Amba McWilliam v Sydney Harbour Escapes Pty Limited

[2025] FWC 2350

[2025] FWC 2350

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Amba McWilliam
v

Sydney Harbour Escapes Pty Limited

(C2025/5855)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 12 AUGUST 2025

General protections application filed out of time – circumstances not exceptional – application dismissed.

Introduction

1. This decision concerns an application by Ms Amba McWilliam (Applicant) for the Fair Work Commission (Commission) to deal with a general protections dispute pursuant to s 365 of the Fair Work Act 2009 (Act) against her former employer, Sydney Harbour Escapes Pty Limited (Respondent).

1. The Applicant seeks an extension of time to lodge her general protections application in the Commission.

1. I conducted a hearing, by telephone, on 11 August 2025 in relation to the Applicant’s request for an extension of time. At the hearing, I admitted into evidence all documents contained in the digital hearing book prepared by the Commission, including all documents filed and served by the Applicant and the Respondent in relation to the Applicant’s request for an extension of time.[1]

1. The Applicant was dismissed on 17 March 2025 and lodged her general protections application in the Commission on 19 June 2025.

1. Section 366(1) of the Act states that an application under s 365 must be must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 366(2). The period of 21 days ended at midnight on 7 April 2025. The application was therefore filed 73 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).

1. The Act allows the Commission to extend the period within which a general protections application must 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.[2] 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.[3]

1. 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) 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.

1. 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 similar position.

1. 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 will now consider these matters.

Reasons for the delay

1. The delay required to be considered in s 366(2)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[4] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[5]

1. The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. 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.[6]

1. On 6 April 2025, the Applicant filed an unfair dismissal application in the Commission.

1. On 7 May 2025, the Applicant and Respondent participated in a conciliation conference before a conciliator in relation to the Applicant’s unfair dismissal application. The matter did not settle at that conciliation conference.

1. Later on 7 May 2025, the Applicant says that she received a telephone call from a director of the Respondent in which the director made a number of threats to her, including a sexually aggressive threat. The Applicant called 000 to report the matter. She also reported the incident to local Police and the Commission. I accept the Applicant’s contention that in the weeks that followed 7 May 2025, she experienced significant emotional distress, fear of retaliation, and difficulty knowing how to proceed. The Applicant also experienced financial stress and was unable to access her usual General Practitioner.

1. On the morning of 22 May 2025, the Applicant sent a long email to the chambers of Deputy President Roberts, who was dealing with the Applicant’s unfair dismissal matter. Towards the end of that email, the Applicant stated the following:

“While I remain open to engaging in conciliation today, and to resolving this matter in good faith, I must be clear that if a resolution is not reached, I intend to apply for this claim to be reclassified to a General Protections (Dismissal) application due to the serious nature of the Respondent’s conduct.”

1. Later on 22 May 2025, the Applicant participated in a directions hearing of her unfair dismissal matter before Deputy President Roberts. The Applicant raised a concern that a general protections application may more appropriately reflect the seriousness of the Respondent’s post-conciliation conduct. The Applicant was informed that she would need to file a separate general protections application if she wished to pursue such a claim.

1. On 16 June 2025, the Applicant sent quite a detailed letter to the Commission requesting to withdraw her unfair dismissal application.[7] The letter provided, in part, the following explanation for the request to withdraw the unfair dismissal application:

“I now write to formally request the withdrawal of my unfair dismissal application, originally filed in relation to the termination of my employment by Sydney Harbour Escapes/Steven Zhang on 17 March 2025.

This request is made in good faith and follows serious and unforeseen developments that have come to light during the course of this process – including threatening and coercive conduct directed at me following my initial claim. These events have fundamentally changed the nature of the matter, and I now understand this jurisdiction lacks provision to apply adequate or appropriate framework to address the issues now in question.

While I had strong grounds to challenge the Respondent’s claimed a small business status – and was prepared to demonstrate that within the current process – the nature and extent of the conduct I have since been subjected to, and the impact it has had across multiple areas of my life, has led me to reconsider how best to proceed.

In good conscience, I feel it is necessary to redirect this matter through a process that more appropriately responds to the seriousness of the behaviour involved…”

1. The reference in the Applicant’s 16 June 2025 letter to the Respondent’s “small business status” related to jurisdictional objections raised by the Respondent to the Applicant’s unfair dismissal application. In particular, the Respondent contended that the Applicant had not completed the minimum period of employment (12 months) and had complied with the Small Business Fair Dismissal Code in relation to the Applicant’s dismissal.

1. On 17 June 2025, Deputy President Roberts’ chambers informed the parties that the Applicant’s unfair dismissal application had been discontinued and the Commission would close its file in relation to the matter.

1. On 19 June 2025, the Applicant lodged her general protections application in the Commission.

1. The Applicant says that the delay in lodging her general protections application was not due to inaction or indifference, but the result of deep shock and trauma she was processing, including a sexual threat, subsequent safety concerns, psychological distress, and confusion around the legal process.

1. Having regard to all the circumstances, I am not satisfied that the Applicant has an acceptable or reasonable explanation for the 73 day delay in lodging her general protections application in the Commission. I accept that the Applicant has a reasonable explanation for the delay in the period from 7 May 2025 until the end of May 2025. The threats made to the Applicant on 7 May 2025 were serious and caused the Applicant a significant amount of shock and distress. However, it is apparent from the communications summarised above that by about 22 May 2025 the Applicant was aware of the availability of making a general protections application and had decided to make such an application. The Applicant was able to participate in the directions hearing before the Commission on 22 May 2025 and correspond in detail with the Commission at that time. Once the Applicant became aware at the directions hearing on 22 May 2025 that she would need to make a new application if she wished to pursue a general protections case, it would have been reasonable for the Applicant to take a little time to prepare and lodge her general protections application in the Commission. That is why I consider that the Applicant has a reasonable explanation for the delay in the period from 7 May 2025 until the end of May 2025. However, it took another 19 days from the end of May 2025 for the Applicant to lodge her general protections application in the Commission on 19 June 2025. I do not consider that the Applicant has a reasonable or acceptable explanation for this 19 day delay.

Action taken to dispute the dismissal

1. I accept that the Applicant took steps to challenge her dismissal, including by lodging her unfair dismissal application in the Commission within 21 days of her dismissal and making several phone calls and formal written correspondence in which she raised specific concerns about her dismissal and procedural flaws in the dismissal process.

Prejudice to the employer

1. I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

1. The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the general protections application are set out in the materials that have been filed, and I do not repeat them here.

1. The Applicant contends that various workplace rights which she believes she exercised prior to her dismissal, including raising concerns about another staff member’s pay classification and entitlements, requesting information about her leave balance and challenging inaccuracies in relation to it, questioning internal payment processes and discrepancies in financial records, sending internal communications about employee rights and entitlements, and taking and supporting other employees to take legitimate personal and annual leave, contributed to the Respondent’s decision to terminate her employment. The Applicant also contends that various action on the part of the Respondent after her dismissal, including making threats on 7 May 2025, somehow breached the general protections provisions of the Act. Further, the Applicant contends that the Respondent made a mention of the Applicant’s hip pain as part of its justification for her dismissal. The Applicant contends that this constitutes adverse action based on a perceived physical disability, in breach of s 351 of the Act.

1. The Respondent denies that it has contravened any of the general protections provisions in the Act. It contends that the Applicant was dismissed on the basis of repeated and well-documented performance issues and unauthorised absences.

1. There are some aspects of the Applicant’s general protections application that are arguable, while other aspects are not. The contention made by the Applicant that she was dismissed because she exercised workplace rights by making complaints and inquiries in relation to her employment is arguable. Whether such a claim would succeed would depend on a full examination of the evidence, including cross examination of relevant witnesses. In the same category is the Applicant’s claim that her hip pain played an operative role in the Respondent’s decision to terminate her employment. However, the aspects of the Applicant’s claim concerning threats and other conduct which allegedly took place after the termination of the Applicant’s employment do not have reasonable prospects of success under the general protections provisions of the Act. Those provisions relevantly focus on an employer’s action against a person who is an employee, not a former employee.[8]

1. Having regard to all the circumstances, I consider the merits of the application to be a neutral matter.

Fairness as between the person and other persons in a similar position

1. 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. In all the circumstances, I consider this factor to be a neutral consideration.

Conclusion

1. I have given close attention to the detailed material provided by the Applicant to support her application for an extension of time. I have sympathy for the Applicant’s circumstances and the difficulties she has experienced since 7 May 2025. However, taking into consideration 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, I am not satisfied that there are exceptional circumstances in this case. While the Applicant took action following her dismissal to dispute it and she has a reasonable explanation for part of the delay in lodging her general protections application in the Commission, the balance of the considerations are neutral or weigh against a finding of exceptional circumstances. In my assessment, the overall circumstances of this case are not out of the ordinary course, unusual, special or uncommon.

1. Because I am not satisfied that 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). Accordingly, the Applicant’s general protections application must be dismissed.

DEPUTY PRESIDENT

Appearances:

Ms A. McWilliam, appeared for herself

Hearing details:

2025.
Newcastle (by telephone):
11 August.

[1] Ex 1

[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

[3] Ibid.

[4] Long v Keolis Downer[2018] FWCFB 4109 at [40]

[5] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

[7] Ex 1 at p 45

[8] See, for example, ss 351 and 342 of the Act

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