(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 accepted.

• [8] In this matter, the Applicant was dismissed on 11 April 2025. On 14 April 2025, she acted promptly and instructed her solicitors to file an unfair dismissal application. On 17 April 2025, the Applicant provided relevant documents to her solicitor. On 28 April 2025, the Applicant further conferred with a paralegal employed by the solicitor in respect of her prospective application and provided documents relevant to loss. On 1 May 2025, the paralegal provided the information to the solicitor with carriage of the matter noting that the information was for filing of the application on 2 May 2025. The solicitor did not see that email until 3 May 2025 and the application was filed on that day.

• [9] The Applicant's solicitor submits that a further reason for the delay was that he misread the termination letter as indicating that the dismissal took effect on 14 April 2025 and therefore miscalculated the relevant limitation date. He submits, and I agree, that this error was not the fault of the Applicant.

• [10] Having regard to the prompt action taken by Ms Convery to ensure that the Application was lodged within the 21-day statutory timeframe, and her continued engagement with her solicitor throughout the 21-day period, I find that the reason for the delay weighs in favour of granting an extension of time.

Whether the Applicant became aware of the dismissal after it had taken effect (s.394(3)(b))

• [11] The Respondent states in its Form F3, and the Applicant does not dispute, that Ms Convery became aware of her dismissal during a meeting which took place on 11 April 2025, during which she was advised that she was dismissed effective immediately. Therefore, I find that the Applicant was aware of the dismissal on the day it came into effect. I regard this as a neutral consideration.

Any action taken by the Applicant to dispute the dismissal (s.394(3)(c))

• [12] Neither party made any submissions on this issue. I regard this a neutral consideration.

Prejudice to the employer (s.394(3)(d))

• [13] The Applicant submits that any prejudice to the Respondent is negligible, owing to the fact that the application is only one day out of time. The Application was to be filed by 11:59pm on Friday, 2 May 2025 if it was to be in time. It was in fact filed at 6:30pm on Saturday, 3 May 2025. The Respondent has not made any submissions as to prejudice.

I consider that there is no prejudice to the Respondent due to the very short delay. Whilst "the mere absence of prejudice is not enough to justify the grant of an extension",[4] I consider that, in this case, the absence of prejudice is a factor that tends in favour of granting an extension.

Merits of the application (s.394(3)(e))

• [14] The Applicant submits that the Application has merit. I am unable, in the absence of evidence going to contested issues of fact in this matter, to form a view as to the merit of Ms Convery's application.[5] I regard this as a neutral consideration.

Fairness between persons (s.394(3)(f))

• [15] The Applicant submits that I ought to regard this as a neutral consideration. The Respondent does not make any submission on this point. I regard this as a neutral consideration.

• [16] I have set out my findings relating to each of the factors in s.394(3)(a)-(f) above. Having regard to all of the factors in s.394(3) of the Act, I am satisfied that the grant of an extension of time is appropriate in this case, as I am satisfied that there are exceptional circumstances.

• [17] An Order[6] to this effect will be published alongside this decision. Directions will be made for the further conduct of the matter.

1. [1] [2011] FWAFB 975; (2011) 203 IR 1 at [13].
2. [2] [2007] FCA 388 at [26] cited in ibid.
3. [3] (1998) 105 IR 1, 6.

[4] Jovcic v Coopers Brewery Limited [2023] FCA 797 (Besanko J).

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[6] PR787461.

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