1 Fair Work Act 2009 s.365 – General protections contraventions involving dismissal Yan Bai v Furnace Engineering Pty Ltd (C2026/4172) DEPUTY PRESIDENT MASSON MELBOURNE, 10 JULY 2026 Application to deal with contraventions involving dismissal – jurisdictional objections - whether dismissed within meaning of s 386(1)(a) and that application was made outside 21- day time limit - found that Applicant was dismissed at the Respondent’s initiative – further found that there were no exceptional circumstances in considering whether to grant an extension of time – extension of time not granted - application dismissed. Introduction [1] On the 7 April 2026, Ms Yan Bai (the Applicant) lodged an application (the Application) pursuant to s365 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment on 9 January 2026 by Furnace Engineering Pty Ltd (the Respondent) contravened her workplace rights. In its Form F8A response, the Respondent raised two jurisdictional objections to the application. Firstly, the Applicant was not dismissed within the meaning of s 386 of the Act and secondly that the application was filed outside the 21-day statutory period. [2] The Respondent’s first jurisdictional objection is significant because the Applicant must have been dismissed in order to make a general protections dismissal dispute application.1 Where there is a dispute about whether a person was dismissed, the Commission must determine that point before exercising its powers under s 368 of the Act.2 Consequently, the first issue for determination is whether the Applicant was dismissed from her employment within the meaning of s 386 of the Act. [3] As regards the second jurisdictional objection, s 366(1) of the Act states that a general protections dismissal dispute application must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 366(2) of the Act. If a dismissal is found to have occurred, the period of 21 days ended at midnight on 30 January 2026. The Application was therefore filed 68 days outside the 1 Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37. 2 Ibid at [51]. [2026] FWC 2635 DECISION [2026] FWC 2635 2 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s 394(3) of the FW Act. [4] Following allocation of the matter to my Chambers on 13 April 2026, Directions were issued to the parties for the filing of material in relation to the jurisdictional issues. Both parties filed material in advance of the hearing listed for 1 July 2026. At the hearing, the Applicant appeared and gave evidence while Guy Stephens of Barry Nilsson Lawyers was granted permission to appear on behalf of the Respondent pursuant to s 596(2) of the Act. Mr Stephens called Richard Simpson - Managing Director to give evidence for the Respondent. Background & evidence [5] The Applicant commenced employment with the Respondent on 23 April 2025 on a permanent full-time basis in the position of Group Financial Controller, having executed an employment agreement3 (the Employment Agreement) on 23 April 2025, and in that role reported to the Managing Director. The Applicant claims that she was subsequently appointed as Group Company Secretary of the parent/holding company of the Respondent on 17 May 2025.4 [6] The Applicant claims that a payroll officer who had worked for the Respondent for 18 years entered the Applicant’s office in October 2025 and engaged in sexual harassment and that she (the Applicant) was also subject to yelling and belittling by a director of an associated entity of the Respondent in October 2025.5 [7] The Applicant also states that she was advised on 9 November 2025 by two colleagues that Mr Simpson had started looking for her replacement and that he had interviewed a candidate on 5 November 2025. She sent a text message to Mr Simpson at 5.29pm on 9 November 2025 in the following terms: “Hi Richard, I have got severe flu/cold symptoms during the weekend. I am afraid that I won't be able to come in office tomorrow. Sorry for the absence, my body has been weak recently. For a clarity here, I have no plan for looking for jobs or attending interviews. If you have seen candidate available for my role, I will cooperate with you for your best interests. Regards Emma”6 3 Exhibit R1, First Witness Statement of Richard Simpson, dated 12 May 2026, Annexure RS-1 4 Exhibit A1, Witness Statement of Yan Bai, dated 26 May 2025, at [1] 5 Exhibit A1, at [5]-[10] 6 Exhibit A1, Annexure YB-3 [2026] FWC 2635 3 [8] After not receiving a response the Applicant sent a further text message to Mr Simpson at 6.23am on 11 November 2025: “Hi Richard, Sorry to send you msg in the early morning. I might need a bit longer time to get recovery. My health condition has been worsen out from the Thursday before melbourne cup weekend. I was trying to explain to you last week but didn't get a chance. To be honest, when I get to know you have seen someone else, I have cried. The emotions have triggered my skin flare up again with caught up flu as well. Doctor thinks I might got Rosacea. This is the treatment I am taking atm. One of the medicine side effects make me sleepy. I wish I could I come in office earlier but I think I need a bit more time. Thanks for your understanding Emma”7 [9] Mr Simpson says that when he received the above message from the Applicant he responded that he did not understand what she meant by the comment that he had seen someone else.8 The Applicant then replied by text that she meant he had interviewed her replacement which had upset her.9 Mr Simpson clarified in a further text message to the Applicant that he was not interviewing anyone and had no plan to replace her.10 Mr Simpson was adamant that he did not interview any candidates to replace the Applicant as asserted in her text message of 11 November 2025 until after she ceased employment with the Respondent.11 [10] Between 10 November and 1 December 2025, the Applicant attended multiple medical appointments for a range of medical matters including in respect of a skin condition. She states she was prescribed various medication including Diazepam for depression/anxiety and also commenced a mental health plan.12 While she worked form home from 26-28 November 2025, she says she returned to the office on 1 December 2025 and provided a medical certificate13 to Mr Simpson that covered the period from 27 November – 5 December 2025. The Applicant states she discussed with Mr Simpson taking some stress leave on 1 December 2025 to which 7 Exhibit A1, Annexure YB-4 8 Exhibit R2, Second Witness Statemen of Richard Simpson, dated 2 June 2026, at [3]-[4], Annexure R-12 9 Ibid 10 Ibid 11 Exhibit R2, at [11] 12 Exhibit A1, at [14]-[23], Annexures YB-5, YB-6, YB-7 13 Exhibit A1, Annexure YB-7 [2026] FWC 2635 4 she claims Mr Simpson refused the request, explaining that leave needed to be pre-planned, which forced the Applicant to work up until the business Christmas closure on 19 December 2025.14 The Applicant attended further medical appointments on 4 and 5 December 2025.15 When questioned on her various medical appointments, the Applicant agreed she had not taken personal leave to attend these appointments and was afforded flexibility by Mr Simpson to enable appointment attendance which she states she reciprocated by working through lunch at times. [11] The Applicant states that she sent a text to Mr Simpson on 9 December 2025 letting him know she had started taking a long-term antidepressant together with Doxycycline and that she wanted to discuss workers compensation for her psychological injuries and physical injuries from work.16 She goes on to state that in a meeting with Mr Simpson she also raised a report of sexual harassment, raised concerns about the payroll officer’s mental state, and that it would be very helpful if Mr Simpson could support both the Applicant and the payroll officer. When challenged during cross-examination on her evidence of having made a complaint of sexual harassment, the Applicant maintained she had done so. [12] The Applicant also claims that in the same meeting she and Mr Simpson decided together not to proceed with a workers compensation claim because it would impact the Respondent’s reputation.17 The Applicant states she attended further medical appointments between 11 – 19 December 2025 and that she also spoke with Mr Simpson on 15 December 2025 and advised him that she may be potentially getting cancer.18 The Applicant conceded during cross-examination that when discussing a potential workers compensation claim, Mr Simpson stated that whether she made a claim or not was entirely a matter for her and did not attempt her to dissuade her from doing so. She further explained that during their discussion she rationalised that making a claim would be bad for the Respondent’s insurance costs which inclined her to not make a claim. She says Mr Simpson did not disagree with this view nor direct her to make a claim. [13] Mr Simpson rejects that the Applicant raised a complaint of sexual harassment with him in a meeting on 9 December 2025, or that he discussed the availability of CCTV footage to confirm her complaint. He says this simply did not occur and he has no recollection of the Applicant raising any complaint of sexual harassment at that or any other time during her employment. He further states that had such a complaint been made, he would have treated it seriously and taken appropriate steps to investigate it in accordance with the Respondent’s policies and procedures.19 [14] The Applicant states that she attended a medical appointment at 9.00am on 5 January 2026 following which she later called Mr Simpson at 2.02pm,20 during which she says Mr Simpson sought details on her health issues. When questioned when she would be fully 14 Exhibit A1, at [24] 15 Exhibit A1, at [25]-[26] 16 Exhibit A1, at [27] Annexure YB-8 17 Exhibit A1, at [27] 18 Exhibit A1, at [28]-[31], Annexure YB-9 19 Exhibit R2, At [15] 20 Exhibit A1, Annexure YB-12 [2026] FWC 2635 5 recovered, the Applicant states she responded she did not know at this stage, in response to which Mr Simpson is said to have stated he would need to look for a replacement for the Applicant. The Applicant states that Mr Simpson did not clarify whether the replacement was temporary or permanent.21 [15] Mr Simpson agreed that he had a telephone call with the Applicant on 5 January 2026 during which they discussed her request to take a period of leave up until 19 January 2026. Following the call, Mr Simpson responded by text the same day in the following terms: “Hi Emma. As discussed, this extended period should be ok. On payroll side, our assumption is that we would be using up any leave accrual (personal and annual) and then moving to unpaid leave. Richard.”22 [16] The Applicant then replied to Mr Simpson’s text of 5 January 2026, at 7.05am on 6 January 2026 as follows: “Hi Richard, Thanks for your understanding and approval. I would like to improve my health condition and provide better quality work for you. The main reason that I have to stay at home due to my skin condition strictly avoiding heat and UV. I do enjoy working and can work from home if you allow me. From now to 19th, we will process unpaid leaves and I am happy to assist any work when needed via my mobile. Emma”23 [17] Mr Simpson was questioned on why he did not respond to the Applicant’s text message sent at 7.05 am on 6 January 2026. He responded that the text message he received did not require a response as it (the text from the Applicant) simply confirmed and responded to his text message of the previous day in which he confirmed that an extended period of leave was ok and that she should exhaust her paid leave before taking unpaid leave. [18] The Applicant states that later on 6 January 2026, she had further medical appointments including a mental health consultation which resulted in increased medication being prescribed24. She says that as Mr Simpson had not responded to her text message of that 21 Exhibit A1, at [33] 22 Exhibit A1, Annexure YB-12 23 Exhibit A1, Annexure YB-13 24 Exhibit A1, Annexure YB-15 [2026] FWC 2635 6 morning she sent a follow up text message on 6 January 2026 in which she says she agreed to his suggestion that he look for her replacement: “Hi Richard, After careful consideration, I think you might want to look for my replacement. From my heart, I don't want to leave my job but I can't predict or tell you when I am getting better. I have learnt a lot from you, you are a respectful and great leader. I understand my position is crucial role for your business and you have goal to achieve with the full time in house dedication and commitment. I am sorry for keeping taking time off. I am not going anywhere or jobs. If you need me for anything, I am available here. Regards Emma”25 [19] The Applicant was questioned on her text message sent to Mr Simpson at 6.44pm on 6 January 2026. She rejected that she was signalling her intention to resign. She explained that it was for operational planning purposes only and to enable Mr Simpson to arrange cover during her absence on leave. [20] Mr Simpson explained that he understood the second text message from the Applicant on 6 January 2026 to be an expression of the Applicant’s intention to resign in circumstances where she had exhausted her leave entitlements, had not provided a medical certificate and where the Respondent was not willing to simply pay her during her absence.26 Mr Simpson responded as follows at 5.28pm on 6 January 2026: “Hi Emma, I am sorry to hear that you are still unwell. Based on the above message, and our previous exchanges, it seems to me that you may not be well enough to continue in your role and that you should now take some time to focus on your health. If you agree then we could arrange for your employment to end by mutual agreement. We would send a letter of termination (by mutual agreement) to your personal email address. 25 Exhibit A1, at [33]-[34], Annexure YB-16 26 Exhibit R1, at [23] [2026] FWC 2635 7 You would be paid any outstanding entitlements up to that date. Do you agree to this approach? If necessary can arrange a time to discuss this proposed approach with you.”27 [21] Following what she describes as a ‘dermatologist emergency appointment’ at 11.00am on 7 January 2026, the Applicant says she was sent a prescription for strong oral antibiotics. The Applicant, on receiving Mr Simpon’s above message, replied almost immediately. She states that the text message was sent in the heat of the moment as she was taking medication with strong side effects at the time: “Hi Richard, I will follow and agree with your decision. All best and will be available if I could help anything. Thanks and Regards Emma”28 [22] When questioned on the above text message, the Applicant said she viewed Mr Simpson’s prior response as ‘crude’ and as a request for her to resign. This she says explains why in the heat of the moment she responded by agreeing to his decision. She reaffirmed that she did not want to leave her job but felt pressured to do so. She rejected the proposition put to her that her communication of 6 January 2026 was not in the heat of the moment. [23] The Applicant sent a further text message to Mr Simpson at 8.29 pm on 7 January 2025 in the following terms: “Hi Richard, If you can't find the right fit, can I offer to continue supporting you? I don't need to work on full time base to save money for you. I feel very sad to leave you now. Emma”29 27 Exhibit R1, Annexure RS-4 28 Ibid 29 Exhibit A1, Annexure YB-18 [2026] FWC 2635 8 [24] The Applicant also produced extracts of a health report obtained following a mental health consultation with her physician on 9 January 2026. The report extracts refer to severe depression, anxiety and weight loss.30 [25] At 11.19am on 9 January 2026, Mr Simpson emailed the Applicant her termination letter (Termination of Employment Letter) and requested she reply with her acknowledgement, which she did.31 The Termination of Employment Letter relevantly stated as follows: “…………… I refer to our recent discussions by way of text message particularly on 6 January 2026 and 7 January 2026. This letter confirms our mutual agreement to finalise your employment with Furnace Engineering Pty Ltd effective Friday, 9 January 2026 (Termination Date) on the understanding that neither party is required to give notice. Final entitlements You will be paid any outstanding entitlements up the Termination Date, comprising (if any): • hours worked up to the Termination Date; and • accrued but unused annual leave entitlements. We note that you have a negative personal leave balance, but we are proposing not to set this off against your entitlements as above. Company property Please return all Company property, including but not limited to electronic devices, access cards, documents, and equipment by the Termination Date. On behalf of the Company, I would like to extend our gratitude for your service during your employment. We understand and respect the importance of your decision to focus on your health and we wish you the very best in your future endeavours. ……………..”32 [26] Mr Simpson was cross-examined on the communication between the Applicant and himself between 6-9 January 2026. He gave the following evidence in response to questioning: 30 Exhibit A1, Annexure YB-19 31 Exhibit R1, Annexure RS-5 32 Exhibit R1, Annexure RS-6 [2026] FWC 2635 9 • accepted that the Applicant’s text messages of 6 January 2026 did not explicitly state that she was resigning from her employment but he inferred from the text and his prior discussions with the Applicant that the intent of the text was to communicate her intention to resign; • rejected that he had pressured the Applicant to resign and referred to his text message to the Applicant on 5 January 2025 when he agreed for the Applicant to take leave up to 19 January 2026; and • agreed that the Applicant’s text message to him on 7 January 2026 expressed sadness at leaving her employment, also agreed that he did not follow-up with the Applicant in response to that message to check if she wished to proceed with the mutually agreed separation and explained that the text was received from the Applicant at 8.59pm and she still had the chance to reject the proposed separation when he sent her the Termination of Employment Letter on 9 January 2026 [27] The Applicant claims that she called Mr Simpson at 2.46pm on 9 January 202633 and asked him to rehire her, to which request she claims he said ‘yes’.34 Mr Simpson strongly denied this claim. The Applicant further states that she saw the advertisement for her previous role on 15 January 2026 in response to which she sent a text to Mr Simpson, advised him that her health had improved and requested to come back and help him. Mr Simpson responded that he would let her know if there was something she could do.35 The Applicant had further medical consults on 16 January, 19 January and 2 February 202636 and on 2 February 2026 she also sent a text message to Mr Simpson in which she wished him a happy birthday and proposed to come in that week with a birthday cake for him. Mr Simpson declined the request stating he was busy. The Applicant did however return to the office on 9 February 2026 to pick up her personal belongings and made a further offer via text message to Mr Simpson on 10 February 2026 that she was available to help him with anything.37 [28] The Applicant travelled to China for the period from 12-26 February 2026. On her return she had further medical consults, sent messages to Mr Simpson on 10 March 202638 offering assistance and on 19 March 202639 inquired whether he had found her replacement yet, to which Mr Simpson responded by confirming a new hire had been placed. On 23 March 2026, the Applicant requested a reference from Mr Simpson.40 At 6.30pm on 23 March 2026, Mr Simpson emailed the Applicant a reference which she took issue with as she did not believe the reference accurately reflected her role or the circumstances of her departure from the Respondent. She requested that the reference be amended.41 Mr Simpson responded at 7.37pm on 23 March 2026 advising that he was happy to stand by the reference he had provided, stated that it was not 33 Exhibit A1, Annexure YB-20 34 Exhibit A1, at [37] 35 Exhibit A1, at [38], Annexure YB-21 36 Exhibit A1, [39]-[41] 37 Exhibit A1, [42]-[45] 38 Exhibit A1, Annexure YB-24 39 Exhibit A1, Annexure YB-25 40 Exhibit A1, at [52]-[53] 41 Exhibit A1, at [53], Annexure YB-27 [2026] FWC 2635 10 appropriate for the Applicant to dictate the terms of the reference and rebuffed her request to come into the office to discuss the reference. After receiving these text messages from the Applicant on 23 March 2026, Mr Simpson states he became concerned that the Applicant was becoming aggressive, so he blocked the Applicant’s phone number and advised two fellow directors to do the same.42 [29] The Applicant sent a further text message to Mr Simpson on 24 March 2026 in the following terms; “Richard, I have suffered financial loss and mental and physical health conditions from my employment with Furnace engineering. I have never claimed any compensation from business. Especially I am a single mother who has no other support in Australia and currently unemployed. As you can see, I have tried my best to smooth transition for company stability and protect business reputation. Since you have appointed me as Director for FE Group, my work ethics and professionalism and loyalty have always put business best interests as priority than anything else, even though I have scarified my own personal benefits to maximise business success. I believe you are a respectful and supportive leader who can see and value my contributions to the company. I will speak you soon Regards Emma”43 [30] The Applicant sates that from 25 March to 7 April 2026, she was actively seeking legal advice via the Commission’s website, making on-line enquiries, phone calls to law firms and calling the Commission directly. Law firms contacted included Shine, Slater and Gordon and Maurice Blackburn Lawyers between 25-31 March 2026. The Applicant attended further medical appointments in the period from 1-7 April 2026 as well as continuing to contact law firms regarding her case.44 [31] The Applicant was cross-examined in relation to events that took place after the cessation of her employment on 9 January 2026. She gave the following evidence: • agreed that she knew as of 9 January 2026 that her employment with the Respondent had ended; • although she knew her employment had ended, she continued to politely offer to assist the Respondent while it recruited a replacement; • inferred from Mr Simpson’s responses that there was a prospect of further work while accepting he provided no direct assurance of that; 42 Exhibit R1, at [44]-[45], Annexure RS-10 43 Exhibit A1, Annexure YB-28 44 Exhibit A1, at [57]-[59], Annexures YB-29, YB-30, YB-31 [2026] FWC 2635 11 • confirmed that the Respondent at no stage offered her further work; • agreed that she was aware the Respondent had advertised her former role on 15 January 2026 and knew as of 19 March 2026 that her replacement had commenced employment with the Respondent; • confirmed that her offers of assistance shortly after 9 January 2026 reflected the fact that she felt well enough to return to work on a part-time basis at least; • rejected that because she felt able to return to work shortly after 9 January 2026, she was able to engage in legal processes such as filing her application in the Commission; • could not point to any medical information or evidence that stated she was unable to engage in legal processes; • denied that she pursued her application because of the dispute over the terms of her reference; and • agreed that she was prompted to pursue her legal rights after Mr Simpson blocked her phone number on or about 24 March 2026 and explained that this was the point she realised there was no prospect of any further work with the Respondent. Has the Applicant been dismissed? [32] A threshold issue to be determined in this matter is whether the Applicant has been dismissed from his employment. The circumstances in which a person is taken to be “dismissed” are set out in s 386 of the Act. Section 386(1) relevantly provides as follows: (1) A person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. [33] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. [34] The authorities in respect of the meaning of the term ‘dismissed’ are well traversed and it is useful to detail some of them at this point. In a decision made prior to the passage of the Act, the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd45 (Mohazab) was considering whether an employee had been forced to resign in circumstances where the employee signed a letter of resignation drafted by the 45 [1995] IRCA 625; 62 IR 200. [2026] FWC 2635 12 employer shortly after being interviewed in relation to allegations of dishonesty. After setting out the findings of fact the Full Court said the following when considering the meaning of ‘termination at the initiative of the employer:’ “In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd ("David Graphics"), Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation an employee who resigned because "he felt he had no other option". His Honour described those circumstances as:- “... a termination of employment at the instance [of] the employer rather than of the employee.” and at 5:- “I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’” (our emphasis added)” [35] In a more recent Full Bench decision in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli46 (Bupa), the Full Bench was dealing with an appeal of a decision in which the member at first instance found that the dismissal was within the meaning of s.386(1) and that the dismissal was unfair. The Full Bench in Bupa was concerned with a ‘forced’ resignation and how the passage of the FW Act impacted prior authorities when it stated as follows: “[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows: “1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200). 46 [2017] FWCFB 3941. [2026] FWC 2635 13 1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12). 1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations; • where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or • where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.” [36] Having identified there were two elements to s 386(1) and after extensively considering the authorities, the Full Bench then said: “[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows: (1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer. (2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”47 (my emphasis added) 47 Ibid. [2026] FWC 2635 14 [37] In the present matter I discern from the Applicant’s arguments in the proceedings that she contends she was dismissed within the meaning of the first limb of s. 386(1), that being she was dismissed at the Respondent’s initiative. Consideration Whether Respondent’s conduct or course of conduct forced the resignation of the Applicant (s. 386(1)(a) [38] The Applicant submits that her agreement to a mutual separation was a result of pressure applied by Mr Simpson in circumstances where she was unwell, where she was on medication and where it ought to have been apparent to Mr Simpson that she did not wish to leave her employment. She further submits that she did not submit a formal resignation and her agreement to a mutual separation was in the heat of the moment. This she says ought to have been also apparent to the Respondent but it (the Respondent) took no steps to check or clarify that she did in fact wish to end her employment with the Respondent. [39] For its part, the Respondent submits that the Applicant initiated the proposed separation through her text messages to Mr Simposn on 6 January 2026. These messages were sent only one day after Mr Simpson had acknowledged and agreed to the Applicant taking a mixture of her remaining paid leave and then unpaid leave to cover her absence on sick leave up to 19 January 2026. The Respondent also rejects that the Applicant’s agreement to a mutually agreed separation was either pressured by the Respondent or agreed to in the ‘heat of the moment.’ In support of that submission, the Respondent refers to the Applicant’s second text of 6 January 2026 where she refers to her ‘careful consideration’ prior to suggesting to Mr Simpson in that text that he look for her replacement. The Respondent further submits that the Respondent only suggested that a mutually agreed separation could be arranged if the Applicant agreed and that she did not have to agree to the cessation of her employment when she received the Termination of Employment Letter on 9 January 2026 but did so anyway. [40] It is apparent from her evidence, both written and oral, that the Applicant felt a degree of guilt at being unable to fully support the Respondent in her role as she would have liked. This was because of the health issues she experienced in the lead up to the cessation of her employment. She had exhausted her paid personal leave entitlements and clearly felt vulnerable in her role. This can be seen in her text message to Mr Simpson on 9 November 2025 when she confronted him about having interviewed a candidate to replace her, a claim strongly denied by Mr Simpson in his response on 11 November 2025 and in his evidence in this matter which I accept. There is no probative evidence, merely a suspicion on the Applicant’s part, that Mr Simpson had commenced a search for her replacement prior to advertising the Applicant’s former role on 15 January 2026. Little however turns on this other than to highlight the Applicant’s feelings of insecurity in the role for the reasons previously stated. [41] The events in early January 2026 should be viewed in the context of the Applicant’s health issues and her sense of failing to support the Respondent as she wanted to. In that context, I accept that the Applicant offered Mr Simpson a solution by suggesting he look for her replacement. In doing so, she was certainly signalling that she was unable to fully support the Respondent in what was an important role. Contrary to the Respondent’s submission, I do not accept that she was signalling an intention to immediately resign. This can be seen in the [2026] FWC 2635 15 communication after 6 January 2026 where she immediately indicated regret and sadness at leaving her employment and offered to provide assistance to the Respondent while it sought a replacement for her role. [42] Returning to the events of 6 January 2026, the Applicant’s first message to Mr Simpson disclosed her desire to improve her health and her willingness to work from home if allowed or take a mixture of paid and unpaid leave up to 19 January 2026. Because Mr Simpson did not immediately respond to that message, the Applicant perceived, unfairly in light of Mr Simpson’s earlier indicated support for her to take time off to 19 January 2026, that he was not supportive of the approach she proposed in her message. This provoked the Applicant to send the second message on 6 January 2026 in which she suggested Mr Simpson look for her replacement. This resulted in Mr Simpson’s response later on 6 January 2026 in which he observed she may not be well enough to remain in her role and proposed a mutually agreed separation if she agreed. The Applicant responded by agreeing to ‘his decision.’ This response is important as it indicates in my view that the Applicant believed the cessation of employment as proposed by the Respondent was not at her initiative. [43] I readily accept that the Applicant agreed to the proposal that there be a mutually agreed separation. However, that agreement needs to be seen in the context of the Applicant’s apparent state of mind at the time which I have discussed above, and that her agreement was rendered in circumstances where she was unable to properly fulfil the role requirements. I also note the Applicant’s evidence about her diagnosed anxiety and severe depression and that she was taking strong medication at the time of communicating her agreement to end her employment on 6 January 2026. Her misgivings were almost immediately apparent when she messaged Mr Simpson on 7 January 2026 that she felt sad at leaving and offered to continue to support the Respondent until it recruited her replacement. It should have been obvious to the Respondent that the Applicant’s agreement to a mutual separation on 6 January 2026 may not have been genuine and may have been given by her in a period of ‘emotional stress’. [44] Despite what should have been obvious, the Respondent did not seek to clarify with or question the Applicant on her apparent reservations about her proposed separation. Mr Simpson in his evidence explained that he did not seek to clarify the Applicant’s position after her 7 January 2026 message on the basis that she could have still declined to agree to the Termination of Employment Letter sent to her on 9 January 2026. I find that to be an unsatisfactory explanation when the terms of that letter did not invite the Applicant to agree or reject the mutually agreed separation. It simply recorded that a mutual agreement to end her employment had been reached on 6 & 7 January 2026. In the 9 January 2026 email from Mr Simpson to which the Termination of Employment Letter was attached, the Applicant was not invited to agree to the contents of the letter. She was simply invited to acknowledge receipt of the letter, which she dutifully did. To suggest as Mr Simpson did, that the Applicant had a choice on receipt of the letter on 9 January 2026 to revoke her agreement to end her employment, is rejected. The letter simply confirmed the end of the Applicant’s employment and brooked no disagreement in my view. [45] Further evidence of the Applicant’s strong misgivings about the mutually agreed separation can be seen in the Applicant’s subsequent communication with Mr Simpson on 15 January 2026 when she communicated that her health had improved such that she was available to assist until her replacement was found. [2026] FWC 2635 16 [46] In the circumstances described above, I find that the Applicant did not resign from her employment and that her agreement to the mutual separation of employment was provided while she was in an emotional state and was not genuine. I accept that she felt pressured by the Respondent and would not have felt she had a choice in circumstances where she had been unwell and was unable to fulfil the role requirements. I also accept based on my observation of the witness during her evidence that there was a degree of deference displayed by the Applicant towards Mr Simpson which also assists in explaining why the Applicant may have felt unable to resist the proposed mutually agreed separation. The Respondent failed to heed the obvious signals from the Applicant that she was not comfortable with her decision to end her employment. Mr Simpson did not check or clarify the Applicant’s intention. In my view he used the opportunity to ‘jostle’ the Applicant towards an employment separation. This leads me to find that the Applicant’s dismissal was at the Respondent’s initiative and that she was dismissed within the meaning of s 386(1)(a). [47] Having found that the Applicant was dismissed within the meaning of s 386(1) of the Act, I am required to deal with the second jurisdictional objection that the application was made out of time. It is to that I now turn. Should an extension of time be granted for the filing of the unfair dismissal application? [48] Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute if an application is made under s 365. For an application to be validly made under s 365, it (the application) must be made within 21 days after the dismissal took effect or such further period as the Commission allows pursuant to s 366 of the Act. [49] The Applicant’s dismissal took effect on 9 January 2025. The period of 21 days ended at midnight on 30 January 2026 and as the Application was made on 7 April 2026, it was filed 68 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s.366(2) of the Act. [50] The Act allows the Commission to extend the period within which a general protections dismissal dispute application can 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.48 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.49 [51] 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) 48 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]. 49 Ibid. [2026] FWC 2635 17 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. [52] 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); (d) the merits of the application; and (e) fairness as between the person and other persons in a like position. [53] 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. I now turn to consider these matters in the context of the Application. Reason for the delay [54] For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 30 January 2026. The delay is the period commencing immediately after that time until 7 April 2026, although circumstances arising prior to that day may be relevant to the reason for the delay.50 [55] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.51 An applicant does not need to provide a reason for the entire period of the delay although 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 the applicant’s favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay52. [56] The Applicant submits that the reason for the delay in filing the Application can be explained by the following. She says she was suffering from severe depression, rapid weight loss, worries about getting cancer and active trauma from workplace bullying and sexual abuse. She says these circumstances stripped her of her mental capacity to manage legal matters. She also refers to her frequent contact with Mr Simpson from 6 January to 19 March 2026 requesting her job back and that Mr Simpson gave her false hope that she would be rehired once her health stabilised. This she submits delayed her realisation that she had been constructively dismissed. 50 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP). 51 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]. 52 Ibid at [40]. [2026] FWC 2635 18 [57] Turning firstly to the Applicant’s medical condition. I accept that she had multiple medical appointments in the period prior to and following her dismissal for a range of conditions, that she was diagnosed with ‘severe depression and anxiety’ in mid-November 2025 and has been on prescribed medication for the condition since then.53 There is however no contemporaneous medical evidence which states that in the period immediately following her dismissal she was so incapacitated that she was unable to file the Application at an earlier time than she did. [58] In dealing with the medical evidence, I am guided by the comments of the Full Bench in Weir v Hydro-Chem Pty Ltd54 (Weir). That decision stands as authority for the proposition that the mere fact that an individual has been declared by a medical practitioner to be suffering from a particular condition does not mean the person is necessarily incapable of filing an application within the statutory time period and that each case will turn on its own facts and the medical information available. Weir was a decision dealing with an appeal of an earlier decision of Deputy President Lawrence in which the Deputy President had declined to grant an extension of time to an individual who had made a general protections application. Relevantly, Mr Weir had been diagnosed with an adjustment disorder and had provided medical evidence in the first instance proceedings. In considering the relevance of the medical evidence for the purposes of the appeal, the Full Bench said as follows: “[36] Individuals suffering with Adjustment Disorder with depressed and anxious moods will have varying degrees of capacity to undertake daily tasks, work obligations, family commitments and the like. We reject Mr Weir’s submission that adherence to the statutory time limit is unrealistic for each person who suffers from the condition. Each case will turn on its own facts and the medical information available for consideration. [37] Mr Weir is correct that the Commission must have regard for the medical opinion of a person’s practitioner. It is not correct, however, to conclude that simply because a medical practitioner declares a person to be suffering from a relevant condition it renders the person incapable of completing and lodging an application under the FW Act in the required time. It is a relevant consideration to be taken into account by the member of the Commission hearing the application for an extension of time together with all the other available information before the member.”55 [59] The Applicant’s actions in the wake of her cessation of employment tell strongly against the proposition she was incapable of filing the Application at an earlier time. See for example the stream of communication with Mr Simpson in the three months following the end of her employment, including on 15 January 2026 when she indicated that her health was better and expressed a willingness to assist the Respondent pending her replacement starting. The Applicant also had the capacity to travel to China between 12-26 February 2026 and was able to research her legal rights in the period from 25 March - 7 April 2026. Her attempts to reconcile that demonstrated capacity with her claim to have been unable to deal with legal matters was unconvincing. 53 Exhibit A1, Annexure YB-32 54 [2017] FWCFB 758 55 Ibid at [36]-[37] [2026] FWC 2635 19 [60] I do not accept on the basis of the Applicant’s demonstrated capacity to; engage with the Respondent in the immediate wake of her dismissal; travel internationally during February 2026; and research her legal rights from 25 March 2026; that her medical condition satisfactorily explains any part of the filing delay. [61] Turning to the Applicant’s submission that the Respondent gave her false hope that she might be re-employed. Contrary to the Applicant’s submission, there is no evidence that the Respondent by words or actions, conveyed to the Applicant that she might be re-employed. That she harboured such a hope was due to the Respondent politely responding to her various communications. While the Applicant may have perceived the responses from Mr Simpson as indicating re-employment was a prospect, an objective assessment of the communication does not support such a conclusion. [62] At no point in the period following her cessation of employment did the Respondent state that the Applicant would be re-employed, would be offered work or that her previous position remained available. The contrary is in fact true. The Applicant was aware on 15 January 2026 that her position had been advertised, and it was confirmed to her on 19 March 2026 that her replacement had been recruited. She could not have been under any illusion after 19 March 2026, if not well before then, that she would not be returning to her former role with the Respondent. No false hope was held out to her by the Respondent as alleged by the Applicant. The claim that the delay in filing the Application was caused in part by the Respondent’s action in holding out the prospect of re-employing the Applicant is rejected. The Applicant was aware her employment had ended, ought to have understood that she would not be re-employed and if aggrieved at that outcome could have taken steps at an earlier date to file the Application. [63] It follows from the foregoing that the Applicant has failed to advance an acceptable explanation for her delay in filing the Application. This weighs against a finding of exceptional circumstances. Action taken to dispute the dismissal [64] While the Applicant maintained contact with the Respondent in the wake of her dismissal, offering to assist and expressing interest in continuing to work for the Respondent, I do not regard those actions as challenging or disputing the alleged dismissal. I am satisfied that the Applicant took no action to dispute her dismissal other than by filing the Application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances. Prejudice to the employer [65] The Application was filed 68 days outside of the 21-day period. The Applicant was also aware that the Respondent needed to fill her former role, as evidenced by various communication between the Applicant and Mr Simpson both before and after the cessation of the Applicant’s employment. I find in the circumstances; there would be prejudice to the Respondent if an extension of time were to be granted. This arises from both the significant delay in the filing of the Application and the fact that the Applicant’s former role has now been filled. I regard this factor as weighing against a finding of exceptional circumstances. [2026] FWC 2635 20 Merits of the Application [66] As to the merits of the application, the Applicant contends that the Respondent took adverse action for a prohibited reason by dismissing her because she exercised workplace rights including by taking stress leave supported by medical certificates, reporting unlawful workplace misconduct and raising the prospect of making a workers compensation claim. She also refers to having exercised a workplace right on 9 January 2026 and been subject to post- termination harassment by the Respondent. Finally, the Applicant alleges that by expanding her role to Company Secretary and Director of the holding company, the Respondent has engaged in major breaches of various acts including the Corporations Act 2001 (Cth), the Privacy Act 1988 (Cth), and Crimes Act 1958 (Vic). [67] The Respondent denies that the Applicant raised a sexual harassment complaint with Mr Simpson on 9 December 2025 as claimed by her. It further rejects that the Applicant’s claimed requests for workplace adjustments, purportedly relying on text messages sent to Mr Simpson after 9 January 2026, constitutes the exercise of workplace rights in circumstances where those messages were sent following the cessation of employment. The Respondent also submits that the basis of alleged breaches of unspecified provisions of the Corporations Act 2001 (Cth), the Privacy Act 1988 (Cth) and Crimes Act 1958 (Vic) are entirely unclear, and no particulars have been provided in support of the allegations. [68] I note that the allegations as to contravention of the general protections provisions are disputed by the Respondent. In applications of this kind, being interlocutory in nature, it is inappropriate to express a concluded view about the merits of an application. Nor is it possible to thoroughly test the disputed claims. In any event, in applications under s 365, the Commission’s function at this stage of an application is to convene a conference, not determine the merits. It is sufficient for present purposes to note that on the material available to me, the Applicant has an arguable case as to a contravention of the general protections provisions of the Act and the Respondent has raised a prima facie defence. I consider the merits to be a neutral consideration. Fairness as between the person and other persons in a similar position [69] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts. [70] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances. Summary on extension of time considerations [71] Having regard to the matters I am required to take into account under s 366(2) of the Act, and all of the matters raised by the Applicant and outlined above, I am not satisfied that [2026] FWC 2635 21 there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Conclusion [72] I have found that the applicant was dismissed within the meaning of s. 386(1)(a) of the Act as contended by her. Accordingly, at the time the Applicant made the Application, she was a person who has been dismissed for the purposes of s 365 of the Act. [73] I have further found in considering whether to grant an extension of time that exceptional circumstances are not present in this case. Because I am not satisfied there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2) of the Act. Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision. DEPUTY PRESIDENT Appearances: Y Bai, Applicant. G Stephens for the Respondent. Hearing details: 2026. Melbourne. July 1. Printed by authority of the Commonwealth Government Printer <PR812004>