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[2026] FWC 416
General information, not legal advice.
Fair Work Commission
2026-02-13
Original judgment source is linked above.
"Communication" includes emails, text messages, conversations via telephone or conversations in person.
If the Applicant advised Barr of the date of dismissal verbally, she may provide a statement to that effect. The Deputy President will then review the communications and advise the Respondent of the date of dismissal which the Applicant advised Barr. The Respondent can cross examine the Applicant about this in the hearing.
Reasons for declining the Respondent's Form F52 request for production.
Firstly, there is the issue of legal professional privilege. The Applicant has expressly waived privilege over one document, the email of 28 November 2025. The Deputy President understands the Respondents' argument to be that as the emails seem to be part of a chain, privilege has been waived over the chain of emails.
The Deputy President considers it is likely that the Applicant has waived privilege over parts of the communication with Mr Barr either through express or implied waiver. This would mean that privilege has been lost for certain communications, such as the date of dismissal which the Applicant communicated with the solicitor. Implied waiver occurs where the person receiving legal advice acts inconsistently with the maintenance of the confidentiality the privilege is intended to protect (Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29]). This can occur even when the person who sought legal advice subjectively intends to maintain privilege. The courts consider fairness when deciding whether privilege has been impliedly waived. In this case, the Applicant has explicitly relied upon the legal advice she received regarding the timeframe for lodgement as a reason for the delay. The Applicant has also provided an email from Mr Barr in which he stated the due date for lodgement was 2 December 2025. The Applicant has stated that the purpose of providing the document is for the "limited purpose" of disclosing to the Commission the reasons for the delay. However, the Applicant is relying on the legal advice as a legal basis for an extension of time. It is different to other cases of limited purpose disclosure where the advice is disclosed for some purpose other than to put forward a legal basis for a claim. In the Deputy President's view, the Applicant has acted inconsistently with the maintenance of privilege and has therefore waived privilege.
Secondly, though in the Deputy President's view, the Applicant has waived privilege, this does not automatically mean the documents sought by the Respondents should be ordered for production. The fact that the documents can be produced does not mean the Commission should order the documents. Section 590(2) grants the Deputy President discretion to order documents. In the Deputy President's view, the scope of the documents sought is too wide such it goes beyond what is apparently relevant for the purposes of an extension of time hearing. Additionally, it would cause prejudice to the Applicant if she were required to reveal all her communications with a solicitor to the other side. That may include communications which are not relevant to the Applicant's general protections matter. Further, in the Deputy President's view, it is not necessary for the Applicant to provide evidence that Mr Barr was retained to lodge the Form F8 as an extension of time based on allegedly incorrect legal advice is not limited to where a legal advisor is retained to file the application. Quite commonly an Applicant who is asserting that they received incorrect legal advice regarding the date of lodgement is no longer represented by the person who gave the advice when they file an application in the Commission, for obvious reasons.
[14] The Applicant complied with the order to produce. The documents which the Applicant provided confidentially to the Commission indicated that the Applicant informed Mr Barr twice over the phone and by email that her employment had been terminated on 10 November 2025. The Applicant also provided the termination letter to Mr Barr. That letter states:
Accordingly, your employment with George & Matilda Eyecare will end effective today (10th November 2025), and the business will provide one week's pay in lieu of notice in line with your probationary entitlements.
Should an extension of time be granted under s.366(2) of the Act?
[15] Section 366 of the Act provides when a further period may be granted to accept a late 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:
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(e) fairness as between the person and other persons in a like position.
[16] There must be exceptional circumstances in order to be granted a further period to lodge this application. In summary, exceptional circumstances are:
Section 366(2)(a) - Reason for delay
[17] The reasons for the delay relied on by the Applicant are:
[18] The Applicant relies on incorrect legal advice as a reason for the delay of one day. I am satisfied that the advice the Applicant received regarding the due date for filing the application was incorrect. The effective date of dismissal was 10 November 2025 which meant the last day to file the application, or the "due date", was 1 December 2025. I note Mr Barr was not called to give evidence and I do not want to speculate on the reasons for the error. It was, however, not caused by incorrect instructions from the Applicant.
[19] The Respondents argued that the Applicant could not rely on the incorrect advice she received as representative error. The Respondents argue that if Industry Legal was not acting for the Applicant, then they are not her representative and she cannot rely on representative error as a reason for the delay. The Respondents also note that the Applicant spoke to the Commission after she was dismissed. The Respondents surmise that the Commission would have advised the Applicant of the 21-day time limit to lodge a dismissal-related claim.
[20] I have some difficulty with the Respondents' suggestion that the Applicant cannot rely on representative error unless the Applicant retained Mr Barr to act for her. The email of 28 November 2025 from Mr Barr clearly indicates that Mr Barr is providing the Applicant with advice for how to lodge a general protections application in the Applicant's capacity as a member of Optometry Australia. The fact that the retainer may have been with Optometry Australia, rather than the Applicant does not, in my view, change the substance of the advice given. The Applicant was provided with advice regarding a prospective general protections claim and as part of that advice, she was specifically told that the "deadline for filing is Tuesday 2 December 2025". I reject the Respondents' argument that the Applicant cannot rely on the advice because Mr Barr was not formally retained.
[21] I asked the Respondents' representative during the hearing whether it would be considered exceptional for a lawyer to provide incorrect advice regarding the expiry of a limitation period. The Respondents' representative argued that lawyers usually provide correct advice but that the thousands of cases in the Commission where incorrect advice is relied upon as a relay for delay evidences that it is not exceptional for incorrect advice to be provided.
[22] Member of the Commission have found that there may be exceptional circumstances where an applicant is given incorrect legal advice. There is an inherent reasonableness assessment. It must be reasonable for the applicant to rely on the advice of that person. For example, it may not be reasonable for the applicant to rely on advice from a lawyer who the applicant knows has no experience in employment law.
[23] The Full Bench in Officeworks Ltd v David Parker [2014] FWCFB 5779 held:
[15] The approach which has been adopted by the Commission in relation to representative error applies principles which have been applied in the courts in relation to delays or negligence by solicitors in making applications or instituting proceedings within time limits.
[16] In the circumstances of the present matter we consider that, in deciding whether or not representative error will constitute an acceptable explanation for delay in the lodgement of the application, consideration should be given to a variety of factors including the extent to which the applicant's own conduct contributed to the delay and the nature of the representation concerned.
[17] Under the Act, there is no general limitation as to whom a party might be represented by in proceedings before the Commission. However a person may only be represented by a lawyer or paid agent in a matter before the Commission, including by making an application or submission on behalf of the person, with the permission of the Commission. In general, the legislative policy is that persons will act on their own behalf in making applications and submissions to the Commission. In so doing, the person may seek the advice or support of other persons. As the Senior Deputy President observed in relation to unfair dismissal matters in her reasons for decision:
"[11] Applicants are regularly represented before the Commission by a variety of persons who are not legally qualified or even experienced in industrial law. Solicitors do not have a right to appear in the Commission. Permission to appear must be specifically granted.
[12] Support persons who assist applicants to lodge their applications and appear before the Commission may be family members, friends and even sometimes social workers or Church support persons."
[18] In circumstances where "representative error" is relied upon in Commission proceedings as an excuse or explanation for the failure to meet time limits, it is appropriate to have regard to the professional qualifications and expertise of the representative concerned. This will enable an assessment to be made as to the extent to which it was reasonable for a party to rely upon the skills and expertise of the representative in acting on their behalf. Clearly where the representative is a lawyer, an experienced industrial advocate, or an officer or employee of an organisation of employers or employees, it might more readily be concluded that representative error provides an acceptable explanation for the delay and such error should not be blamed upon the party concerned. However where the representative chosen has no experience or expertise in the area of legal and employment matters, there might be less justification for reliance on that person and the responsibility for delays or other errors might be attributed to the party concerned.
[19] In general, representative error may be more readily accepted as an explanation or excuse where the person relied upon has professional qualifications or expertise in dealing with legal and employment matters than where reliance is placed on a family member or friend.
[24] In Webber v Stanwell Corporation Ltd [2025] FWC 2670, the applicant received advice from an employment law firm which was incorrect. That advice was for the applicant to lodge an application with the Queensland Industrial Relations Commission, rather than the Fair Work Commission. Commissioner Durham held:
[30] This was not a situation where Ms Webber had advice in the final days of the 21-day period. I am satisfied that Ms Webber acted promptly, seeking legal advice on 5 June 2025, just 2 days after her dismissal. Even if Ms Webber had, as submitted by Stanwell, held the view that her application should have been filed in the Commission, it is understandable that, in the face of contrary advice from Prosper Law, she has relied on their expertise. Given the circumstances of this matter, she could not reasonably have been expected to have disputed their advice. I therefore find that she was without fault in the late filing.
[25] In Lamont v North Coast Cabinets Pty Ltd [2025] FWC 2765, the applicant received advice over the phone from a solicitor who the applicant had been told had expertise in employment law. That solicitor advised the applicant that she had 28 days to file an application. Deputy President Grayson found the applicant in that matter had a "plausible explanation" for the entirety of the delay because of her reliance on the lawyer's advice.
[26] I accept the Respondents' submission that the limitation period can be calculated easily. I also accept that the Applicant contacted the Commission soon after her dismissal and knew about the 21-day limitation period. However, in my view, if the Applicant specifically sought advice from a solicitor with experience in employment law regarding making a general protections claim, and the solicitor advised her of the last date for the application to be filed, it is reasonable for the applicant to rely on that advice. The Applicant acted promptly in seeking advice. I find that the incorrect advice the Applicant received is an acceptable explanation for the period of the delay of one day.
[27] The Applicant's medical evidence, in summary, includes:
[28] If the Applicant had only provided the above evidence, without evidence of the advice she received regarding the due date for filing, then I would not be satisfied that exceptional circumstances exist.
[29] I accept that the Applicant had a recurrent cough both in the period before and after her dismissal took effect. I accept that the Applicant presented to the emergency department on 12 November 2025. This was towards the beginning of the 21-day period following dismissal. However, the medical evidence does not demonstrate to me that the Applicant's chest condition prevented her from completing the application within time. The Applicant was able to seek legal advice within the same period.
[30] Further, the evidence provided by the Applicant's clinical psychologist does not, in my view, demonstrate exceptional circumstances either. The Applicant's psychologist refers to psychological distress as a result of family and domestic violence which required the Applicant to seek support from external services. Without further elaboration on the level of psychological distress and its symptoms, it would be difficult for me to conclude that the Applicant was not able to complete her application within time. Some of the clinical psychologist's comments also go beyond medical opinion and refer to the Applicant taking "reasonable steps to address workplace responsibilities including consulting Human Resources, professional body and union, as well as seeking legal advice about these matters."
[31] I find that applicant's evidence of her medical condition and personal circumstances do not provide an acceptable reason for delay. However, the incorrect advice the Applicant received about the due date for filing the application does provide an acceptable reason for the delay. This weighs in favour of a finding of exceptional circumstances.
Section 366(2)(b) - Any action taken by the person to dispute the dismissal
[32] The Applicant stated that she sought advice regarding her rights soon after her dismissal. I accept this but I have seen no evidence that the Respondents were on notice that the Applicant actively disputed the dismissal, prior to the lodgment of this application. This does not weigh in favour of a finding of exceptional circumstances.
Section 366(2)(c) - Prejudice to the employer (including prejudice caused by the delay)
[33] The Respondents did not submit that there would be prejudice to the employer.
[34] I consider that this is a neutral factor.
[35] It is not appropriate to embark on a detailed exploration of the merits of the matter when considering whether to grant an extension of time.
"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."
[37] In short, the Applicant alleges she was dismissed as a result of exercising rights to take sick leave and leave for family and domestic violence, and for making complaints about her workload and alleged lack of support. The Respondents submit that the Applicant was dismissed because of concerns regarding "clinical independence, time management, and adherence to practice protocols".
[38] I find the claim is not devoid of merit. This factor is neutral.
Section 366(2)(e) - Fairness as between the person and other persons in a like position.
[40] I find this to be a neutral factor in this application.
[41] Having regard to all the matters set out above, particularly the reason for the delay, I am satisfied that exceptional circumstances exist in this matter.
[42] I exercise my discretion to extend the period for filing the application to 2 December 2025. I Order accordingly. My Chambers will issue a notice of listing for a conciliation under s.368 of the Act.
[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].
[2] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[3] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963
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Andrea Wan
National Optical Care Pty Ltd, Nathan Gallagher, Anthony Sargeant [2026] FWC 416
(1999) 201 CLR 1