Ami Chandrakant Patel v Minit Australia Pty Limited [2026] FWC 2872

1 Fair Work Act 2009 s.365—General protections Ami Chandrakant Patel v Minit Australia Pty Limited (C2026/7396) COMMISSIONER MATHESON SYDNEY, 7 AUGUST 2026 Application made under s 365 – extension of time – application dismissed [1] Ms Ami Chandrakant Patel (Applicant) has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth)(Act) in which she alleges that she was dismissed by Minit Australia Pty Limited (Respondent) in contravention of Part 3-1 of the Act. Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2). [2] The Applicant resigned from her employment on 11 April 2026 and her employment ended on 18 April 2026. The Applicant submitted that she was constructively dismissed because the Respondent’s conduct left her with no real or practical choice but to resign. [3] While it is unclear as to whether the Applicant was dismissed within the meaning of s.386 of the Act, the Applicant’s employment did ultimately end on 18 April 2026. A question arises as to whether the question of whether an extension of time should be allowed can be determined without there being a finding of dismissal. Graeme Taylor v Department of Justice and Community Safety1 involved an appeal against a decision at first instance, in which the Deputy President had dismissed an unfair dismissal application on the basis that it was lodged outside the 21-day time limit prescribed by s.394(2)(a) of the Act and she was not satisfied there were exceptional circumstances to extend time under s.394(3) of the Act. In doing so, the Deputy President had assumed that the Applicant had been dismissed for the purposes of determining whether the Application was made within 21 days and if not, whether time should be extended pursuant to s.394(3) of the Act.2 [4] The Full Bench in Graeme Taylor v Department of Justice and Community Safety3 noted that in Coles Supply Chain Pty Ltd v Milford,4 the Full Court made observations about whether 1 [2025] FWCFB 173. 2 [2025] FWCFB 173 at [48] – [49]. 3 [2025] FWCFB 173. 4 (2020) 297 FCR 591. [2026] FWC 2872 DECISION -- 1 of 9 -- [2026] FWC 2872 2 there were cases where the Commission could avoid drawing a conclusion as to whether or not a dismissal had occurred and still proceed to determine an application for an extension of time on the assumption there was a dismissal, with the Full Court stating: ‘[59] As discussed later in these reasons, there may be cases where the FWC may avoid drawing a conclusion as to whether or not an employment relationship has ended in circumstances that amount to a dismissal, and proceed to determine an application for an extension of time on the assumption that it has so ended. But on an application for an extension of time, ascertainment of the length of the delay between the date that the relationship ended and the expiration of the statutory time limit must be identified. … [86] In an appropriate case, it may also be permissible for the FWC to determine that the employment came to an end on a particular date without deciding whether or not the applicant was “dismissed” with the meaning of s 386 of the FW Act. In such a case it may be permissible to refuse to grant an extension of time even assuming, for the employee’s benefit, that there was indeed a dismissal.’ [5] The Full Bench went on to say: ‘[72] We note that these observations are subject to a qualification, expressed in paragraph [86] of Coles v Milford cited above, of “an appropriate case”. The Court did not identify the parameters of any such appropriate case. However, we consider that if these observations have application to an unfair dismissal application, an “appropriate case” to proceed on the basis of an assumed dismissal in determining an application for extension of time, includes one where an employee has resigned, there is a dispute about whether or not the resignation was “forced” within the meaning of s 386(1)(b) but there is no dispute as to the date the employment came to an end. This course would be consistent with the object of Part 3-2 set out in s 381(1)(b), being “to establish procedures for dealing with unfair dismissal that are: (i) quick, flexible and informal; and (ii) address the needs of employers and employees”. [73] However, the issues in Mr Taylor’s case did not fall within this limited category. In that regard, the issues in Mr Taylor’s case involved, firstly, a contest between the parties as to whether or not there had been a dismissal at all, noting DJCS’s contention that the imposition of the disciplinary sanction of demotion and transfer was authorised by the VPS Agreement and secondly, if the first issue was decided against DJCS, a contest as to the date the dismissal took effect. [74] Consequently, we remain of the view set out in paragraph [69] above, that the Deputy President’s decision involved an error of jurisdiction.’ [6] As can be seen above, the Full Bench in Graeme Taylor v Department of Justice and Community Safety5 identified that in the context of an unfair dismissal, an appropriate case to 5 [2025] FWCFB 173. -- 2 of 9 -- [2026] FWC 2872 3 proceed on the basis of an assumed dismissal in determining an application for an extension of time includes one where: 1. an employee has resigned; 2. there is a dispute about whether or not the resignation was forced within the meaning of s.386(1)(b); and 3. there is no dispute as to the date the employment came to an end. [7] The Full Bench decision was in the context of an unfair dismissal application to which the objects of Part 3-2 applied. The object set out in s.381(1)(b) does not apply to general protections applications. Notwithstanding this, s.577 requires the Commission to perform its functions and exercise its powers in a manner that, among other things, is quick, informal and avoids unnecessary technicalities (s.577(1)(b)). Further, the Full Court contemplated that there may be an ‘appropriate case’ in which it is permissible for the Commission to determine that the employment came to an end on a particular date without deciding whether or not the applicant was ‘dismissed’ with the meaning of s.386 of the Act and that in such a case it may be permissible to refuse to grant an extension of time even assuming, for the employee’s benefit, that there was indeed a dismissal.6 In the current matter there is no dispute about the date on which the employment came to an end, being 18 April 2026. Determination of the dismissal question would unnecessarily protract proceedings, and I consider that in the circumstances of this case, it is appropriate to proceed on the basis of an assumed dismissal in determining an application for extension of time. [8] The Applicant’s employment came to an end on Saturday 18 April 2026. The 21-day period ended on Monday 11 May 2026 (see s 40A of the Act, and s 36 of the Acts Interpretation Act 1901 as in force on 25 June 2009). The application was lodged on 15 June 2026. For the application to proceed, the Applicant requires an extension of time. The Commission may allow a further period only if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in s 366(2)(a) to (e). Section 366(2)(a) – reason for the delay [9] As to the reason for the delay (s 366(2)(a)), the Applicant said the delay occurred because immediately after her employment ended, she was dealing with a series of unusual, urgent and interconnected circumstances involving her employment, visa status, health, accommodation, finances and ability to remain in Australia. In particular, the Applicant provided the following account of events: • in August 2025 the Applicant was diagnosed with pulmonary tuberculosis following immigration medical screening; • between 21 August 2025 and February 2026 the Applicant underwent anti- tuberculosis treatment during which she experienced side effects including fatigue, insomnia, irritability, acne and psychological stress; 6 Coles Supply Chain Pty Ltd v Milford (2020) 297 FCR 591. -- 3 of 9 -- [2026] FWC 2872 4 • on 20 April 2026, two days after her final day of employment, she received a visa refusal letter and had to urgently deal with the migration position on the understanding that she had limited time to either seek review of the visa refusal or make arrangements to leave Australia; • on 16 May 2026 the Applicant filed an application in the Administrative Review Tribunal (ART); • after her employment ended and the visa was refused, the Applicant had to give notice to vacate her property in Port Macquarie, arrange the removal of furniture, pack and move her belongings, and relocate to Brisbane. • although the Applicant’s medical treatment had ended by the time her employment ended, she was still affected by the physical, emotional and psychological consequences of the illness, treatment, employment stress and visa uncertainty. [10] The Applicant also submitted the employment circumstances themselves also contributed to the delay because her resignation followed a series of events including alleged underpayment, inconsistency between her contract and payslip classification, lack of proper response to her workplace concerns, lack of meaningful accommodation of medical recommendations for reduced hours, exclusion from training, pressure from the employer- sponsored visa process, and human resources communication suggesting that the store may close. The Applicant submitted that after her resignation, the employer appeared to step back from or deny the suggestion that the store was closing which made the situation more confusing and distressing. [11] The Applicant said she was trying to understand whether her resignation could be treated as forced resignation or constructive dismissal while also dealing with the urgent visa refusal and relocation. [12] The Applicant said she could not afford a lawyer and had to try to understand complex employment and migration issues by herself. [13] The Applicant submitted the delay occurred because she was simultaneously managing loss of employment, visa refusal, ART preparation, housing relocation, financial hardship, health recovery and self-representation and that these circumstances, considered together, were out of the ordinary, unusual and exceptional. [14] While the Applicant was diagnosed with an illness in August 2025 and underwent medical treatment between 21 August 2025 and February 2026, the evidence does not establish that the Applicant’s medical condition was such that it prevented or seriously impeded the possibility of timely lodgement of the Form F8 application. While the Applicant made an application to the ART on 16 May 2026, 28 days after the cessation of her employment I am not persuaded that this prevented or seriously impeded the possibility of timely lodgement of the Form F8 application. I accept that the Applicant is a self-represented person who found the circumstances of her resignation difficult and who was required to navigate a number of life events concurrently including dealing with the refusal of her visa and relocation, however, the -- 4 of 9 -- [2026] FWC 2872 5 Commission is very accessible to the general public and lawyers are not needed in order to complete the short, simple Form F8 application. In my assessment, the reasons for delay weigh against a conclusion that there are exceptional circumstances in this case. Action 366(2)(b) – any action taken by the Applicant to dispute the dismissal [15] The Applicant submitted that before her resignation, she had already raised concerns about her employment, including concerns about pay, classification, the contract, an Individual Flexibility Agreement, working conditions, lack of support during illness, training, and the employer-sponsored visa pathway. [16] The Applicant said she did not accept her resignation was truly voluntary and her resignation email stated that, following the withdrawal or non-continuation of the Subclass 482 sponsorship nomination and the upcoming closure of the store, she was left with ‘no practical option but to resign’. The Applicant submitted this wording disputed the voluntary nature of the resignation at the time it was given. [17] The Applicant said after her employment ended on 18 April 2026, she received the visa refusal letter on 20 April 2026 and had to focus immediately on understanding and responding to the visa refusal and preserving her lawful options in Australia. The Applicant said she gathered documents relevant to the employment and visa circumstances, including her contract, Individual Flexibility Agreement, payslips, rosters, medical records, training information, human resources communications, resignation email, sponsorship-related documents, section 57 Natural Justice correspondence and visa refusal letter. [18] The Applicant said she had to move from Port Macquarie to Brisbane and during this period she was attempting to understand her rights without legal representation because she could not afford a lawyer. The Applicant said she filed her ART application on 16 May 2026 and although that was a migration step rather than an application to the Commission, it was directly connected to the employment circumstances because the visa refusal arose in the context of the employer-sponsored pathway no longer being supported. [19] The Applicant submitted that she took action to dispute the substance of the dismissal and the circumstances leading to it, even though she did not immediately lodge the Form F8 application within the 21-day period. [20] While the Applicant may have raised concerns about her employment prior to her submitting her resignation on 11 April 2026, this does not amount to action to dispute the alleged dismissal. In fact, when the Applicant submitted her resignation on 11 April 2026 she did not expressly allege dismissal but rather stated: ‘I am writing to formally resign from my position as Retail Shop Manager at MINIT Australia Pty Ltd. Following the withdrawal of my Subclass 482 visa sponsorship nomination and the upcoming closure of the Port Central store, I find myself in a very difficult and uncertain position. These circumstances have left me with no practical option but to resign from my role. -- 5 of 9 -- [2026] FWC 2872 6 This situation has been extremely stressful and challenging for me, particularly as it has impacted my ability to remain in Australia and continue my employment. The short notice and sudden changes have created significant personal and financial pressure, and I now need to make urgent arrangements to vacate my residence in Port Macquarie, relocate to Brisbane, and prepare to leave Australia in a very short timeframe. Please consider this email as my official one-week notice in accordance with my employment contract. My last working day will be Saturday, 18 April 2026. As outlined in my previous email, the relocation and associated expenses represent a significant financial burden for me. I would sincerely appreciate your consideration of the support the company may be able to provide towards these costs during this transition.’ [21] While the Applicant was dealing with her relocation and refusal of her visa, it is apparent that contesting her alleged dismissal was not her immediate priority and I find that the Applicant did not taken any action to dispute the dismissal until she made her application to the Commission on 15 June 2026, by which time it was 35 days late. This weighs against a finding of exceptional circumstances. Section 366(2)(c) – prejudice to the Respondent (including prejudice caused by the delay) [22] The Applicant said she did not believe the Respondent would suffer any significant prejudice as the relevant events are recent. The Applicant noted her employment ended on 18 April 2026 and submitted the Respondent should still have access to the relevant employment and human resources records, The Applicant submitted that the Respondent will have the opportunity to respond to the application and participate in the Commission process and the delay has not prevented the Respondent from understanding or responding to the allegations. The Applicant submitted the issues are not old or unclear and concern events from 2025 and early 2026, including the contract and Individual Flexibility Arrangement signed in June 2025, the visa application lodged on 30 June 2025, the tuberculosis treatment period from August 2025 to February 2026, human resources communications in January 2026, the 482 visa nomination withdrawal, the resignation on 11 April 2026 and the final day on 18 April 2026. The Applicant submitted that any prejudice caused by the delay is minimal as the employer retains the documents and records needed to respond, and the matter can still be fairly dealt with. I consider that the prejudice caused to the Respondent by the delay is minimal and this is a neutral factor in the circumstances of this matter. Section 366(2)(d) – the merits of the application [23] The Applicant submitted that her application has merit because her resignation was not voluntary and should be treated as constructive dismissal in circumstances where the Respondent’s conduct cumulatively left her with no real or practical choice but to resign. The Applicant said: she attended an in-person interview at the employer’s Sydney head office in February 2025 and accepted a Retail Manager role with the Respondent in reliance on the employer-sponsored visa pathway. The Applicant said she commenced training in March 2025, relocated to Port Macquarie in or around June 2025, and signed employment documents and an Individual Flexibility Agreement. The Applicant said a subclass 482 visa application was -- 6 of 9 -- [2026] FWC 2872 7 lodged on 30 June 2025 on the basis that she had been nominated by the Respondent for the position of Retail Manager (General), ANZSCO 142111. [24] The Applicant said there appeared to be serious issues regarding pay, classification and the Individual Flexibility Agreement. In particular the Applicant said her employment contract made reference to the General Retail Industry Award 2020, Retail Employee Level 8, Shop Manager, and remuneration of $76,600 plus superannuation however, her payslips referred to “Level 3 P1” and her hourly rates were inconsistent with her understanding of the sponsored Retail Manager role and agreed salary. The Applicant said she raised concerns about pay and employment conditions and that these were workplace complaints or enquiries and therefore workplace rights. [25] The Applicant said she was was diagnosed with pulmonary tuberculosis in August 2025 following immigration medical screening and underwent treatment from 21 August 2025 to February 2026. The Applicant said she experienced medication side effects including fatigue, insomnia, irritability, acne and psychological stress. The Applicant said after her initial isolation period, she returned to work and her treating doctor recommended reduced work hours due to her medication load and health condition. The Applicant said she provided this recommendation to the employer, but the requested reduction was not meaningfully accommodated. The Applicant said she continued working because her migration status was precarious and she believed maintaining the employment relationship was necessary to preserve the employer- sponsored pathway. The Applicant said the Respondent did not provide adequate practical support during her illness and treatment and she was expected on some occasions to manage the store duties during busy and peak trading periods while undergoing treatment and attempting to complete training requirements. [26] The Applicant submitted she was treated detrimentally in relation to training and was placed in the field within a few weeks of commencing training and required to perform practical duties before training had fully concluded. The Applicant said that in or around November 2025, other shop managers and team members were invited to an in-person training program in Sydney, while she was excluded and rostered to work the whole day managing store duties at short notice. [27] The Applicant said that on or around 14 January 2026, she received a phone call from human resources indicating that the Respondent would not continue with her 482 visa process. The Applicant said she had sought clarification because there had been no prior formal written communication clearly explaining this position, but she continued to work and attempted to preserve the employer-sponsored pathway. The Applicant said the employer’s later communication indicated that it did not intend to continue supporting the visa process or maintaining the nomination pathway. [28] The Applicant said human resources later communicated that the store she was working at may be closing. The Applicant said she understood this, combined with the withdrawal or non-continuation of sponsorship, was leaving her with no practical option but to resign. The Applicant said after she resigned, the Respondent appeared to deny or step back from the suggestion that there was any plan to close the store. -- 7 of 9 -- [2026] FWC 2872 8 [29] The Applicant submitted that her application has merit because her resignation was not voluntary and should be treated as constructive dismissal in circumstances where the Respondent’s conduct cumulatively left her with no real or practical choice but to resign. The Applicant submitted the Respondent took adverse action against her, including altering her position to her detriment, failing to properly address workplace complaints, failing to accommodate health-related recommendations, excluding her from training, withdrawing or failing to support the sponsorship pathway, and constructively dismissing her because she exercised workplace rights and because of circumstances connected to her illness and visa vulnerability. The Applicant submitted that her application is not weak, speculative or without substance and that there are serious factual and legal issues that should be allowed to proceed to conciliation and, if unresolved, to the appropriate next stage. [30] I consider that the Applicant has an arguable case, however a more detailed assessment is not possible given the limited information before me. The merits of the matter would also depend on findings made by a court after hearing the evidence. I regard the merits as a neutral consideration. Section 366(2)(e) – fairness as between the person and other persons in a like position. [31] The Applicant submitted that allowing her application to proceed would be fair to other persons in a similar position because: • this is not an ordinary late application caused only by inattention or lack of awareness; • her circumstances involved a combination of unusual factors and person in a similar position could reasonably struggle to immediately identify and lodge the correct application while also dealing with urgent visa refusal consequences, housing relocation, financial insecurity, health impacts and lack of legal representation; • it would allow serious allegations of constructive dismissal and adverse action to be considered through the proper process. [32] The Applicant submitted she did not believe there are other employees of the same employer in the same position who lodged similar applications in time and who would be unfairly disadvantaged if her application were allowed to proceed. [33] I do not consider that there are any matters that are relevant to fairness between the Applicant and other persons in a like position (s 366(2)(e)) and I consider this to be a neutral factor. -- 8 of 9 -- [2026] FWC 2872 9 Conclusion [34] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s 366(2), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is dismissed. COMMISSIONER Determined on the papers. Printed by authority of the Commonwealth Government Printer <PR812645> -- 9 of 9 --