Bertoli v Stramig Pty Ltd [2025] FedCFamC2G 407

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The applicant, Ms Bertoli, applies for an order under s 370(a)(ii) of the Fair Work Act 2009 (Cth) (FW Act) permitting her to make a "general protections court application" (GPC application) to this Court on 10 January 2025, being a date after the day by which Ms Bertoli was required to have made that application.
2. The expression "general protections court application" is defined in s 368(4) of the FW Act to mean an application to a court under Division 2 of Part 4-1 of the FW Act for orders in relation to a contravention of Part 3-1 of the FW Act. An employee cannot make a GPC application in relation to a dismissal unless the employee first applies to the Fair Work Commission (FWC) under s 365 of the FW Act to deal with the dispute, and the FWC issues a certificate under s 368(3)(a) of the FW Act certifying it is satisfied that all reasonable attempts to resolve the dispute, other than by arbitration, have been, or are likely to be, unsuccessful. Additionally, under s 370(a)(ii) of the FW Act, an employee cannot make a GPC application in relation to a dismissal unless it is made within 14 days after the FWC issues a certificate under s 368(3)(a), or within such period as the Court allows on an application made during or after those 14 days.
3. On 18 November 2024 Ms Bertoli applied to the FWC under s 365 of the FW Act for the FWC to deal with a dispute that arose out of the first respondent (SPL), on 28 October 2024, terminating her employment. The FWC issued a certificate (Certificate) under s 368(3)(a) of the FW Act on 20 December 2024, and provided a copy of the Certificate to Ms Bertoli's lawyer by email sent at 11.11 am on the same day. That meant that Ms Bertoli was required to make a GPC application to this Court in relation to her dismissal 14 days after the date on which the FWC issued the Certificate.

PRELIMINARY QUESTION - WHEN DID THE 14 DAY PERIOD EXPIRE?

1. Ms Bertoli submits that the 14 day period provided for by s 370(a)(ii) of the FW Act is to be calculated having regard to r 3.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), which provides:

(1) This rule applies to a period of time fixed by these Rules or by a judgment, decree, order or any document in a proceeding.

(2) If a period of more than 1 day is to be calculated by reference to a particular day or event, the particular day or the day of the event must not be counted.

(3) If a period of 5 days or less would, but for this subrule, include a day when the registry is closed, that day must not be counted.

(4) If the last day for taking an action that requires attendance at a registry is a day when the registry is closed, the action may be taken on the next day when the registry is open.

(5) Subsection 36(2) of the Acts Interpretation Act 1901 does not apply to these Rules.

1. Counsel for the respondents submits that r 3.04 of the GFL Rules does not apply to the calculation of the time provided for by s 370(a)(ii) of the FW Act because it is not a time fixed by a "judgment, decree, order or any document in a proceeding", as provided for by r 3.04(1). Counsel for Ms Bertoli, on the other hand, points to the Certificate's stating that the "person dismissed . . . has 14 days after the date of this certificate is issued within which to make a general protections court application to the Federal Court of Australia" or this Court; and submits that the 14 day period was fixed by the Certificate and, for that reason, by a "document in a proceeding". I do not accept Ms Bertoli's submission. The 14 day period is fixed by s 370(a)(ii) of the FW Act, not by the Certificate. The Certificate's reference to the 14 day period is a notification to the person dismissed of the time fixed by 370(a)(ii) of the FW Act by which that person must make a GPC application.
2. Ms Bertoli, therefore, was required to make a GPC application to this Court by 3 January 2025.

1. There is no issue between the parties that the principles I should apply in determining whether to extend the period to 10 January 2025 by which Ms Bertoli may make a GPC application are those Marshall J stated in Brodie-Hanns v MTV Publishing Limited when considering a provision in the Industrial Relations Act 1988 (Cth) that is similar to s 370(a)(ii) of the Act. His Honour said:[1]
   1. 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.
   2. 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.
   3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
   4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
   5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
   6. 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. The matters on which Ms Bertoli relies to explain her delay are contained in two affidavits. In her affidavit made on 21 February 2025, Ms Bertoli says the following occurred after SPL terminated her employment.

(a) Ms Bertoli instructed her current solicitors (BFH) on 29 October 2021 and, within the 21 day period provided for by s 366(1) of the FW Act, Ms Bertoli applied to the FWC pursuant to s 365 for the FWC to deal with the dispute arising from her termination.

(b) Throughout October, November, and December 2024 Ms Bertoli was suffering serious psychological distress resulting from the matters she alleges occurred during her employment, and which provides the factual basis of the general protections claims she filed on 10 January 2025.

(c) On 1 November 2024 Ms Bertoli made a workers' compensation claim. That claim has been fraught with complications, the principal one of which is the unavailability of provisional payments.

(d) From 18 November 2024 to 7 January 2025 Ms Bertoli was scarcely capable of instructing or communicating with her solicitors due to the symptoms she was experiencing.

(e) Throughout the latter half of her employment with SPL, and during this proceeding, Ms Bertoli has been living on her own in Forster without any family or external support.

(f) Due to not having funds, Ms Bertoli faced significant adversity following the failed conference before the FWC on 20 December 2024; and since that time Ms Bertoli's psychological symptoms have increased in frequency, and her mental and physical health have deteriorated significantly.

(g) From the beginning of January 2025 until the present day, Ms Bertoli's solicitors have made continual inquiries in relation to her workers compensation claim, but these have been unfruitful; and this has caused Ms Bertoli extreme stress, and has exacerbated her symptoms.

(h) As a result of the financial and psychological stress she has suffered, Ms Bertoli has not been in a position to provide her solicitors with full instructions in relation to the GPC application. That is particularly so because the process of initiating the GPC application required her to review the application in full for accuracy; and that was emotionally and psychologically stressful for her.

(i) When the time came for Ms Bertoli to review the GPC application she was unable to do so due to the severe and persistent psychological symptoms she was experiencing.

(j) A contributing factor that restrained Ms Bertoli from instructing her solicitor to file the GPC application is that she was not in funds, and could not afford the applicable filing fees. Ms Bertoli had only instructed her solicitors that she would be unable to afford the filing fee at the time she instructed them to file the GPC application. Ms Bertoli was not aware until that time that she could obtain a fee waiver.

1. In her second affidavit Ms Bertoli deposes to efforts she made to obtain medical evidence to support her application for extension of time. Ms Bertoli says as follows:

(a) On 11 December 2024 Ms Bertoli's treating general practitioner (GP) referred her to a doctor for an opinion and management of Ms Bertoli's symptoms of burnout syndrome, anxiety, and depression associated with workplace bullying.

(b) On 19 February 2025 Ms Bertoli made enquiries of the GP's reception to schedule a telehealth appointment, and booked to have the appointment on 20 February 2025, but that did not proceed. On 21 February 2025 the GP informed Ms Bertoli that he would be unable to assist her because Ms Bertoli had moved interstate.

(c) On 10 March 2025 the GP wrote a new referral to a psychiatrist in Coffs Harbour. On the same day Ms Bertoli consulted a new general practitioner.

1. In her counsel's written submissions, Ms Bertoli submits that her delay in making a GPC application was "caused by the applicant's health and financial circumstances", and this "is an acceptable explanation for the delay". Ms Bertoli further submits that, given the Certificate was issued on 20 December 2024, being the last day of the working year for the applicant's solicitors, they had limited capacity to attend to Ms Bertoli's instructions.
2. The respondents submit the affidavits Ms Bertoli has made do not disclose an explanation for Ms Bertoli's delay. The respondents point to a number of matters: Ms Bertoli has not provided financial records to support her claim of financial difficulties; Ms Bertoli has not provided any medical evidence to support her claims that she suffered from serious psychological distress and other conditions, noting that, whatever the conditions from which she suffered might be, they did not prevent Ms Bertoli from lodging the application with the FWC on time and participating in the conciliation conference.
3. I am not satisfied Ms Bertoli has provided an adequate explanation for her delay in making the GPC application by 3 January 2025; and that is because she failed to provide relevant details it is reasonable to expect it was within her power to provide. Ms Bertoli does not state by when she was aware that she was required to make a GPC application within 14 days after the Certificate was issued, that is, by 3 January 2025; she does not say what she understood she was required to do to ensure that she would be in a position to make the GPC application by 3 January 2025; and to the extent she understood what it was she was required to do to ensure she made the GPC application by 3 January 2025, Ms Bertoli does not state why she was not in a position to do what she understood she was required to do, and in particular how the symptoms from which she says she suffered prevented or hindered her from doing what she was required to do. Further, Ms Bertoli has not provided medical evidence to show that she suffered from any medical or mental condition or, to the extent she did, how such conditions prevented or hindered Ms Bertoli from doing what she understood she was required to do to be in a position to make her GPC application by 3 January 2025.
4. Ms Bertoli's not having provided an adequate explanation is a factor that weighs against not extending the time by which she may make a GPC application.

1. Ms Bertoli has set out the factual allegations on which she relies in the Form 2 she has filed, and in a statement that is annexure "A" to that document. It is unnecessary to set out the allegations Ms Bertoli makes. All that it is relevant to note is there is no basis on which it could be said that Ms Bertoli would have no reasonable prospects of success if she were permitted to make her GPC application out of time. That is a matter in favour of exercising the discretion to extend time.

1. The extension Ms Bertoli requires is only 7 days. There is no evidence the respondents will suffer prejudice if the extension is granted. The absence of prejudice however, is not a sufficient basis for granting an extension of time.

1. There is no evidence Ms Bertoli has taken action to contest the termination of her employment, other than by applying under the FW Act to the FWC. The absence of such evidence is a neutral factor in determining whether to grant the extension of time.

Fairness as between Ms Bertoli and other persons in a like position

1. There is no evidence that granting or refusing the extension will give rise to any unfairness between the applicant and any other person in a like position to Ms Bertoli.

Proceeding for alleged contraventions of s 527D(1) of the FW Act

1. Ms Bertoli has commenced a proceeding against the respondents for relief based on the respondents' alleged contraventions of s 527D(1) of the FW Act. The factual allegations Ms Bertoli makes in that proceeding overlap with the allegations she makes in the GPC application for which she seeks an extension of time. The relevance of Ms Bertoli's proceeding under s 527D(1) of the FW Act, however, is limited to showing that the respondents will suffer no prejudice if an extension is granted because they will in any event litigate substantially the same matters Ms Bertoli alleges in this proceeding. As I have already noted, however, the absence of prejudice to the respondents is not by itself a reason for ordering an extension of time.

1. Ms Bertoli's not proving an adequate explanation for not making the GPC application within 14 days is a powerful factor against exercising my discretion to make an order extending time under s 370(a)(ii) of the FW Act. The fact that it cannot be said Ms Bertoli's claims do not have reasonable prospects of success, however, coupled with the relatively small period of Ms Bertoli's delay in making that application, are matters which move me to be satisfied that, on balance, and notwithstanding the absence of an adequate explanation for delay, it is appropriate to make an order under s 370(a)(ii) of the FW Act extending the period by which Ms Bertoli may make her GPC application.
2. Ms Bertoli lodged her application at 3.46 pm on 10 January 2025, but it was not accepted for filing until 13 January 2025. Out of an abundance of caution, I propose to order that the period by which Ms Bertoli may make a GPC application be within 24 days after the date of the Certificate, being the 24 day period that ended on 13 January 2025.
3. I will list matter for a directions hearing at 9.30 am on 28 March 2025 or at such other time and date as may be convenient to the parties and the Court.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

[1] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, at pages 299-300