//
[109]
[2025] FWC 3913
General information, not legal advice.
Fair Work Commission
2025-12-22
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 22 December 2025.
References to the Applicant's 'husband' have been amended to 'partner'.
s.365 - General protections (consent arbitration)
Applicant seeking to have Fair Work Commission arbitrate claim as per s.369 of the Act - Applicant failed to lodge required paperwork within the 14-day limit - application for an extension of time for lodgment - extension not granted.
[1] Ms Betul Boz (the Applicant) has made an application to the Fair Work Commission (FWC) under s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging she was dismissed from her employment with ALS Metallurgy Pty Ltd as trustee for Ammtec Unit Trust (the Respondent) in breach of the general protections provisions of the Fair Work Act (the Act).
[2] On 25 July 2025 the Applicant was provided with a letter from the Respondent advising her that her position had been made redundant due to economic downturn and the operational requirements of the business. In response, the Applicant filed an unfair dismissal claim (U2025/12160) which she subsequently withdrew.
[3] The Applicant made her initial general protections application (C2025/7783) to the FWC on 7 August 2025. The matter was allocated to Commissioner Schneider, and he conducted a conciliation conference between the parties on 15 September 2025. At the conference the parties were unable to agree on a settlement figure and so the Commissioner issued a s.368 certificate on that date.
[4] On 26 September the Applicant emailed the FWC stating as follows:
Further to the Respondent's request for arbitration, I have given the matter additional consideration. I confirm that I am willing to proceed to arbitration, provided that both parties and the Commission consent.
Should arbitration not proceed, I expressly reserve my right to pursue the matter in Court.
[5] The Form F8B attached to this email was not signed by the Respondent as required. On 8 October 2025 the FWC Registry rang the Applicant to advise her that the Form F8B was incomplete. As a consequence, the Applicant withdrew that application (C2025/9850) and lodged a new application being the application currently under consideration. That application was accompanied by a completed Form F8B which included the signature of the Respondent. However, the Respondent noted on that form that it was aware that the application was lodged outside of the required 14-day period. Further, it objected to an extension of time being granted and reserved the right to make submissions on any extension contemplated by the FWC.
[6] The matter was allocated to my Chambers on 9 October 2025. On 28 October 2025 I conducted a conciliation conference between the parties. At that conference, the parties negotiated a settlement sum, and both indicated to me that they agreed with this sum being recorded in a deed of settlement to be prepared by the FWC and subsequently signed by the parties. Following the provision of the deed to the parties, the Applicant raised some queries about the extent to which the deed barred her from taking further actions. My Chambers provided the Applicant with an answer with respect to this question that had been confirmed as correct by the Respondent. It was also advised to the Applicant that the Respondent held the view that a binding agreement had been made between the parties.
[7] Having received this, the Applicant then wrote to Chambers on 29 October 2025 as follows:
"I must advise that I am unable to sign the proposed settlement agreement.
I understand that the Deputy President referred to case law suggesting an agreement might have been reached at the conference. However, I want to clearly state that I do not agree that a binding agreement was formed. During the conference on Tuesday, October 28, 2025, I became distressed, felt pressured, and experienced a panic attack. I was emotionally overwhelmed, and this seriously affected my ability to think clearly and make a free and voluntary decision to settle the matter. I do not believe my consent was genuine under those circumstances.
For an agreement to be final and legally binding, a person must be able to give clear, genuine, and unpressured consent. I submit that because of this psychological state, the essential requirement of genuine consent was not present."
[8] I note that at the conference on 28 October 2025 the Applicant was accompanied by her partner who assisted both her and the FWC during the process. Neither the Applicant or her partner made complaint of pressure or distress during the conference or in their initial email correspondence thereafter. Further, the Applicant was given an opportunity to speak privately with her partner prior to agreeing to the final settlement amount and by all appearances had freely agreed with that position.
[9] The Respondent then wrote to Chambers on 4 November 2025 as follows:
"In light of the Applicant's revised position, we see no utility in progressing with the settlement agreement reached on Tuesday this week. An agreement without certainty serves no purpose.
We request instead that the Commission now dismiss the application as it was not validly made, on the following basis:
Should the Commission not be of this view, we ask for the Directions to be amended as per our email dated 24 October 2025 and for the matter proceed to a jurisdictional hearing on 16 December.
[10] In response, the Applicant sent the following email later in the day on 4 November 2025:
"I have received the Respondent's submission requesting the dismissal of my application. I formally oppose their request and appeal to the Commission to allow my case to be heard. My intention from the beginning has been to seek justice and acknowledgment for what happened, not just compensation.
I respectfully ask that this matter be listed for Arbitration on the Merits.
1. The Settlement: I Genuinely Could Not Agree
I sincerely believe I was not in a proper state to give genuine consent to the settlement deed, and I formally withdraw my verbal agreement.
2. Why My Case Shouldn't Be Dismissed on a Technicality
The Respondent is focusing on a minor time-limit issue to avoid a hearing, despite what they first agreed to.
3. Why My Case Has Merit and Needs to Be Heard
The Respondent's defence relies on incorrect facts, which shows why a formal hearing is necessary.
My intention is to achieve justice and acknowledgment by having the full truth of my dismissal heard.
I will be attending the directions conference on Wednesday, November 5th, 2025, prepared to proceed."
[11] I called the parties together for an urgent conference on 5 November 2025 to attempt to resolve the issue of the settlement. The Applicant made it clear that she would not adhere to the position set out in the deed prepared by the FWC. As a consequence, I resolved to deal with the matter of the extension of time on the papers and issued directions to the parties with respect to submissions on that issue.
[12] Unlike the provisions dealing with general protections applications in the first instance and unfair dismissal claims, the Act does not provide specific guidance as to the matters to be considered when determining whether an extension beyond the time limit imposed for applications should be allowed. The relevant sections of the Act are as follows:
"369 Dealing with a dismissal dispute by arbitration
[13] There is no specific guidance given in this section with respect to the circumstances in which the FWC might allow an application made after the 14-day period. However, s.370 which deals with s.365 applications to the courts contains a section - being s.370(a)(ii) - which is almost identical to s.369(1)(c)(i). With respect to s.370(a)(ii) the Act provides a note as follows:
"For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988."
[14] In this matter I have resolved to apply the principles set out in Brodie-Hanns as I regard them as being the most appropriate guide in the circumstances. I should note that in doing so I am making a deliberate distinction between those principles and the matters set out in the Act to be used in determining "exceptional circumstances" for the purpose of extensions of the 21-day limit imposed for applications made under s.365 and s.394. Noting that much of the established case law from the FWC comes from extensions of time under those two sections, I have applied some caution in relying on those cases as I regard "exceptional circumstances" as a higher bar than that set in Brodie-Hanns. I should also note that I set out the Brodie-Hanns principles in my directions to parties and advised them that they should address those principles in their submissions.
[15] For clarity, the principles set out in Brodie-Hanns can are as follows:
[16] The Applicant submitted that there was an acceptable and genuine reason for the delay. Her evidence that following conciliation with Commissioner Schneider she received an email - which was in evidence - from the FWC on 15 September 2025:
"...stating the Respondent wanted to go to arbitration."[2]
[17] Having received this, she then sent her Form F8B to the FWC on 26 September 2025 which was three days prior to the expiry of the fourteen-day period. Her further evidence is that the FWC then telephoned her on 8 October 2025 and informed her about the correct procedure for making an application for arbitration. I note that the Applicant tendered into evidence a screenshot of a phone call that purported to be this call but that the screenshot is of an outgoing, rather than incoming call. However, the FWC's internal records suggest that the FWC initiated a telephone conversation to the effect argued by the Applicant on that day and so I accept that the Applicant's evidence is correct.
[18] Having been advised of the correct process, the Applicant's evidence is that she immediately withdrew her original application and sent a new Form F8B to the Respondent later that same day, being 8 October 2025. The Applicant submits that the delay was not intentional nor a disregard for the FWC's rules. Rather, she submits it was:
"... a genuine error that I made because I am representing myself and am unfamiliar with FWC procedures."[3]
[19] The Applicant submits that on receiving the email from the FWC on 15 September 2025 it was her understanding that the Respondent had already provided its consent to the FWC and as such all that was needed for her to provide her consent. She further claims that she did not realise that the Respondent's signature was also required, and it was not until she received the telephone call on 8 October 2025 that she realised anything was amiss with her application.
[20] The Applicant also submitted that she was undergoing treatment for physical and mental injuries and that these factors contributed to her misunderstanding of the procedural requirements. By way of evidence to support this claim she provided a medical certificate from her doctor.
[21] The Respondent submitted that the Applicant's explanation for the delay was based on a number of false assumptions. It submits that the Respondent had not indicated that it wanted to proceed to arbitration but rather indicated that it was "open to the possibility" of the FWC arbitrating the matter if the Applicant intended to proceed. Further, it had never given consent to such arbitration prior to being served with the Applicant's present application on 8 October 2025. As a side issue the Respondent also noted that the Applicant had failed to serve her 26 September 2025 application on it, in clear breach of the FWC requirements.
[22] When presented with that 8 October 2025 application the Respondent signed it but noted that it objected to the matter being heard on the basis that it was out of time and requested a right to be heard on the issue of the matter proceeding. It submits that the:
"...failure of the Applicant to gain the agreement of the Respondent for the FWC to arbitrate within the time limit and in accordance with procedural rules is not an "unnecessary technicality" to be "avoided" as claimed by the Applicant, it is non-compliance with a statutory requirement."[4]
[23] The Respondent submits that this non-compliance is essentially of the Applicant's own making. It says that an applicant who represents themselves accepts the onus of informing themselves of the relevant requirements and then meeting those requirements. The Respondent submits that the FWC website - to which it notes links were provided by Commissioner Schneider's Chambers - provides sufficient information to guide an unrepresented applicant through the correct process for lodging a Form F8B and that the Applicant's computer skills - as demonstrated in her employment - were more than adequate to allow her to access this material. Further, the Respondent submits that the Applicant lodged a Form F8B on 26 September 2025 and that:
"(e)ven a cursory reading of the form would have made the Applicant aware that the Respondent needed to sign the form."[5]
[24] In her reply submissions, the Applicant in the main relied upon the explanation provided in her initial submissions to explain the delay, albeit that she reinforced some of that explanation. Specifically, she noted that she had acted immediately upon being notified of the error in her application and that the error itself arose from her genuine misunderstanding.
[25] In reviewing the submissions of the parties, I have concluded that the reason for the delay is essentially due to the Applicant's failure to pay sufficient attention to the information that was available to her. In the first instance, I note that she apparently misconceived the position of the Respondent with respect to have the FWC arbitrate the matter. As seen above at [16] she submits that the Respondent wanted to go to arbitration. The email from Commissioner Schneider's Chambers which she relies upon for this assessment states as follows (with my emphasis):
"At the conclusion of the Conference today in the above matter, the Respondent noted that, if you seek to pursue the matter further, it would be open to the possibility of the matter being arbitrated in the Commission instead of in a Court. The Respondent has requested that we notify you of this. If you wish to learn more about this option, please see the information linked below."[6]
[26] The Applicant submits that this email caused her to believe that the Respondent wanted to go to arbitration and that it had also provided its consent - see [19] above. The email as I read it does not indicate that the Respondent wants to go to arbitration, not that it has provided consent. It merely indicates that if the Applicant decided to pursue the matter it was open to the possibility.
[27] Of further concern, the email provided links to the FWC website's page setting information about what the FWC can do with a general protections claim. There is also a link to the page containing the actual form application itself.
I have perused that latter page and it contains the following information:
"Both parties must sign this form before sending it to us. This shows you agree to the process."
"Both the employee and the employer, or their representatives, must sign the form before the employee sends us the application." (emphasis in original)
[28] I have no doubts that this information is clear and unambiguous and advises the Applicant that she must have the application form signed by the Respondent before lodging it. The Applicant notes that she is self-represented. That does not absolve her of the need to follow the correct process when making an application. In my assessment, a diligent applicant would not have ignored the clear instructions provided on the webpage from which the relevant application form is sourced.
[29] I should also comment on the Applicant's claim that her mental condition hampered her ability to properly deal with her application. In support of this claim she provided a medical certificate dated 30 October 2025. That certificate stated as follows:
"Ms Betul Boz has been struggling with her mood - depression and Anxiety with Panic attack since her injury at work on 10/07/2023.
Her symptoms of Depression, Anxiety, and Stress started around 5/10/2023.
She has been on medication and also seeing a Psychologist for the above..."[7]
[30] I note that notwithstanding such difficulties as this condition has created, the Applicant was capable of correctly lodging an unfair dismissal claim, withdrawing this claim because she concluded that a general protections claim was more appropriate and then correctly lodging a general protections claim. Given that she was capable of undertaking those tasks, I am not satisfied that her claim that her condition caused her to make errors in the lodgment of her Form F8B application - noting that she was capable of lodging a correct Form F8B application when the errors were drawn to her attention - has merit.
[31] I am therefore satisfied that the reason for the delay is the Applicant's failure to pay particular attention to the - on the face of things clear and simple - requirements of the application she was seeking to lodge. I note the admonition from the first paragraph of Brodie-Hanns as set out at [15] above:
"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."
[32] Not all applications lodged with the FWC are time-constrained and from this it can be presumed that where the parliament has imposed a time limit, it has done so for a cogent reason and that parties should comply with that limit. In support of this contention, I note the decision of Deputy President McCarthy in Robertson v Zeugma Electrical where the Deputy President was considering an application for an extension of time to lodge an unfair dismissal claim. In his decision, the Deputy President stated as follows:
"The provisions of s.394(4) of the FW Act make it mandatory to lodge matters of this type within 14 days. That obligation is not absolute and may be altered if exceptional circumstances exist. The FW Act does not provide for an application to be allowed if there has been inadvertence or accident by the Applicant. If it had been intended that inadvertence or accident to allow applications to be made beyond the 14 days provided then the legislation would have reflected that intention. Those issues, i.e. accident and inadvertence, are matters that may influence whether exceptional circumstances exist but without more than is provided here it is unlikely it would constitute anything exceptional."[8]
[33] I am mindful - as stated earlier - that in this matter the Deputy President was considering the issue of exceptional circumstances. However, I am persuaded by his thinking with respect to accident and inadvertence not being the sorts of issues contemplated by drafters of the legislation when consideration is being given to allow an applicant to depart from the clearly stated requirements of the Act. It is clear that such things would not meet the test of exceptional circumstances. However, I am satisfied that neither do they meet the test of an acceptable explanation for a delay. Given this, I find that the reason for the delay, being the Applicant's errors, does not provide any support for the granting of an extension.
[34] As set out above at [15] this consideration looks to actions taken other than making applications under the Act. It is instead concerned with actions taken by an applicant directly with a respondent outside of the FWC to challenge the termination. A lack of such actions will not necessarily count against an applicant getting an extension of time, but where it can be demonstrated that such actions were taken, this is likely to count in favour of the applicant.
[36] The Applicant submits that the Respondent has suffered no prejudice because of the delay. She says that the Respondent has already given its consent to the arbitration, and the delay of nine days is not likely to have caused any issues with the availability of evidence or the recall of witnesses. In her reply submissions the Applicant further submits that while there is no prejudice to the Respondent, there will be prejudice to her if an extension is refused and therefore the balance of prejudice favours an extension.
"it would be prejudicial to the employer some months on to proceed with a matter the Respondent reasonably believed had ended some months earlier, and then again with the settlement reached at the Conference on 28 October 2025."[10]
[39] In this matter, I am not satisfied that there would be any significant prejudice to the employer of the kind that would count against granting an extension. It appears to me that time involved is not sufficient to cause prejudice in terms of recall or availability of evidence, and the mere fact of having to defend the case is not a prejudice.[12]
[40] However, I should comment on two issues. Firstly, the Applicant's - repeated - assertion that the Respondent had given its consent to arbitration. Again, I do not find that this can be said to be unequivocally the case. Secondly, the notion that there should be a balance of prejudice considered. This is incorrect. As noted in Taylor:
"In this regard we have difficulty with the notion of weighing prejudice to an applicant against prejudice to the respondent. In one obvious sense the prejudice to the present respondent is absolute if her application is refused. She can never litigate her claim. But that cannot be enough of itself to warrant an extension of time; in truth there would be no discretion to be exercised. For that reason we do not accept the respondent's argument that the District Court fell into error in failing to balance the prejudice to the appellant against the prejudice against the respondent."[13]
[41] As noted in Brodie-Hanns, the lack of prejudice to the Respondent does not weigh in favour of granting an extension. As such, I regard this particular issue as neutral in my consideration of an extension.
[42] The merits of the substantial application are a factor that the FWC may take into consideration. However, as with most applications of this kind, consideration of merits is not undertaken to any serious extent in the assessing of extensions of time. Previous cases have noted that to do so puts the parties in a position where they are essentially at risk of having to run their merits arguments twice. Given this, the FWC will look to any very obvious issues of merit that can be determined and potentially rely on those if it is to make a call on the merits.
[43] In this matter the typical scenario is found: the Applicant claims her case has clear merit and the Respondent submits that it has no merit whatsoever. In looking at the material provided I find that it is difficult to make a definitive call on the merits without seeing certain elements of the evidence tested in open court. On that basis, I am not inclined to make any assessment of the merits for the purposes of deciding on an extension and will regard this issue as neutral in my considerations.
Considerations of fairness between the Applicant and persons in a like position
[44] Neither party made any relevant submissions on this issue and I am not aware of any persons in a like position. On that basis I have resolved to treat this issue as neutral in my assessment of an extension of time.
[45] It is clear that the decision to allow an extension of time is a discretionary decision for the FWC. Brodie-Hanns provides guidance as to matters that may be considered, but it does not in my view limit the FWC to those matters only. Instead, if there are matters that appear relevant the FWC should take them into account. On that basis, I have resolved to consider certain other considerations contained in the submissions of the Parties.
"...incapacity due to a medical condition, unsupported by any evidence either prior to or at the Conference. If the Applicant had a medical condition that could impact her capacity to make a decision, it was her responsibility to disclose that to the Commission at the time. The Conference could have been adjourned and the time of the Commission and the Respondent not wasted. A medical certificate provided weeks later serves no purpose and provides no excuse."[15]
[47] The Applicant did not address this accusation from the Respondent in direct terms albeit that her reply submissions can be taken as refuting any suggestion that her claim in and of itself has merit. In terms of the withdrawal of her original unfair dismissal claim, I do not accept the characterisation made by the Respondent that such withdrawal was in any way a misuse of process. In some circumstances, an employee may have a scenario in which they can only make a general protections claim. In other situations, an unfair dismissal claim may be the appropriate choice. However, there are situations where an employee may need to choose between the two jurisdictions due to the particular nature of their complaints. If they choose to change their mind as to which they pursue within the 21-day time limit, then I cannot see that this is either prohibited by the Act - assuming s.725 is not invoked - or to be regarded as untoward.
[48] However, I am minded to consider the issue of the purported withdrawal of consent to the agreed settlement. It is the case that the parties have made submissions to Chambers on this issue when I raised the concern about whether a binding settlement had been reached. On the basis that those submissions addressed the reason for withdrawal, I am satisfied that I can give it some consideration. I agree with the Respondent that it is not reasonable for an Applicant to attend a conference and make no mention of potential issues that might impact their ability to participate properly.
[49] The Applicant gave no such indication prior to conference, nor did she give such indication during the conference, or indeed in her initial written correspondence with Chambers after the conference had been completed. The Applicant was accompanied in the conference by her partner and provided with an opportunity to discuss the settlement with her partner in private before giving her agreement. For her to then some days later claim that she had not given her consent because she was incapable of doing so does support the Respondent's assertion that a considerable amount of its time, and time of the FWC, was wasted.
[50] However, this wasting of time would be a source of vexation but potentially not to the extent that it would count against an extension of time being granted. However, unlike the Applicant I remain of the view that it is at the very least arguable that the Applicant may have entered into a binding settlement with the Respondent and it may be the case that the Respondent - at a later time - could seek to rely on this settlement as a bar to proceedings. Were this matter to be finely balanced as to outcome such a possibility may weigh against an extension. However, I will comment further on this below.
[51] In her reply submissions, the Applicant argues that justice demands that the FWC properly examine her allegations of adverse action and discrimination, as by doing so it is reinforcing the protections afforded by the Act.
[52] To this I respond that there is capacity for the FWC to undertake such investigations - provided the applicant complies with the requirements of the Act. Where the parliament has chosen to apply various criteria to applications, it is always possible that cases that perhaps ought to be examined will not be because the applicant fails to comply with the requirements of the relevant Act. This has not escaped the attention of the drafters of legislation. However, they have still imposed the criteria.
[53] The FWC routinely refuses applications where the applicant claims their application for unfair dismissal was late because they were anxious and depressed. The reason given is that such emotions are usually experienced by all persons who are dismissed and there is nothing unusual about such an experience. I have no doubt that almost all applicants would claim that their application has merit and that justice can only be upheld if the application is properly considered. Against this I need to weigh the fact that - merits aside - the Act has important criteria that must be met before the FWC can consider certain application such as the one currently under consideration. Given this an appeal to justice while no doubt heartfelt is not sufficient to ignore the legislative requirements.
[54] The Applicant also submitted that the case has broader implications. She submits that if she is not able to pursue her claim then it:
"...may signal that employers can rely on procedural technicalities to avoid scrutiny of adverse actions.
Such an outcome could encourage similar conduct in the future, particularly against employees with injuries or disabilities, undermining the protective purpose of the Fair Work Act."[16]
[55] In the first instance, I would again note that such "procedural technicalities" as the Applicant is considering can only be the requirements of the Act. I have already indicated my views on this but to reiterate, these are requirements inserted by the Parliament and not mere "serving suggestions". They exist for a purpose and should be adhered to in each case. In terms of encouraging misbehaviour, such encouragement as might come could only logically be in cases where applicants have already failed to meet the clearly set out requirements of the Act. Presumably the Applicant is not suggesting that employers would flout the provisions of the Act in the hope that applicants would fail to properly meet those requirements. As such, I reject the notion that this "broader implications" argument should be given any weight.
[56] In assessing the matters set out in Brodie-Hanns I have found that they are all neutral save for the reason for the delay, which I am satisfied weighs against granting an extension. In terms of the additional matters raised by the Parties, I have dismissed two of them and in terms of the third, if I had been wavering on the decision the Applicant's withdrawal from the settlement may have caused me to find against an extension. However, I find that the reason for the delay is clear and does not lend itself to a finding that there should be an extension of time. On that basis, I have not relied upon the withdrawal from settlement issue when making my decision.
[57] In conclusion, I am not satisfied that there are sufficient grounds to grant an extension of time for the Applicant to lodge her Form F8B paperwork. On that basis the FWC cannot deal with the Applicant's application made pursuant to s.369 of the Act as it does not comply with the requirements of s.369(1).
[1] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[2] See Applicant Submissions page 1 at heading 1 dot point 2.
[4] See Respondent Submissions page 2 at [14].
[6] See Annexure 1 to Applicant Submissions.
[7] See Annexure 6 to Applicant Submissions.
[8] Tomica Robertson v Zeugma Electrical & Communications Services Pty Ltd [2010] FWA 4525 at [13].
[9] See Applicant Submissions page 2 at [2] and [5].
[10] See Respondent Submissions page 1 at [6].
[11] See Brisbane South Regional Health Authority v Taylor (1996) 186 ALR 1 at 11.
[12] See for example Clarke v Service to Youth Council Inc [2013] FCA 1018 at [31].
[14] See Respondent Submissions page 2 at [8].
[16] See Applicant's Reply Submissions page 3 at [1] - [2].
Printed by authority of the Commonwealth Government Printer
Betul Boz
ALS Metallurgy Pty Ltd atf Ammtec Unit Trust [2025] FWC 3913
(1995) 67 IR 298
(1996) 186 ALR 1