1
Fair Work Act 2009
s.365—General protections
Cody-Lee Doubleday
v
Wodonga Electrical Pty Ltd
(C2024/6892)
COMMISSIONER FOX MELBOURNE, 13 FEBRUARY 2025
Application to deal with contraventions involving dismissal – Application alleged to have
been filed outside the 21-day timeframe – Applicant is found to have resigned – No
exceptional circumstances found – Extension of time not granted – Application dismissed.
[1] On 26 September 2024, Mr Cody-Lee Doubleday filed an application under s.365 of the
Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a general protections
dispute involving dismissal against Wodonga Electrical Pty Ltd (the Respondent).
[2] In his Form F8, Mr Doubleday stated that he was dismissed from his employment on 13
September 2024. Mr Doubleday filed his application with the Commission on 26 September
2024, which is within 21 days of his dismissal, as required under s.366(1)(a) of the Act.
However, in its Form F8A, the Respondent raised a jurisdictional objection to Mr Doubleday’s
application, contending that Mr Doubleday was dismissed on 28 August 2024, and had
therefore filed his application outside the 21-day timeframe.
[3] The matter was referred to me for the hearing of this jurisdictional objection. I issued
Directions for the matter and the parties filed material in accordance with these Directions. This
material was compiled into a Digital Hearing Book, and at the commencement of the
Determinative Conference, noting that there were no objections from either party, I admitted
into the evidence this Digital Hearing Book.
[4] Section 366(2) of the Act allows the Commission to consider extending the period
within which a general protections application involving dismissal may be made, if it is satisfied
that there are exceptional circumstances. I can only exercise my discretion if I am satisfied that
there are exceptional circumstances.
[5] The meaning of “exceptional circumstances” was considered and summarised by the
Full Bench in Nulty v Blue Star Group:1
“[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
[2025] FWC 82
DECISION
AUSTRALIA FairWork Commission
[2025] FWC 82
2
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.”
[6] In the conduct of this matter, a further jurisdictional issue arose. At the Determinative
Conference, and in the material filed, Mr Doubleday asserted that he had resigned from his
employment voluntarily and was not dismissed by the Respondent. Whilst this is a general
protections involving dismissal application, and not a remedy for unfair dismissal application,
pursuant to the reasoning of the Full Bench in Lisha Herc v Hays Specialist Recruitment
(Australia) Pty Ltd,2 I will consider whether an extension of time should be granted.
Nevertheless, as outlined below, Mr Doubleday’s reason for the delay is inextricably linked to
the question of whether he resigned.
[7] The Commission must consider the factors set out in s.366(2) of the Act in determining
whether there are exceptional circumstances which warrant the granting of an extension of time.
These factors are as follows:
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.
[8] I consider that the reason for the delay, and whether there was any action taken by Mr
Doubleday to dispute the dismissal, turns on when, and indeed if at all, Mr Doubleday was
dismissed
[9] In March 2024, the Respondent employed Mr Doubleday to perform electrical work.
Issues arose between the parties regarding Mr Doubleday’s performance. Matters came to a
head on 28 August 2024 when a discussion took place between Mr Doubleday and one of the
Respondent’s Directors, Mr Matthew Moodie. It was Mr Doubleday’s evidence that when he
came to work the next day, on 29 August 2024, he resigned and advised the Respondent that he
would be going on what he termed ‘immediate leave’, in lieu of working out his one-week
notice period.3
[10] While it was Mr Doubleday’s intention to use his paid leave instead of working out his
notice period, the Respondent instead elected to pay him two days of leave for the 29th and 30th
of August and paid the remaining leave balance out in his final pay – effectively waiving the
remainder of the notice period. This is consistent with the final timesheet Mr Doubleday sent
[2025] FWC 82
3
to Ms Ebony Rahaley, a Director of the Respondent, setting out the hours he worked and the
leave for his final week as follows:4
26/8 7 –3.30 Benalla 8 hours
27/8 7 –3.30 Yarrawonga 8 hours
28/8 7 – 3.30 Sothervale 8 hours
29/8 LEAVE 8 hours
30/8 LEAVE 8 hours
+Remaining leave
[11] It was Ms Rahaley’s evidence that she paid Mr Doubleday’s final pay as per the
timesheets he submitted – the only difference being that she paid out the ‘+remaining leave’
owing as at the end of the pay period ending 30 August. If, as the Respondent contends in its
Form F8A, Mr Doubleday had been terminated on 28 August 2024, then it does not accord with
Mr Doubleday’s final payslip, which shows that he was on paid leave on 29 and 30 August
2024.
[12] Mr Doubleday’s final payslip stated that his employment ended via ‘normal
termination’.5 At the Determinative Conference, it was Ms Rahaley’s evidence that the payroll
software used by the Respondent has a drop-down menu which has a list of pre-formatted
reasons as to why the employment relationship ended. It was her evidence that she would almost
always select ‘normal termination’ when someone finished their employment, regardless of
whether they resigned or had been dismissed.
[13] It is evident from the correspondence between the parties that Mr Doubleday did not
take issue with the payout of his leave and the notice period being waived, although he did have
a concern with the calculation of his final pay. On 6 September 2024, Mr Doubleday emailed
Ms Rahaley enquiring as to why his annual leave loading had not been paid as part of his final
pay.6
[14] On 13 September, Mr Doubleday emailed Ms Rahaley noting the lack of response to his
earlier enquiry and attached to this correspondence a ‘notice of intent’.7 A copy of this notice
of intent was not filed by either party in the proceedings. When responding to Mr Doubleday’s
email, Ms Rahaley wrote the following: ‘(y)ou were fired due to misconduct, insufficient work
quality and refusing to follow instructions.’8 Mr Doubleday then responded as follows: ‘I was
not fired, I received no notice or warnings and therefore no sufficient time or solution to rectify
issues. I quit without notice, agreed in the moment.’9
[15] It is apparent from these emails that there was disagreement as to how the employment
relationship came to an end, and that Ms Rahaley’s email of 13 September prompted Mr
Doubleday to consider that his employment had been terminated. This characterisation by Ms
Rahaley was evidently a surprise to Mr Doubleday as he believed he had resigned from his
employment.
[16] At the Determinative Conference, it was Ms Rahaley’s evidence that she thought Mr
Doubleday had been handed a termination letter dated 7 August 2024 by Mr Moodie, and that
she believed that it had been communicated to Mr Doubleday that he was being terminated,
with the effective date of dismissal to be 22 August 2024. Further, it was her evidence that she
[2025] FWC 82
4
was of the view (mistakenly) that Mr Doubleday was not entitled to the payment of annual leave
loading because he had been terminated.
[17] It was Mr Doubleday’s evidence that a discussion did occur with Mr Moodie regarding
his work performance at that time. However, Mr Doubleday submitted that he was never given
a copy of this termination letter, nor was he advised that his employment was being terminated.
Instead, it was his evidence that during this discussion an agreement was reached between
himself and Mr Moodie that they would agree to work on improving their working relationship.
[18] Ms Rahaley’s evidence was that she was unaware that Mr Doubleday had not received
this letter of termination, and that she was not aware of the outcome of the discussion between
Mr Moodie and Mr Doubleday, as she had only just returned from a period of parental leave
and was busy dealing with other matters. Ms Rahaley was not present when this discussion
occurred but contradictorily, also gave evidence that Mr Doubleday received the letter but then
put it aside and disregarded it. It is unclear how she came to hold this view if she was not present
when this discussion occurred. Ms Rahaley did not give any evidence as to this conversation
that took place between Mr Moodie and Mr Doubleday.
[19] Mr Moodie did not give evidence at the Determinative Conference.
[20] Critically, Ms Rahaley gave evidence that in her email of 13 September to Mr
Doubleday, she had written that he was terminated, in the ‘heat of the moment’ and as she was
attempting to let Mr Doubleday know why the Respondent would not be providing him with a
reference. Overall, I found Ms Rahaley’s evidence to be at times evasive and inconsistent in
relation to Mr Doubleday's employment ending.
[21] A dismissal does not take effect unless and until it is communicated to the employee.
The Respondent provided no evidence of Mr Doubleday being dismissed and a dismissal being
communicated to Mr Doubleday. It is Mr Doubleday’s evidence that following a conversation
on 29 August with Mr Moodie, he resigned. I found Mr Doubleday's evidence to be credible
and consistent. On the evidence before me, I find that Mr Doubleday was not dismissed, but
rather, resigned voluntarily from his employment on 29 August 2024. He was on paid leave
until 30 August, which was his last day of employment.
[22] It may be argued that the Respondent’s actions in electing to pay out Mr Doubleday’s
remaining leave on 30 August 2024 as a lump sum may constitute a termination at the initiative
of the employer pursuant to the Decision of Commissioner Roberts in Isabel Nohra v Target
Australia Pty Ltd.10 However, noting that Mr Doubleday had approximately 38 hours of unused
leave entitlements left, I do not consider that the Respondent’s actions in bringing forward the
effective date of dismissal constitute a dismissal. Pursuant to a Full Bench of the Commission’s
predecessor in ABB Engineering Construction Pty Ltd v Doumit,11 I contend that the
‘circumstances of the case do not establish matters of fact or degree that would justify [my]
finding that the employer took advantage of the resignation to in effect substitute a termination
of the employment on its own initiative.’12
[23] Mr Doubleday’s belief that he was dismissed arose due to the confusion created by the
Respondent’s correspondence of 13 September 2024. This correspondence alerted Mr
Doubleday to the Respondent’s view that he had been dismissed. It is evident that the reason
[2025] FWC 82
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for the delay was because Mr Doubleday did not ‘know’ that he had been dismissed. If he was
not aware he had been dismissed, then he was unable to dispute the ‘dismissal’, which in turn
caused the late filing of his application. As soon as Mr Doubleday became aware of the
Respondent’s view that he had been dismissed, he took action to challenge the ‘dismissal’.
[24] In the ordinary circumstance where an applicant is not aware they have been dismissed
but upon discovering so then challenges it with the employer, and then files their application, I
may likely consider the reason for the delay, and the action taken to dispute the dismissal would
weigh in favour of a finding of exceptional circumstances. However, I do not consider it
appropriate in this case to make such a finding when it has been established that Mr Doubleday,
regardless of the correspondence of 13 September, was not dismissed. I therefore weigh these
two factors as neutral.
[25] I consider that there is no prejudice to the employer beyond what is ordinarily expected
of a Respondent and therefore consider this to be a neutral factor. Further, neither party
provided any substantive submissions with respect to fairness as between the person and other
persons in a similar position and therefore, I also consider this factor to be a neutral
consideration.
[26] In considering the merits of the application, the Commission can only proceed with a
s.365 general protections dispute involving dismissal where there has been a dismissal. In this
case, as I have determined that there was no dismissal, Mr Doubleday’s application cannot
proceed. I find that this weighs significantly against the granting of an extension of time.
[27] In consideration of all the factors, of which four are neutral and one which weighs
significantly against, I do not exercise my discretion to grant an extension of time.
[28] For completeness, I shall now also specifically address s.386(1) of the Act. Section 365
of the Act empowers the Fair Work Commission to deal with a general protections dispute
involving dismissal. If there is no dismissal, then an application cannot proceed.
[29] Section 386(1) of the Act states as follows:
Meaning of ‘dismissed’
(1) [When a person has been dismissed] 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.
[30] As outlined above, I am of the view that Mr Doubleday resigned. As such, on the
evidence before me, I do not consider that Mr Doubleday was dismissed at the initiative of the
employer on 28 August, or at any other time, as per s.386(1)(a) of the Act. It is Mr Doubleday’s
evidence that he voluntarily resigned from his employment on 29 August 2024. He does not
assert, nor is there any evidence, that he was forced to do so because of the conduct of the
Respondent. It is evident from the emails exchanged between the parties and Mr Doubleday’s
[2025] FWC 82
6
oral evidence that he intended to, and did, voluntarily resign. As such, I do not consider that
s.386(1)(b) has any application in this matter.
[31] Having also determined that Mr Doubleday resigned from his employment, I find that
the Commission does not have jurisdiction to deal with his general protections application.
[32] Mr Doubleday’s application is dismissed and an Order13 to this effect will be issued
with this Decision.
COMMISSIONER
Appearances:
C Doubleday on his own behalf.
E Rahaley for the Respondent.
Determinative Conference Details:
2024.
Melbourne (By Video using Microsoft Teams):
10 December.
Printed by authority of the Commonwealth Government Printer
PR783125
1 [2011] FWAFB 975.
2 [2022] FWCFB 234.
3 Digital Hearing Book (‘DHB’) page 18.
4 Ibid page 70.
5 Ibid page 60.
6 Ibid page 17.
7 Ibid page 26.
8 Ibid.
9 Ibid page 27.
10 [2010] FWA 6857 [10]–[11].
AIR WORK COMMISSION AL CAL OF THE
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb975.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb234.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa6857.htm
[2025] FWC 82
7
11 Print N6999, 9 December 1996 per Munro J, Duncan DP and Merriman C.
12 Ibid.
13 PR784201.
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr784201.pdf
