied the Applicant has provided a credible and reasonable explanation for the period of the delay. In reaching this conclusion, I also note the evidence provided from the Respondent from their insurer, EML, seeming to indicate Ms Basit had performed work at an unrelated employer on both the 9th and [2026] FWC 1850 3 23rd of February, during the period relevant to this application. This factor weighs against the granting of an extension of time. [9] As to s.366(2)(b) – steps taken to dispute the dismissal, Ms Basit identified that in addition to filing this application she has also filed a claim for workers compensation but takes these submissions no further. I have considered these submissions. I do not consider they demonstrate the Applicant to have taken any steps to dispute her termination but filing this application out of time. I consider this factor weigh against the granting of an extension of time in these circumstances. [10] In these circumstances, I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that weights in favour of the granting of an extension of time.5 As to fairness (s.366(2)(e)), Ms Basit argues that allowing her application to proceed would not only be fair but help also ensure other employees are not mistreated by big corporate pet businesses for being injured at work. The purpose of the fairness consideration concerns “the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [Applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”6 The Applicant’s submissions do not accord with the fairness consideration and, therefore, fails to weigh in support of an extension of time. [11] As to the merits (s.366(2)(d)), the Respondent’s position is that Ms Basit’s application is without merit. Ms Basit argues she was terminated unfairly in circumstances where she was injured at work, required to provide medical verification of her capacity to work and denied procedure fairness while dealing with a serious workplace injury The substantive merits of this application have not been fully tested and, as identified by the Full Bench of the Commission in Kyvelos v Champion Socks Pty Ltd, the Commission “should not embark on a detailed consideration of the substantive case” for determining whether to grant an extension of time to an Applicant to lodge their application.7 The factual context and merits of this case would need to be further scrutinised, including under cross-examination, if an extension of time was granted for the application to proceed. This being the case, I do not consider the merits of the case to tell in favour or against the granting of an extension of time, at best I consider it a neutral factor. [12] In conclusion, I am required to be satisfied that there are exceptional circumstances. On balance, the considerations above do not weigh in favour of exceptional circumstances in support of an extension of time. [2026] FWC 1850 4 [13] Having considered the material against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application as provided for in s.366(2). Accordingly, the application is dismissed. COMMISSIONER Final written submissions: 24 April 2026 Printed by authority of the Commonwealth Government Printer <PR810238> 1 [2011] FWAFB 975. 2 Ibid at [13]. 3 [2021] FWC 3903 at [24]. 4 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287. 5 Fair Work Act 2009 (Cth) s.366(2)(c). 6 Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41]. 7 AIRC 10 November 2000 at [14]; See also Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899 at [38].