Anand v Australian Computer Society Incorporated [2026] FedCFamC2G 534

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. On 14 November 2025, the applicant filed an originating application in this Court under the Fair Work Act 2009 (Cth) (FW Act), alleging contraventions of the general protections provisions in Part 3‑1 of the Act. The application was lodged four days after the expiry of the 14‑day statutory period following the issue of a certificate under s 368(3)(a) by the Fair Work Commission (FWC) on 27 October 2025.
2. As the certificate was issued on 27 October 2025, the permissible time period under s 370(a)(ii) expired on 10 November 2025. The applicant's originating application can only proceed if the Court extends the time under s 370(a)(ii). The respondent opposes the extension.
3. The application for an extension of time was heard on 16 March 2026. The applicant was self-represented. The respondent was represented by Mr S Burke from Sparke Helmore Lawyers. On the application, the applicant relied on her affidavit affirmed 28 January 2026 ("the first affidavit"), and a further affidavit affirmed 27 February 2026 ("the supplementary affidavit"). The respondent relied on the affidavit of Ms Zarah Bedolach affirmed 12 February 2026 ("the Bedolach affidavit"). At the hearing the applicant was cross-examined by Mr Burke.

1. The applicant commenced employment as a Product Manager with the respondent on 21 February 2022. She proceeded on parental leave from 19 February 2024, following the birth of her twin daughters, with an approved extension of leave through to 15 August 2024.
2. Prior to parental leave, the applicant managed three product portfolios: Migration, Career, and Capability. During her absence, those portfolios were reassigned to two newly employed Product Managers. Upon her return, she was allocated to a newly created Events portfolio, which she contends represented a significant reduction in scope and responsibility. The respondent disputes this, arguing that the applicant's role did not have fixed portfolios and that reassignment was contractually permissible.
3. Between August 2024 and June 2025, the applicant says she raised repeated verbal and written concerns regarding the reduction in her responsibilities, exclusion from strategic planning, and the lack of redeployment opportunities. She relies particularly on the June 2025 "End of Year Outcome" feedback document, which she characterises as a workplace complaint. The respondent disputes that the feedback constitutes a "complaint" under s 341(1)(c).
4. In May 2025 the respondent commenced a broad organisational restructure. Between 28 July and 4 August 2025, the respondent says it consulted with the applicant about the proposed redundancy of her role. On 30 July 2025, the applicant's system access was removed. On 5 August 2025, her employment was terminated by letter. The applicant contests the genuineness of the redundancy consultation.
5. The applicant lodged an application under s 365 of the FW Act on 19 August 2025. The Fair Work Commission (FWC) held conciliation on 9 October 2025, which was unsuccessful. On 23 October 2025, the conciliator notified the parties that the matter would be referred to a Commissioner and that a certificate would issue if the Commissioner was satisfied the dispute could not be resolved. That correspondence was sent to the applicant at her nominated email address, and to Sparke Helmore on behalf of the respondent.
6. On 27 October 2025 at 2:32pm, Commissioner Ryan issued a certificate under s 368(3)(a) of the FW Act (the certificate email). The certificate email was transmitted from Commissioner Ryan's chambers address. The subject line read: 'FWC Memo - C2025/8215 - Anand v Australian Computer Society Incorporated CRM:00000463244'. Prior FWC correspondence had arrived through the FWC's case management system under a different sender address and subject line format. The certificate arrived as an automated email from Commissioner Ryan's chambers - a materially different form of communication from what had preceded it.
7. As outlined above, the 14-day period prescribed by s 370(a) expired on 10 November 2025.
8. The applicant deposes that she did not see the certificate email at the time it was issued. On 11 November 2025 at approximately 2:15am, one day after the filing period expired, the applicant says she located the certificate email in her email account. She immediately emailed Commissioner Ryan's chambers at 2:17am in terms recorded in Annexure SA-2 to the supplementary affidavit: "Urgent help needed. I didn't receive this email correspondence in time and happen to see it just now. Can I please file my claim today itself." That email was sent as part of a thread that included the respondent and its representatives, placing them on notice from 11 November 2025 that the applicant intended to commence proceedings in this Court.
9. Later on 11 November 2025 at 6:01pm, the applicant emailed the Federal Court's eLodgment registry to advise of her intention to file and to notify that her registration was pending activation, which she understood could take up to one business day: Annexure SA-3. The registry confirmed by return email on 12 November 2025 at 7:23pm that her registration had been processed.
10. The next day, on 13 November 2025, the applicant's first lodgement attempt was rejected. The registry's automated rejection notice (Annexure SA-4) advised that she was required to file an originating application in the Fair Work Division alongside the Form 2 as separate documents. She complied and resubmitted her application.
11. On 14 November 2025 at 4:09pm, the resubmitted application was marked 'pending' (Annexure SA-5). The registry advised that she was required to include, under the interlocutory orders sub-heading in the originating application, an order seeking an extension of time, as the application had been submitted past the 14-day deadline. She complied and filed her originating application and Form 2 on 14 November 2025. The application was accepted on 17 November 2025.

A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:

(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days...

1. The discretion under s 370(a)(ii) is broad but must be exercised judicially. The onus rests on the applicant to satisfy the Court that time should be extended: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547 per Toohey and Gummow JJ.
2. The principles applicable to an application for an extension of time are well known and have been identified by the respondent in its submissions. They were summarised by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [299]-[300] (Brodie-Hanns) as follows:

(a) Special circumstances are not necessary, but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

(b) Action taken by the applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

(c) Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

(d) The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

(e) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

(f) Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.

1. These matters are not exhaustive and are not a checklist. No single factor is determinative. They inform the overall evaluative judgment the Court must make. This was confirmed recently in Wilson v Victorian Aboriginal Child and Community Agency [2025] FCA 559 (Wilson) by Bennett J.
2. The respondent relies additionally on Chou v Digital61 Pty Ltd [2021] FCA 640 (Chou), where Abraham J declined to accept unsubstantiated claims of technical filing difficulty in the absence of objective evidence, and Grech v Truck Tech [2023] FedCFamC2G 184 (Grech), where Forbes J held that it would be futile to grant an extension where a claim has no ostensible merit.

1. The applicant says she did not see the certificate email until 11 November 2025 at approximately 2:15am. The email had been transmitted from a different sender address and in a different format from prior FWC communications, making her explanation plausible. She emailed the FWC within two minutes of discovering it, giving immediate notice that she wished to file her court application.
2. Later that day, the applicant registered for the Court's eLodgment system and notified the registry of her intention to file. Registration was confirmed on 12 November 2025. Her first filing attempt on 13 November was rejected because she had not filed the originating application separately from the Form 2, as required. She corrected the issue and lodged again. On 14 November, the Court marked the application "pending" because it did not include an interlocutory order seeking an extension of time. She amended the document that same day and successfully filed.
3. This sequence of events is corroborated by contemporaneous documents. The applicant took continuous steps between 11 and 14 November to file her application. The delay in that period is accounted for and largely attributable to procedural requirements of the Court rather than any lack of diligence.
4. The earlier failure to notice the certificate email (before 11 November 2025) is less satisfactory but not implausible. The applicant was caring for infant twins, seeking employment and commencing new work. She knew of the 14‑day requirement and did not wilfully disregard it. Once she discovered the certificate, she acted immediately (within 2 minutes) as outlined above. The applicant's evidence in cross-examination as to her explanation for the delay was consistent with the evidence she gave in both of her affidavits.
5. I find the applicant has given an acceptable explanation or reason for the delay. I am positively satisfied the 14-day prescribed period should be extended. I weigh this factor in the applicant's favour.

1. The applicant promptly lodged her FWC application, engaged in conciliation and remained active in communications. Her conduct immediately after discovering the certificate - emailing the FWC, registering for eLodgment and addressing sequential technical filing requirements - demonstrates continuous efforts to contest her dismissal. This weighs strongly in her favour.

1. The respondent submits it assumed finality upon expiry of the 14-day period on 10 November 2025, having received no communication from the applicant during that time. That submission must be assessed against the fact that the applicant's 2:17 am email of 11 November 2025 was sent in a thread that included the respondent and its representatives. The respondent was therefore on actual notice of the applicant's intention to file from 11 November 2025. Any assumption of finality was in reality short-lived. No other specific prejudice is identified. There is no loss of evidence, no change in witness availability, and no detrimental reliance. A four‑day delay has not impaired the respondent's ability to defend the claim. This factor is neutral.

1. The respondent mounts its most substantial arguments in relation to the merits of the claims being made by the applicant, as best they can be discerned from her statement of claim. The test is whether or not the claims are utterly hopeless or without any merit. I address each claim in turn.
2. The first is an adverse action claim for exercising workplace rights (ss 340-342 of the Act). It is alleged that between August 2024 and June 2025 the applicant made repeated verbal and written complaints regarding the reduction in scope of her position, lack of redeployment and exclusion from strategic planning, and that within weeks of lodging her written complaint on 24 June 2025 (Annexure A14), the respondent proposed her redundancy. The respondent submits the redundancy was genuine and that Annexure A14 to the statement of claim, the 24 June 2025 written feedback document, does not constitute a "complaint" within the meaning of s 341(1)(c) of the Act, and that in any event the restructure commenced in May 2025, prior to that document, negated any causal connection. On the respondent's characterisation A14 is a routine performance cycle document not a "complaint".
3. It cannot be said this claim is hopeless. Whether annexure A14, on a fair reading, amounts to a "complaint" within the meaning of s 341(1)(c) of the Act is at least contestable (e.g. it is arguable in the sense discussed by the authorities above, such as Wilson) at this stage of the proceedings. The first affidavit asserts that she exercised workplace rights including rights associated with parental leave and return-to-work arrangements, and the statement of claim pleads repeated verbal and written complaints between August 2024 and June 2025. Whether those oral and written communications, read individually or collectively in context, were in fact made, or constitute the exercise of a workplace right within s 341(1)(c) is a genuine question of mixed fact and law. These are all contested issues, and it is not appropriate for me to determine them on an application of this kind. Further, if this claim were to proceed, it would do so on the basis of the reverse onus under s 361 of the FW Act, making the claim contestable (as to "reverse onus" under s 361, see: Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306 [94], [148]). This claim is not utterly hopeless or without any merit in my view.
4. The second is an adverse action claim for failure to reinstate to the position or a comparable position after she took parental leave (s 84, and s 351 in Part 3-1). It appears to be an adverse action relating to pregnancy and family responsibilities. The respondent submits that the applicant returned from leave to the role of Product Manager on the same salary and terms in her written contract of employment and was employed in that capacity for approximately one year before redundancy. Whether that factual matrix establishes such a claim again involves genuine questions of fact and law that cannot be resolved on this application. These are matters of fact and weight to be determined at the final hearing, not in this application. As with the first claim, if this claim were also to proceed, it would also do so on the basis of the reverse onus under s 361 of the FW Act, which also makes this claim contestable. For these reasons this claim is not utterly hopeless or without any merit.
5. The applicant's case as presently articulated in Form 2 may be far from a properly particularised claim. However, I am conscious the applicant is a self-represented litigant and did not have the benefit of legal assistance when drafting it. I am also conscious that it is early in the proceeding, and the material has not been fully presented in a way that it would be at a final hearing. This is not a case of the kind considered in Chou or Grech, where the claims were completely unparticularised or disclosed no discernible contravention. Even though all cases are very different, this case is closer to the situation considered by Bennett J in Wilson where time was extended. Taken as a whole, I consider the merits of the applicant's claims are genuinely contestable. This factor weighs in the applicant's favour.

1. The applicant acted promptly once aware of the certificate, was unrepresented, and faced unfamiliar procedural issues when she attempted to commence proceedings in this Court. The delay was short. Refusing an extension would permanently extinguish claims that are at least arguable, and not hopeless. Fairness considerations slightly favour the applicant in my view.

1. Having regard to all the relevant factors, the short delay, the applicant's prompt and continuous efforts after discovering the certificate, the lack of actual prejudice to the respondent, the arguable merits of the claim and overall fairness, I am positively satisfied that the time for filing should be extended.
2. Accordingly, I will make an order extending the time to commence proceedings in the Court until the date of filing.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.