Chelsea Evans v Malex Facial Aesthetics Pty Ltd
[2025] FWC 3152
•23 OCTOBER 2025
| [2025] FWC 3152 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Chelsea Evans
v
Malex Facial Aesthetics Pty Ltd
(C2025/8907)
| DEPUTY PRESIDENT DEAN | CANBERRA, 23 OCTOBER 2025 |
Application to deal with contraventions involving dismissal – exceptional circumstances - extension of time granted.
This decision concerns an application made by Ms Chelsea Evans (Applicant) on 4 September 2025 under s.365 of the Fair Work Act 2009 for the Commission to deal with a general protections dispute involving her alleged dismissal by Malex Facial Aesthetics Pty Ltd (Respondent).
The Applicant claims that she was dismissed, effective 12 August 2025.
The Respondent disputes that the Applicant was dismissed. The Respondent says the Applicant had been on personal leave for approximately 3 months. Her most recent medical certificate covered the period 16 July to 15 August 2025, and she had exhausted her paid leave entitlement as at 5 August 2025 and was then on unpaid leave.
The Applicant made two applications to the Commission on 16 August 2025, those being an application for an unfair dismissal remedy under s.394 of the Act filed at 3.44pm, and a general protections application under s.365 of the Act filed at 8.02pm.
Section 366(1) of the Act requires 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 s.366(2).
The Respondent accepts that the lodgement of the general protections application filed on 16 August 205 was made within time, assuming the Applicant was dismissed (which the Respondent disputes).
On 4 September 2025, a staff member of the Commission contacted the Applicant by telephone advising that she could only file one application, and the second application filed (that being the general protections application) was considered invalid under s.725 of the Act. The Applicant was advised that if she wished to proceed with a general protections application, she was required to discontinue both applications and submit a new, valid general protections application.
I note that section 725 prohibits the making of multiple applications in relation to the same dismissal. Specifically, a second application must not be made in relation to the same dismissal if the first application had not concluded at the time the second application was made. Importantly, the second application (that being the general protections application) cannot continue even if the first application is discontinued because s.725 applies to the time the second application was made.
The Applicant subsequently discontinued both applications and made a new general protections application around 30 minutes after receiving the phone call from the Commission staff member on 4 September 2025.
As a result, the current application was made 2 days outside the 21-day time period prescribed by the Act and may only proceed if the Commission allows an extension of time.
This decision deals only with whether time should be extended for the application to proceed. The second jurisdictional objection, that being whether the Applicant was dismissed, will be the subject of a separate hearing if time is extended.
The application was listed for hearing on 22 October 2025 to consider whether further time should be allowed for the application to be made. At the hearing, Mr Alex Ronayne appeared with permission for the Applicant and Ms Alice Laurence appeared with permission for the Respondent.
Extension of time
The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]
Section 366 of the Act provides:
366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:
“[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, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
The onus of establishing exceptional circumstances lies with the Applicant.
I will now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
The period of delay requiring explanation is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason supports a finding that there are exceptional circumstances.[3]
The Act does not specify what reason for the delay might weigh 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 assessing whether exceptional circumstances exist, while 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.[4]
As explained earlier, the Applicant made two applications and was required to discontinue both in order to proceed with a general protections application. She was not advised of this until after the 21-day time period had elapsed. I consider this to be an acceptable reason for the delay in making this application.
Any action taken by the person to dispute the dismissal
The Applicant did not consider other steps were required to be taken given she filed two applications with the Commission within the 21 day timeframe.
Prejudice to the employer (including prejudice caused by the delay)
The delay is relatively short and I do not consider the Respondent would suffer any prejudice if an extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time.
The merits of the application
In Nulty v Blue Star Group Pty Ltd[5], the Full Bench said:
“It would appear that this factor, described in the Act as ‘the merits of the application’ is directed towards some elementary assessment of the potential prospects of the matter if the extension was granted and the matter proceeded to hearing and ultimately determination.”
For the purpose of determining whether to grant an extension of time for the Applicant to file this application, the Commission ‘should not embark on a detailed consideration of the substantive case.’[6]
The Applicant says she was not formally dismissed but her last payment was made to her on 13 August 2025 after which she was not offered any further shifts.
The Respondent says the Applicant was on personal leave and was not dismissed.
On the limited evidence before me, it is not possible to form a view about the merits of the application. I therefore consider the merits to weigh neither for nor against a finding of exceptional circumstances.
Fairness as between the person and other persons in a similar position
Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[7] considered this criterion and said ‘cases 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.’[8]
Neither party raised any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.
Conclusion
Having considered all of the matters the Commission must take into account, I am satisfied that there are exceptional circumstances which warrant my granting an exception to the statutory time limit. The circumstances in which two applications were filed by the Applicant within time, and were both required to be discontinued in order to proceed with the second application she filed, that being a general protections application, are out of the ordinary. Accordingly, an extension of time is granted and the application can proceed.
DEPUTY PRESIDENT
Appearances:
A Ronayne of Ronayne Owens Lawyers for Chelsea Evans.
A Laurence of Kells Lawyers for Malex Facial Aesthetics Pty Ltd.
Hearing details:
2025.
By Telephone:
October 22.
[1] [2016] FWCFB 6963.
[2] [2011] FWAFB 975.
[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] [2011] FWAFB 975.
[6] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
[7] [2015] FWC 8885.
[8] Ibid at [29].
Printed by authority of the Commonwealth Government Printer
<PR792832>
0
0
0