s.773 - Application to deal with an unlawful termination dispute

Application to deal with an unlawful termination dispute

• [1] Mr Bradley Johnson (the Applicant) has applied under s. 773 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission to deal with an unlawful termination dispute with respect to his termination with Saveba Pty Ltd T/A Coco Republic (Coco Republic). Mr Johnson commenced employment with Coco Republic in February 2024 as a Senior Design Consultant and was dismissed from his role on 9 May 2025, the dismissal took effect on that day.

• [2] Coco Republic objected to the application on the basis that Mr Johnson had filed his application outside of the statutory period set by s.774 of the Act. Mr Johnson's application was made 23 days after the 21 day time limit, I am therefore required to determine whether a further period of time to lodge the application should be allowed.

• [3] The question of whether an application for an unlawful termination is made outside the required time is not strictly a jurisdiction objection.[1] An application made outside of the time required by s.774 is not a valid application unless a further period for making the application has been granted.[2] For Mr Johnson's application to proceed an extension of time must be granted. In deciding whether there are exceptional circumstances to enliven the discretion to extend time, I am required to consider and give appropriate weight to each of the matters outlined in s.774(2).[3]

• [4] Earlier this morning I conducted a hearing, at its conclusion I informed the parties that I had granted the application for an extension of time for Mr Johnson to file his application and the matter proceeded to a conference. I informed the parties that I would provide written reasons for the decision. My consideration of each matter in s. 774(2) in the context of Mr Johnson's application for an extension of time and reasons for my decision are set out below.

• [5] The factual background to Mr Johnson's application is summarised below.

• [6] On 20 May 2025, Mr Johnson filed a F8 general protections application. On that same day he filed his F9 unlawful termination application, both applications were made within the time allowed by the Act.

• [7] On 4 June 2025, the F8 application was served on the Respondent.

• [8] On 5 June 2025, Mr Johnson contacted the Commission informing the Commission that he had obtained legal advice and had a complex query. Mr Johnson informed the Commission that due to its complexity he would submit his questions in writing.

• [9] On 6 June 2025, Mr Johnson emailed the Commission seeking clarification and explaining his confusion about lodging both a F8 and F9. Mr Johnson stated his F8 was lodged in error and he confirms that he wanted to proceed with his F9 application and have his F8 application cancelled.

• [10] On 9 June 2025, a Commission staff member from the client services team contacted Mr Johnson informing him that the 6 June 2025 email he had provided to the general protections team had been sent to the client services team and they queried whether Mr Johnson had taken any steps to discontinue his F8 application before filing his F9 application. The Commission file note records that Mr Johnson was of the belief that his F8 application had not properly been submitted because it was a draft and not completed.

• [11] On 10 June 2025, a discontinuance notice was sent by the Commission to the parties and the F8 application was closed.

• [12] On 11 June 2025, Mr Johnson contacted the Commission seeking to clarify if his applications had been discontinued and queried the status of his F9 application. The Commission staff member advised Mr Johnson that he had contacted the general protections team and as they did not have carriage of his F9 application he would have to refer his questions on to the relevant team and provided Mr Johnson with a telephone number for him to call.

• [13] On 12 June 2025, Mr Johnson contacted the Commission on the number he had been provided and queried the status of his F9 application explaining that he was of the belief that he had not properly filed the F8 and subsequently filed the F9. Mr Johnson's query was passed on and later that day the Client Services Manager contacted Mr Johnson regarding the filing of multiple applications and that his F9 application had been considered invalid. In response to a query about the appropriate application, the file note states that Mr Johnson was informed that that the Commission could not provide legal advice however the F9 may not be the appropriate application and referred Mr Johnson to seek his own legal advice. After being informed that his F8 had been cancelled and his F9 had been considered an invalid application, Mr Johnson queried if he could then have his F8 reopened. Mr Johnson was advised that re-opening a case may not be possible and he may be required to lodge a new application, and he was advised that his application would be out of time if it was relodged. Mr Johnson then advised that he did not want to discontinue his F9 application and that he would seek urgent legal advice.

• [14] On 13 June 2025, Mr Johnson again contacted the Commission and advised that he intended on proceeding with his F9 application. Mr Johnson was provided with information about the different applications and that the Commission could not advise which application to lodge and that he would need to confirm his intentions. The Commissions file note states:

"Reminded A that current F9 application is considered a second lodgement and invalid, requiring discontinuance before the lodgement of any new application. A is seeking secondary legal advice to confirm which application he wishes to proceed with and did not want to discontinue."

• [15] On 17 June 2025, Mr Johnson sent an email to gpt@fwc.gov.au and made written submissions explaining the events that had occurred and requesting an extension of time for his F9 application already filed with the Commission to be accepted because it had been filed within the 21 day timeframe.

• [16] On 19 June 2025, Mr Johnson was advised that he needed to lodge a new F9 application.

• [17] On 22 June 2025, Mr Johnson lodged a new F9 application.

• [18] According to Mr Johnson at the time of making his application he was struggling with the effects of a domestically violent relationship from which he had recently fled which he says led to the termination of his employment. Mr Johnson says he had also just become aware that he had become the victim of an identity theft.

• [19] It is uncontroversial that Mr Johnson's original F8 and F9 applications were filed within the prescribed period allowed by the Act for filing either of those applications. Before filing his applications Mr Johnson received legal advice and filed a F8 application. According to Mr Johnson later that day he was advised by the legal representative that the F8 was the wrong application and that he needed to file a F9. Mr Johnson promptly filed the F9 thinking that his F8 had not been properly filed.

• [20] The Commission records show that Mr Johnson contacted the Commission on a number of occasions seeking clarification about the progress of his F9 application. It is clear from the correspondence between the Commission and Mr Johnson that, at all times other than making the initial F8 application, Mr Johnson intended on proceeding with his F9 application however confusion arose about having filed multiple applications. It is important to note that the issue of filing multiple applications was not raised with Mr Johnson until after 9 June 2025.

• [21] Mr Johnson spoke to the Commission on 13 June 2025, a misunderstanding arose out of that conversation about what was required of him and on 17 June 2025 Mr Johnson submitted what he erroneously understood to be an out of time application writing to the Commission seeking to have his F9 application progressed. On 19 June 2025, the Commission wrote to Mr Johnson to notify him that he would need file a new application. Mr Johnson was unable to obtain access to his original F9 application as his Microsoft subscriptions had been cancelled because he was unable to pay his bills due to his financial circumstances. He again wrote to the Commission and requested a copy of his original F9 application so he could copy the details into a new application. The Commissions records show that on 20 June 2025 the Commission responded to Mr Johnson's request. Following the receipt of his original F9 application, Mr Johnson promptly filed his new F9 application.

• [22] I am satisfied that until 19 June 2025 Mr Johnson held the belief that his F9 application had been filed on time and it was a valid application before the Commission. The confusion about there being a valid application before the Commission came about as a result of Mr Johnson filing multiple applications. Mr Johnson at all times held the belief that his F8 had not properly been filed until he was informed otherwise on 12 June 2025. It appears the confusion was exacerbated further when Mr Johnson was communicating with both the general protections team and the client services team within the Commission. Further, and as previously identified the issue of having filed multiple applications was not brought to Mr Johnson's attention until 12 June 2025. Whilst I have no criticism of the information that was provided to Mr Johnson by the Commission on 12 June 2025, it is clear that in the context it was given and Mr Johnson's state of mind at the time, further confusion about the status of his F9 application arose. At that time the Commission informed Mr Johnson that the F9 application may not have been the appropriate application and referred him to seek legal advice. Mr Johnson was informed that his application would be out of time if he was to relodge and in response Mr Johnson advised that he didn't want to discontinue his F9 application because he clearly didn't want to relodge a F9 application when he erroneously understood there to be a valid F9 application before the Commission. I accept that Mr Johnson had not understood that his F9 application was not a valid application and he thought that if he withdrew his application and refiled it, it would be out of time. This is evidenced in the file note at the end of the conversation on 12 June 2025, in which Mr Johnson requested that his F9 application proceed. The actions Mr Johnson took after being notified that his F9 application had been discontinued further support that Mr Johnson had at all times intended to proceed with his F9 application and took the necessary steps to do so.

• [23] I am satisfied that the circumstances before me are not a case where Mr Johnson had simply misunderstood the legal forms and procedures. I am also satisfied that the events that occurred were not a case of simply receiving the wrong legal advice. I am satisfied that Mr Johnson made repeated attempts to understand the status of his F9 application and the circumstances set out in above at [21] and [22] should be regarded as unusual and out of the ordinary and therefore is an exceptional circumstance. This weighs in favour of granting an extension of time.

• [24] Turning to the other considerations 774(2)(a)-(e), it is uncontested that other than filing his F9 and F8 applications, Mr Johnson took no other action to dispute his dismissal. Mr Johnson did not make any submissions pertaining to s.774(2)(e). Mr Johnson submits there can be no prejudice to the employer because the factual basis is in the same words in his first F9 application and this current application before me. Coco Republic submitted permitting the application to proceed would prejudice the employer due to the costs involved in re-engaging with the matter when it was filed out of time. A relevant prejudice is one that the employer would not have suffered had the application been made within the time period. I am not persuaded that there would be a relevant prejudice to the employer in defending the matter that would not have arisen had the application been filed within time.[4] I am also not persuaded by Coco Republic's submission that reopening a discontinued matter that is over three weeks out of time risks procedural injustice or would cause prejudice to the employer because the delay was not extensive in the circumstances. Mr Johnson took appropriate and timely action immediately after he was made aware of the discontinuance of his F9 application. I find these to be neutral considerations.

• [25] The merits of this application are in dispute and where there is a factual dispute the Commission does not determine the merits of an unlawful termination application filed out of time, and I do not intend to do so. I find this to be a neutral factor.

• [26] Having regard to all of the matters listed in s.774(2) of the Act, I am satisfied that there are exceptional circumstances warranting an extension of time.

• [27] The matter will proceed to a conciliation conference.

[1] Herc v Hays Specialist Recruitment (Australia) Pty Ltd [2022] FWCFB 234.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [18].

[4] Ms Karen Tan v Lisa Miscamble, General Manager, Wingecarribee Shire Council & Kathryn Baget-Juleff, Manager, Community, Life And Libraries and Another - [2024] FWC 1737 at [32].

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