• [55] The notice of discontinue filed in relation to the UFD Application selected the first option, that Ms Hardgrove wholly discontinues the matter.

• [56] Ms Hardgrove stated that between 21 August 2024 and 17 September 2024, she was exchanging emails with Law Firm B on "an almost daily basis" seeking updates on the preparation of the general protections application. Under cross examination, Ms Hardgrove stated that the first draft contained considerable factual errors which needed to be corrected, and it took several requests by her to correct those matters.[46]

• [57] On 17 September 2024, the draft application was sent to Barrister C to review and settle.[47]

• [58] On 18 September 2024, Barrister C requested copies of Ms Hardgrove's contract of employment and the letter of termination. These were provided on 19 September 2024.[48] Barrister C provided a final draft of the general protections application to Law Firm B and Ms Hardgrove on 24 September 2024.[49]

• [59] Ms Hardgrove stated that she then went through the draft application with Law Firm B and there were "a few rounds of amendments." Ms Hardgrove stated that this phase of preparing the application was hampered by the different time zones in which Ms Hardgrove and Law Firm B were located and injuries she had suffered during a flight from Paris to Los Angeles.[50]

• [60] On 15 October 2024, Law Firm B lodged the Second GP Application. The Second GP Application was subsequently allocated to my Chambers.

• [61] The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute must be made only if it is satisfied that there are 'exceptional circumstances'. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[51] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[52]

• [62] The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [63] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(b) any action taken by the person to dispute the dismissal;

(c) prejudice to the employer (including prejudice caused by the delay);

(e) fairness as between the person and other persons in a similar position.

• [64] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.

• [65] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[53]

• [66] I now consider these matters in the context of this application.

• [67] The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, however all of the circumstances must be considered.[54]

• [68] Ms Hardgrove submits the following reasons for the delay:

(i) Representative error;

(ii) Medical incapacity; and

(iii) Impact of time zone/geographical location.

• [69] In written submissions filed on behalf of Ms Hardgrove it was submitted that the fundamental reason for the delay is that she received incomplete or negligent advice that her original general protections dismissal application was not the appropriate form of legislative remedy for her to pursue in relation to her dismissal.

• [70] It was submitted that the advice provided by Law Firm A, Barrister A and Barrister B was incomplete or negligent because:[55]

1. the Applicant had workplace rights within the meaning of s. 341(1)(c)(i) and (ii) of the FW Act to make complaints to her employer in relation to her employment, and to the regulator SafeWork NSW (SafeWork);

1. the history of the Applicant's employment shows that she exercised those workplace rights on several occasions during her employment (namely, 7 July 2023, 8 November 2023 and 5 December 2023), such that the Applicant was afforded the protection against 'adverse action' being taken by Google because she exercised those rights (s. 340(1)(a));

1. that history also shows that there was a series of escalating disciplinary actions taken by Google after the Applicant made her complaints to both Google and SafeWork, culminating in a form of adverse action identified in s. 342 of the FW Act, namely the Applicant's dismissal;

1. the Applicant was also entitled to the protection against discrimination in her employment on the basis of a physical or mental disability under s. 351 of the FW Act;

1. the Applicant's employment history shows that she was directed by Google to attend psychiatric IME's apparently on the basis that a mental disability was imputed to her by her employer;

1. the general protections application would attract the operation of the 'reverse onus of proof' under s. 361 of the FW Act;

1. there is no legislative cap on the amount of compensation that may be awarded to the Applicant in a general protections application;

1. reinstatement is a remedy that may be granted in a general protections application (just as in an unfair dismissal application).

• [71] It was submitted that based on the incorrect advice given to Ms Hardgrove, the First GP Application was incorrectly withdrawn against Ms Hardgrove's preference, and that the delay in commencing the Second GP Application fundamentally arises from this erroneous advice.

• [72] It was also submitted that the length of delay in making the Second GP Application after the UFD Application was discontinued was due to Law Firm B's delay in preparing the application.

• [73] In oral submissions, Ms Hardgrove submitted that the volume of evidence was overwhelming and she had difficulty understanding the relevant facts of her case in order to form an opinion of the most appropriate jurisdiction.

• [74] Ms Hardgrove submitted that her legal representatives were resistant to running a general protections application and she did not receive advice relating to the merits of a general protections application until she spoke with Barrister C. Ms Hardgrove submitted that because of the statutory time limit she felt she had to pursue the UFD Application.

• [75] The giving of wrong advice by a legal or industrial representative or advisor is a species of representative error.[56] The relevant principles of representative error were established in Clark v Ringwood Private Hospital[57] (Clark) and were summarised by the Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal & Islander Child Care Agency[58] as follows:

'In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.

(iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be considered.'[59]

• [76] Having regard to these principles and the evidence before me, I am not satisfied that there is any basis to contend that representative error, whether through alleged incomplete or negligent advice, or delay, is an acceptable or reasonable explanation for the following reasons.

• [77] First, Ms Hardgrove contends that the incomplete or negligent advice was given during conferences with Law Firm A on 3 May 2024, Law Firm A and Barrister A on 6 May 2024, and Law Firm A and Barrister B on 22 May 2024. In each case, Ms Hardgrove has not particularised the questions or advice she sought or the response that was given. Although Ms Hardgrove sent correspondence to Law Firm A on 7 May 2024 seeking further advice, including advice on the merits of a general protections application in light of correspondence from SafeWork NSW, Law Firm A confirmed later that day that the SafeWork NSW correspondence does not change the advice of Barrister A given on 6 May 2024.

• [78] Second, the email correspondence sent by Ms Hardgrove to Law Firm A on 7 May 2024 refers to the UFD Application being "easier to pursue", "the most obvious", and "the least effort". It is difficult to see how Ms Hardgrove was able to form those views if she had not received any advice about the merits of the First GP Application and the way in which a general protections application proceeds through the Commission and the Federal Court, compared to pursuing the UFD Application.

• [79] Third, the matters set out in Ms Hardgrove's submissions as purportedly justifying the receipt of incomplete or negligent advice[60] are no more than generalised statements regarding alleged factual matters, the rights and entitlements under Part 3-1 of the FW Act, matters relevant to the conduct of a general protections court application, and the remedies that might be awarded. They cast no light on whether Ms Hardgrove was provided with incomplete or negligent advice.

• [80] Fourth, I reject Ms Hardgrove's contention that Law Firm A "proceeded" with pursuing the UFD Application contrary to her wishes. That contention flies in the face of the correspondence that she sent to the Commission on 8 May 2024 stating it was her intention to pursue the UFD Application.

• [81] Fifth, the correspondence sent to Ms Hardgrove by Law Firm A on 28 May 2024 refers to Ms Hardgrove having received advice regarding general protections applications from Barrister A, Barrister B and Law Firm A, including, contrary to Ms Hardgrove's evidence, advice about the compensation limits that apply in the different applications. That correspondence also refers to the advantages and disadvantages of the different application types and requests that Ms Hardgrove provide instructions as to how she wishes to proceed. There is nothing in that correspondence that could be characterised as Law Firm A acting against, or resisting, Ms Hardgrove's instructions.

• [82] Sixth, the contention that the delay in making the Second GP Application arose from the erroneous advice regarding the withdrawal of the First GP Application is inconsistent with Ms Hardgrove seeking advice from her new lawyers, Law Firm B, in late June 2024 and her subsequent correspondence to the Commission that she wishes to continue with the UFD Application. To the extent that Ms Hardgrove contends that Law Firm B also railroaded her into continuing with the UFD Application, there is no evidence to support that.

• [83] Seventh, there is no evidence of the advice provided by Barrister C, and how that differed from, or was more complete and/or accurate than the advice provided by Law Firm A, Barrister A, or Barrister B in relation to Ms Hardgrove's decision to pursue the UFD application on 8 May 2024, or Law Firm B in relation to Ms Hardgrove's decision to pursue the UFD Application on 28 June 2024.

• [84] Eighth, there is no evidence to support the contention that the delay in making the Second GP Application be apportioned to Law Firm B. In the period between 21 August 2024 and 17 September 2024, Ms Hardgrove described the frequency of her email communications with Law Firm B as being "almost daily."[61] Ms Hardgrove also stated that upon receiving the draft application prepared by Barrister C, it took "a few rounds of amendments" between her and Law Firm B to finalise it. Despite referring to the existence of almost daily written communications and "a few rounds of amendments", Ms Hardgrove has not sought to tender any of that material into evidence or otherwise explained how (or why) any delay over this period should be properly apportioned to Law Firm B. In the absence of this material, I cannot be satisfied that Ms Hardgrove was blameless, noting that the conduct an applicant is a central consideration in deciding whether representative error provides an acceptable or reasonable explanation for the delay.

• [85] There is simply no evidence to support what is described as the fundamental reason for the delay: that Ms Hardgrove was provided with negligent or incomplete advice. That a written submission of that nature was made by Barrister C against Law Firm A, Barrister A and Barrister B in the absence of any direct evidence of the advice those legal practitioners provided is concerning to say the least. There is also no evidence to support a conclusion that Ms Hardgrove was blameless in relation to that part of the delay following the discontinuance of the UFD Application.

• [86] On the material before me, there is no reason to doubt that the legal advice and conduct of Law Firm A, Barrister A, Barrister B and Law Firm B was anything other than sound. It follows that I do not consider that representative error is an acceptable or reasonable explanation for the delay in making the Second GP Application.

• [87] Ms Hardgrove submitted that she suffered a number of physical injuries which affected her mobility and capacity throughout the period of delay.[62]

• [88] In Victor Blanco v White Bathroom,[63] Deputy President Easton set out a helpful summary of the relevant authorities in the context of an application for an extension of time as follows:

[44] Sometimes an applicant's medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant's mental illness and in other cases the Commission has not found exceptional circumstances.

[45] In Roberts v Westech IT Solutions Pty Ltd. Senior Deputy President O'Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the Applicant's depression. The Applicant provided advice from his doctor that included details of the Applicant's clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the Applicant also said he had been "given the run around by the phone system which took some time to navigate around", the effect of which appears to have been made worse by the Applicant's mental health.

[46] Similarly in Beard v Valley Industries Limited Deputy President Saunders found that there were exceptional circumstances "as a result of the significant deterioration in his mental state shortly after his dismissal, [the applicant] was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal." In that matter the Applicant's claim was supported by medical evidence from his GP, including evidence that two different medications prescribed to the Applicant that had negative side effects. The Deputy President noted that "after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission".

[47] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person's life, but that such responses and consequences are not unusual.

[48] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the Applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however "[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period." The Full Bench affirmed the finding at first instance that the medical evidence "did not positively demonstrate that the Appellant's depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame" and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O'Callaghan in Roberts but found "the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context."

[49] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant's evidence from her treating psychologist concerning her "major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder" primarily by reference to the psychologist's assessment of the Applicant's capacity to act. The Full Bench endorsed the finding at first instance that on the evidence "the appellant's mental state did not prevent her capacity to engage in day to day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay."

[50] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that it is very difficult for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit without proper and specific medical evidence.

[51] In summary the following principles apply:

(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);

(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the Applicant's capacity to lodge the application within the statutory time limit (per Roberts, Beard and Underwood);

(iii) the evidence should positively demonstrate that the Applicant's depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Beard, Underwood and Merhi); and

(iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).

• [89] In Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd,[64] a Full Bench of the Commission stated:

[26] There was no medical evidence concerning the reason for delay in filing the Application between the expiry of the 21-day period on 18 January 2023 and when the application was filed on 9 February 2023. The absence of any such evidence left the Deputy President with no basis upon which she could find there where was a credible explanation for that period of delay.

[27] In an appeal of a decision that dealt with the granting of an extension of time for a late application for an unfair dismissal remedy, the Full Bench in Australian Postal Corporation v Lili (Karen) Zhang (Zhang) was required to similarly consider medical evidence advanced in support of the claim that the applicant in that matter had been incapacitated by trauma, stress and depression. The Full Bench relevantly stated as follows in relation to the absence of direct medical evidence going to the period of delay:

"[21] Drawing on the above, it does not appear that Ms Zhang was incapacitated for the period January 2015 until 24 April 2015 when her application was received by the Commission when, based on her own submissions, she was attending interviews for jobs. Nor does it appear that she was incapacitated prior to 20 September 2014 when she collected her possessions from Australia Post. More significantly, however, it is not clear to us on what basis the Commissioner felt qualified to make a determination that Ms Zhang suffered from PTSD in the immediate aftermath of her termination.

[22] In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application."

[28] The Full Bench's comments in Zhang stand for the proposition that more than lay person opinion is required to support a claim that a person was medically incapacitated such that they could not have filed an application for a general protections dismissal or unfair dismissal application earlier than they did. We concur with the Full Bench's comments in Zhang that 'compelling medical evidence' is required to support a conclusion that the reason for the delay was due to the individual's medical condition. The Deputy President in the present matter had no medical evidence before her, let alone 'compelling medical evidence', to explain the delay in filing the Application. Were the Deputy President to have accepted the Appellant's opinion that she was medically incapacitated between 28 December 2022 and 9 February 2023, the Deputy President would in our view have fallen into the same error identified by the Full Bench in Zhang.

• [90] In Woolworths Limited v Lin,[65] a Full Bench of the Commission found that medical evidence that was generalised and did not address an applicant's capacity to make an unfair dismiss application was not sufficient to explain the reason for the delay.[66]

• [91] The authorities set out above are clear that if a medical condition or incapacity is relied on, there should be compelling medical evidence demonstrating that it had a material impact upon an applicant's capacity to make an application within the statutory time limit and that an applicant's self-assessment of their medical or psychological incapacity is unlikely to be sufficient.

• [92] There is no medical evidence before me that speaks to Ms Hardgrove's medical conditions or incapacity. In the proceedings before me, Ms Hardgrove stated that she provided medical evidence to Law Firm B and submitted (or at least questioned) whether Law Firm B's purported failure to provide that information to the Commission constituted representative error.[67]

• [93] I do not accept this submission. Ms Hardgrove communicated regularly with her legal representatives and the Commission by email. As stated earlier, in the period between 21 August 2024 and 17 September 2024, Ms Hardgrove described the frequency of her email communications with Law Firm B as being "almost daily."[68] If Ms Hardgrove did provide medical evidence to Law Firm B, along with instructions to submit to the Commission that she was incapacitated and that her incapacity contributed to the delay in making the Second GP Application, then it is most likely there would be email correspondence evidencing that.

• [94] However, even if there was medical evidence regarding Ms Hardgrove's medical condition or incapacity, that does not require the Commission to conclude that simply because it declares a person to be suffering from a relevant condition that it renders the person incapable of completing and lodging an application under the FW Act within the required time.[69] The opinion of a person's medical practitioner or treating professional is a relevant consideration to be taken into account together with all the other available information before the Commission.[70]

• [95] The other available information relevant to my consideration is that Ms Hardgrove made applications to the Commission on 18 April 2024 and was regularly communicating in writing with her legal representatives and the Commission up to 21 August 2024. There is nothing in those communications that supports a conclusion that Ms Hardgrove's physical injuries were such to prevent or delay the making of the Second GP Application. From 21 August 2024 to 15 October 2024 - the period during which Ms Hardgrove contends she was suffering from a number of physical injuries - Ms Hargrove was able to communicate on an almost daily basis with Law Firm B, as well as review and amend the draft application.

• [96] For the reasons set out above, I am not satisfied that medical incapacity is an acceptable or reasonable explanation for the delay.

• [97] Ms Hardgrove contends that the time difference between her overseas location and Australia had a "significant impact" in preparing the Second GP Application.

• [98] I accept that the time difference between those locations will cause some delay and inconvenience. However, Ms Hardgrove has not demonstrated how the time difference had a "significant impact" on the preparation of the Second GP Application. As stated earlier, Ms Hardgrove has been located predominantly overseas since at least April 2024 and the time difference does not appear to have had any significant impact. In that time, Ms Hardgrove made two applications on 18 April 2024 and has regularly corresponded with the Commission and her legal representatives,

• [99] Accordingly, I am not satisfied that the time difference and/or Ms Hardgrove's location is an acceptable or reasonable explanation for the delay.

• [100] For the reasons set out above, I do not consider the matters raised by Ms Hardgrove, individually or together, constitute an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

s.366(2)(b) - Action taken to dispute the dismissal

• [101] Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[71]

• [102] In Hunter Valley Developments Pty Ltd v Cohen[72], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[73]

• [103] Ms Hardgrove submitted that she took action to contest her termination by making the UFD application and the First GP Application on the day of her dismissal.

• [104] Google does not dispute that Ms Hardgrove took this action to contest her termination. However, Google submits that it was entitled to believe that any active contest ceased on 21 August 2024, when Ms Hardgrove wholly discontinued the UFD Application and then did not make the Second GP Application for 55 days.

• [105] In reply, Ms Hardgrove submitted that Google was on notice from 29 July 2024 that she was considering making a general protections application.

• [106] I accept that Ms Hardgrove took action to contest her dismissal by making the UFD Application and the First GP Application, and by sending the correspondence dated 29 July 2024 stating that she was considering making a general protections application.

• [107] The correspondence sent on 29 July 2024 was sent 23 days prior to discontinuing the UFD Application. The Second GP Application was then made 55 days after the UFD Application was discontinued. The combined effect of the UFD Application being wholly discontinued and the period of time that elapsed between that discontinuance and the making of the Second GP Application supports a view that Google was allowed to believe that the matter was finally concluded.

• [108] In the circumstances of this matter, and having regard to the competing positions, I consider this factor is a neutral consideration.

• [109] Google submitted that upon Ms Hardgrove discontinuing the UFD Application, it was entitled to assume that she no longer contested her dismissal and that it could proceed to re-allocate Ms Hardgrove's duties. Google submitted that it will be prejudiced if an extension of time is granted.

• [110] Ms Hardgrove submitted that there will be no prejudice to Google if the extension of time is granted. Ms Hardgrove submitted that despite the information on the notice of discontinuance, Google was on notice that a general protections application or complaint to the Australian Human Rights Commission was being considered.

• [111] Beyond making the bare assertion, Google did not lead any evidence as to how it has dealt with Ms Hardgrove's role or duties since 18 April 2024. Accordingly, Google has not demonstrated how, or to what extent, it will be prejudiced if the extension of time is granted.

• [112] Having said that, it is well accepted that a lengthy delay gives rise to a general presumption of prejudice.[74] In the context of a general protections application, a 159-day delay can only be described as lengthy. If no other application had been made prior to the Second GP Application, I would have found the length of delay as giving rise to a relevant prejudice.

• [113] However, Ms Hardgrove made the UFD Application on the same day as her dismissal and discontinued that matter about 2 weeks prior to the hearing. Those circumstances mitigate against any presumption of prejudice.

• [114] Accordingly, I cannot identify any prejudice that would accrue to Google, if an extension of time were to be granted. Despite that, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.

• [115] The FW Act requires me to take into account the merits of the application in considering whether to grant an extension of time.

• [116] Ms Hardgrove submits that the merits are strong and establish a sound basis for an allegation of conduct constituting unlawful adverse action. Ms Hardgrove submits that after she made complaints to Google and SafeWork NSW, Google engaged in range of prejudicial behaviour towards her. This included making an allegation that she was unwell, directing her to attend an IME, cancelling the job transfer to Google DeepMind, and directing her not to attend work until she had attended an IME.

• [117] Google rejects Ms Hardgrove's contentions and submits the sole reason for her dismissal was Ms Hardgrove's refusal to attend an IME. Google submits that it had genuine concerns for Ms Hardgrove arising from a number of different issues which justify its decision to issue that direction.

• [118] It is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.

s.366(2)(e) - Fairness as between the person and other persons in a similar position

• [119] Ms Hardgrove submitted that this factor is not relevant in this case.

• [120] Google submitted that this factor should weigh against a finding that there are exceptional circumstances having regard to the approach taken by the Commission in other cases.

• [121] As a Full Bench has noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[75]

• [122] There have been a number of cases before the Commission where an applicant has lodged an unfair dismissal application or a general protections application involving dismissal before withdrawing that application and lodging the alternative application. The Commission has generally found that there is nothing unusual about this and, without more, this circumstance is not an acceptable or reasonable explanation for the delay.[76]

• [123] Adopting a position as to fairness between Ms Hardgrove and other persons in a similar position, this factor does not weigh in favour of a conclusion that there are exceptional circumstances.

• [124] Whether to make an unfair dismissal application or a general protections application is a decision many applicants seeking to contest their dismissal encounter each day. In this matter, Ms Hardgrove made two dismissal related applications on the day of her dismissal. The multiple actions provisions set out at ss.725-732 of the FW Act prevent Ms Hardgrove from continuing with both of those applications. Ms Hardgrove received legal advice in relation to both applications and made the forensic decision to pursue the UFD Application. At that stage she was still within 21 days of her dismissal.

• [125] In late June 2024, Ms Hardgrove foreshadowed pursuing the matter in a different jurisdiction and was granted an opportunity by the Commission to seek legal advice. After seeking advice from new lawyers, Ms Hardgrove made another forensic decision to pursue the UFD Application.

• [126] As it turns, Ms Hardgrove later withdrew the UFD Application and commenced the Second GP Application. It is not unusual or exceptional for an applicant choosing to challenge a dismissal by first filing an unfair dismissal application before withdrawing it and filing a general protections application instead.

• [127] However, where a new application is made, any applicable time limit must be complied with unless an extension of time is granted. An extension of time can only be granted if the Commission is satisfied that there are exceptional circumstances having regard to the matters set out in s.366(2) of the FW Act. The test of 'exceptional circumstances' establishes a 'high hurdle'.

• [128] Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by Ms Hardgrove and Google, I am not satisfied that there are exceptional circumstances. In undertaking this evaluative assessment, I have taken into account each of the matters set out in s.366(2)(a) to (e). I have found that these matters weigh against a finding of exceptional circumstances (s.366(2)(a)), do not weigh in favour of a finding of exceptional circumstances (s.366(2)(e)), or are neutral (s.366(2)(b), (c), and (d)).

• [129] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2).

• [130] Accordingly, this application must be dismissed. An order to that effect will be issued with this decision.

S. Marriott, of Australian Industry Group for Google Australia Pty Ltd.

[8] Exhibit A1 at [18], [21] and [23].

[10] Exhibit A1 at [24]; Form F8A, Annexure 6; Transcript at PN360.

[12] Exhibit A1 at [29]; Transcript at PN360.

[13] Exhibit A1 at [37]; Exhibit A2 at [7].

[17] Exhibit A2 at [10]; Exhibit R1 (HB2 at p.11).

[19] Exhibit A2 at [12]; Exhibit R1 (HB2 at p.12).

[20] Exhibit A2 at [13]; Exhibit R1 (HB2 at p.12).

[22] Exhibit A1 at [39]-[40]; Transcript at PN766-PN790.

[24] Exhibit A1 at [41]; Exhibit A2 at [18].

[25] Exhibit A3 (HB2 at pp.175-176); Exhibit R1 (HB2 at p.16).

[27] Exhibit A2 at [20]; Exhibit A3 (HB2 at pp.163-165).

[30] Exhibit A2 at [22]-[24]; Exhibit R1 (HB2 at p.19).

[39] Exhibit A1 at [42]-[43]; Exhibit R1 (HB2 at p.9).

[44] Exhibit A1 at [53]-[54]; Transcript at PN759.

[46] Exhibit A1 at [55]; Transcript at PN757, PN763.

[50] Exhibit A1 at [57]; Transcript at PN713, PN988.

[51] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) at [13].

[53] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[54] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[55] Applicant's Outline of Submissions at [24].

[56] Carlito Cruz v Australia Post Corporation [2008] AIRCFB 452 at [35].

[57] (1997) 74 IR 413.

[58] (1988) 105 IR 1.

[62] Exhibit A1 at [61]; Transcript at PN713-PN715, PN988.

[63] [2021] FWC 4694 at [44]- [51].

[64] [2023] FWCFB 113 at [26]- [28], citing Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285.

[65] [2018] FWCFB 1643.

[69] Weir v HydroChem Pty Ltd [2017] FWCFB 758 at [37].

[71] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[72] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.

[74] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 556_; Brodie-Hanns v MTV Publishing Ltd_ (1995) 67 IR 298 at 299-300; GHD Pty Ltd T/A GHD v Kevin Alan Black [2023] FWCFB 38 at [51].

[75] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41].

[76] See for example, GHD Pty Ltd T/A GHD v Kevin Alan Black [2023] FWCFB 38 at [77-[78]; Karen Tan v Viv May, Lisa Miscamble, Kathryn Baget-Juleff, Wingecarribee Shire Council [2025] FWC 548 at [47]-[48], [57], upheld on appeal in Karen Tan v Wingecarribee Shire Council and Others [2025] FWCFB 88; Catherine Kennedy v Reece Australia Pty Ltd [2023] FWC 1098 at [27]- [28].

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