1 Fair Work Act 2009 s.365—General protections Kenny Wynne v Dalco Enterprises Pty Ltd, Cedric Trousquin (C2026/4036) DEPUTY PRESIDENT BEAUMONT PERTH, 29 JUNE 2026 General protections involving dismissal – out of time – application dismissed 1. Issue and outcome [1] On 26 April 2026, Kenny Wynne (the Applicant) applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth) (the Act) for it to deal with general protections contraventions involving dismissal. The Applicant, having commenced employment with Dalco Enterprises Pty Ltd (the Respondent) on 17 February 2026, asserts that his dismissal took effect on 2 April 2026. The Act requires an application made under s 365 to be lodged within 21 days after an applicant’s dismissal took effect or within such further period as the Commission allows under s 366(2) of the Act.1 The application was lodged three days outside of the statutory period prescribed by s 366(1)(a) of the Act. [2] The Commission record shows that on 16 April 2026, the Applicant emailed the Commission. The subject line of the email stated: ‘completed form f8 general protections involving dismissal’. On 17 April 2026, the Commission emailed and telephoned the Applicant to explain that there was not a completed application form attached to his email dated 16 April 2026. On 17 April 2026, the Commission emailed the Applicant a copy of the general protections dismissal application form. The Applicant subsequently emailed a completed application form to the Commission on 26 April 2026. Insofar as it is necessary to say so, I do not find that the Applicant made an application to the Commission on 16 April 2026. The application lodged on 26 April 2026 constitutes the application under s 365 of the Act. [3] Regarding the delay in making the application, the Applicant, by email dated 29 May 2026, stated that the only reason he filed the application three days late was because he had to wait to be paid by Centrelink in order to pay the fee to have the application form submitted. It is observed that the Applicant provided further reasons for the delay in lodging his application. [4] The Commission record further shows that on 12 May 2026, the Commission emailed the Applicant and informed him that he had lodged an application with the Commission on 1 Fair Work Act 2009 (Cth) s 366(1). [2026] FWC 2432 DECISION [2026] FWC 2432 2 26 April 2026 in matter no. C2026/4036, but that there was an application fee of $89.70 which had not been paid. On that same day, the Commission sent a text message to the Applicant informing him of the unpaid listing fee and reminded him to pay. By email dated 13 May 2025, the Applicant wrote: ‘Hi i need to pay the fee’. The Applicant paid the application fee on 13 May 2026. It therefore appears that at least one of the Applicant’s reasons for the delay in making his application is implausible. This is because the Applicant lodged his application on 26 April 2026 and at that time, he did not pay the application fee. It is therefore not apparent that the delay in lodging the application arose because the Applicant had to await the receipt of funds prior to lodging his application. [5] For the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 366(2) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the factors listed at s 366(2)(a)–(e). The issue before me is whether the circumstances are exceptional and, if they are, whether it is fair and equitable for an extension to be granted. [6] My Chambers issued directions on 29 May 2026 (Directions email). The Applicant, having identified in his application additional reasons for the delay (mental and financial stress), that he had left numerous messages and received no responses (purportedly from the Respondent), and that he had been unfairly dismissed, was informed in the Directions email that it was my preliminary view that the material he had filed did not demonstrate exceptional circumstances for the late filing of his application. It was further explained to the Applicant: It is important to appreciate that the case law establishes that ignorance of the law (Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975) and confusion, trauma, upset and shock from having been dismissed (Howard v Medical and Aged Care Group [2018] FWC 3454, [19]), do not constitute exceptional circumstances. Financial stress as a consequence of dismissal is something that unfortunately is experienced by most unfair dismissal applicants and is therefore not generally considered to be a plausible reason for a delay in making an application: see previous decisions of the Commission in Kevin Pringle v BHP Iron Ore [2022] FWC 554; Graham v Granny Smith Gold Mining Company Pty Ltd T/A Gsm Mining Company Pty Ltd [2024] FWC 759 [41]; Massey v Centrecare [2022] FWC 250. [7] Subsequent to the Directions email, the Applicant filed further information in support of his application and his contention that there were exceptional circumstances. I considered it appropriate to determine the matter on the papers. Having considered the materials filed, including those in response to the Directions email, and each of the statutory considerations individually and collectively, I am, on balance, not satisfied that there are exceptional circumstances as contemplated by s 366(2) of the Act and therefore the application is dismissed. An Order2 issues concurrently with this decision and my detailed reasons follow. 2 PR811519. [2026] FWC 2432 3 2. Extension of time [8] Under s 366(1)(b) and (2) of the Act, the Commission has the power to extend the time within which an application for a general protections dismissal dispute can be made. In Tamu v Australia for UNHCR,3 a Full Bench of the Commission summarised the principles relevant to applications of this kind: [16] Section 366(1) provides that a general protections application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2). The 21 day period prescribed in section 366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day. [17] Section 366(2) of the Act sets out the circumstances in which the Commission may grant an extension of time as follows: “(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.” [18] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. A decision whether to extend time under section 366(2) involves the exercise of a discretion. [19] The meaning of “exceptional circumstances” in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (‘Nulty’),4 as follows: “[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. 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 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 singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances includes a combination of factors which, 3 [2019] FWCFB 2384. 4 [2011] FWAFB 975. [2026] FWC 2432 4 when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. [14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.” [20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.’ (footnotes omitted) [9] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (‘Stogiannidis’),5 a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers,6 which had concluded that for ‘exceptional circumstances’ to be established, an applicant must provide reasons for the whole of the period of delay. In Stogiannidis, the Full Bench expressed: [38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. [39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each. [40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay. 2.1 Reason for the delay [10] It has been observed that the Act does not specify what reason for delay might tell in favour of granting an extension.7 However, decisions of the Commission have referred to an 5 [2018] FWCFB 901 (‘Stogiannidis’). 6 [2010] FWAFB 7251. 7 Pottenger v Department of Caffeine [2018] FWC 3403, [31]. [2026] FWC 2432 5 acceptable8 or reasonable9 explanation. The absence of any explanation for any part of the delay may weigh against an applicant in the assessment of whether there are exceptional circumstances, whilst a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, however all the circumstances must be considered.10 [11] The relevant period required to be considered under s 366 is the period after the 21-day timeframe for lodging the application.11 However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.12 [12] As noted, the Applicant essentially relies on two reasons for the delay in lodging his application. [13] Addressing the first reason, the Applicant gave evidence that subsequent to his dismissal he experienced mental and financial stress. [14] As was identified in Bates v Joblink Plus Limited, having been drawn from the reasons of the Full Bench in Shaw v Australia and New Zealand Banking Group Ltd, stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves following the loss of employment.13 It is well-established that the loss of employment is a serious event in a person’s life, and that the aforementioned responses such as adverse impacts on mental health and consequences, are not unusual.14 [15] However, it is accepted that an applicant’s medical condition can be so significant that it affects the applicant’s mental capacity to prepare and file an application with the Commission. Much, however, may turn on the evidence adduced to support such a proposition. In Underwood v Terra Firma Pty Ltd, the Full Bench accepted the finding made at first instance that the applicant had failed to positively demonstrate that his depressive illness had impacted his mental capacity so as to prevent him from making the application within 21 days.15 The Full Bench affirmed the findings that the medical evidence relied upon ‘did not positively demonstrate that the appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21-day time frame’ and that no exceptional circumstances were established.16 [16] In the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish that they were prevented from lodging an application due to a medical condition where the employee demonstrates capacity to act by performing other tasks following 8 Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9]. 9 Roberts v Greystanes Disability Services [2018] FWC 64, [16]. 10 Stogiannidis (n 5) [39]. 11 Long v Keolis Downer [2018] FWCFB 4109, [40]. 12 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (‘Shaw’). 13 [2024] FWC 884, [19], citing Shaw (n 12), [15]. 14 Ibid. 15 [2015] FWCFB 3435. 16 Ibid [16]. [2026] FWC 2432 6 the dismissal.17 In this case, there is no probative medical evidence showing incapacity at a particular time or times in the delay period. Whilst sympathetic to the circumstances that the Applicant faced at the time of his dismissal, including the economic stress associated with the loss of a job, it is common for employees to suffer such economic stress in these circumstances. I am unpersuaded that the Applicant’s mental health and other circumstances so described, provide a credible explanation for the delay in making his application. [17] The Applicant further expressed that the delay in making his application arose from having to wait for a Centrelink payment to be able to make the application fee. However, the Commission record shows that at the time the Applicant made his application on 26 April 2026, he did not pay the application fee. In fact, it was not until 13 May 2026 that the application fee was paid. It follows, as observed, that the delay in lodging the application is unable to be plausibly explained by not having sufficient funds to lodge the application. [18] I have considered the delay as the period beyond the 21-day period. Regard has been had to the circumstances from the date the dismissal took effect. As I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the whole period of the delay in lodging his application, or part thereof, this weighs against a finding of exceptional circumstances. 2.2 Action taken to dispute the dismissal [19] Action taken by the employee to contest the dismissal, other than lodging a general protections dismissal dispute, may favour granting an extension of time.18 [20] The Applicant contends that following his dismissal, he took steps to clarify and dispute the decision. The Applicant stated that he contacted the Respondent on multiple occasions and received no response. The Applicant filed text messages in support of his application, one of which appears to have been from the Applicant, which stated, ‘[S]o dale what was the reason for my immediate dismissal after cedric trousquin was banging aggressively on my room door in warburton on the 2nd of April at 1045am’. A further text message was filed by the Applicant, some of the content of which was missing, but nevertheless it stated, ‘…and also been served a last and final letter aster swing which has not been improved. Hence the reason for your early departure. More than happy to have a chat or you can talk straight to GJD management’. [21] The evidence relied upon by the Applicant does not show that the Applicant disputed his dismissal, at best it shows that the Applicant sought clarification for the reason for his dismissal. [22] It follows that I am of the view that, on balance, the Applicant had not taken action to place the Respondent on notice that he disputed his dismissal. However, in all the circumstances I consider this factor weighs neither toward nor against a finding or exceptional circumstances. 17 See Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB 5645, [15]. 18 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299–300 (‘Brodie-Hanns’). [2026] FWC 2432 7 2.3 What is the prejudice to the employer? [23] When considering the factor of prejudice to the employer, the Commission considers whether the delay has caused the employer to suffer prejudice and whether the purported prejudice would not have been suffered had the application been made within 21 days of the dismissal taking effect. [24] In GHD Pty Ltd v Black, it was said that it is well accepted that a lengthy delay gives rise to a general presumption of prejudice.19 In that case, the Full Bench held on appeal that a 168-day delay may impair the recollection or availability of witnesses and thereby give rise to a relevant prejudice.20 The length of the delay in this matter is some three days. I am therefore not content to adopt the general assumption that the delay period may impair the recollection and availability of witnesses in this case. [25] However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time.21 In the present case, I consider this to be a neutral factor. 2.4 Merits of the application [26] The Act requires me to consider the merits of the application in considering whether to grant an extension of time. [27] In Nulty, the Full Bench of the then Fair Work Australia considered the principles applicable to the extension of time discretion under s 366 of the Act. In that case, the Full Bench said in respect to the merits of an application: [36] It ought be regarded as well established that on an extension of time hearing it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d). [28] In Telstra-Network Technology Group v Kornicki, the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth).22 In that case, the Full Bench said in respect to the merits of an application: If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.23 19 [2023] FWCFB 38, [51] (‘GHD’), citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556, and Brodie-Hanns (n 18) 299-300. 20 GHD (n 19) [51]. 21 Brodie-Hanns (n 18) 300. 22 (1997) 140 IR 1. 23 Ibid 11. [2026] FWC 2432 8 [29] In his application, the Applicant contended, amongst other matters, that there was no real valid reason for his dismissal and that he was dismissed to enable another security staff member to return to his job. It is inappropriate for me to resolve contested issues of fact going to the ultimate merits for the purposes of taking into account the merits of the matter as required by s 366(2)(d) of the Act. It is sufficient to conclude that the Applicant appears to agitate that he has been ‘unfairly dismissed’ and appears to have conflated the protections proffered by Part 3-2 of the Act with those of Part 3-1, albeit the Applicant identified sections of the general protection provisions which he alleged were contravened. Whilst I am unable to say that the Applicant’s case is absent merit, in all the circumstances, I consider the factor neutral – weighing neither toward nor against a finding of exceptional circumstances. 2.5 Fairness as between the person and other persons in a similar position [30] The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by Deputy President Gostencnik, as he then was, in Morphett v Pearcedale Egg Farm, where it was said: [C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.24 [31] The Commission’s consideration of the factor under s 366(2)(e) of the Act is concerned with the consistent application of principles in applications of this kind.25 This ensures fairness as between an applicant and other persons in a similar position. However, applications for an extension of time generally turn on their own facts, and it follows that in the circumstances of this case, the consideration of fairness between the Applicant and persons in a similar position is a neutral consideration. 3. Conclusion [32] The conclusion as to the existence of exceptional circumstances will turn on a consideration of all the relevant matters and the assignment of appropriate weight to each. [33] As noted, in the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am, on balance, not satisfied that there are exceptional circumstances as contemplated by s 366(2) of the Act. Whilst appreciative that the Applicant takes umbrage as to the way his employment ended, the reasons for the delay are uncompelling in the context of the Act and the meaning attributed to ‘exceptional circumstances’ within that framework. Further, the other factors I am obliged to consider, on balance, do not lean towards a finding that the circumstances confronting the Applicant were exceptional. This is the case notwithstanding that the Applicant had initially attempted to make a general protections application involving dismissal on 16 April 2026. I am therefore unable to grant an extension of time, and the application must be dismissed. 24 [2015] FWC 8885, [29]. 25 GHD (n 19) [94]. [2026] FWC 2432 9 DEPUTY PRESIDENT Matter determined on the papers Printed by authority of the Commonwealth Government Printer <PR811518>