2. The Respondent submits that the Applicant has not provided a credible reason for the delay and says that the Applicant was put on notice that he was not able to proceed with multiple applications on 13 January 2025 when it filed its Form F8A response to the first general protections application noting a jurisdictional objection to that effect. Therefore, the Respondent says that the Applicant should have been aware of the jurisdictional issue in relation to the applications prior to receiving the communication from Deputy President Easton's chambers. In any event, the Respondent submits that a misunderstanding of the law is not an exceptional circumstance and cites multiple authorities in support of this proposition.[13]

[23] In his 17 March submission and at the jurisdictional hearing, the Applicant submitted that his decision to withdraw both applications U2024/15609 and C2024/9339 was based on the assumption that application U2024/15609 was properly made under the Act. The Applicant introduced a new argument on the day of the hearing that application U2024/15609 was never a valid application under the Act and should not have been treated as the "first" claim (for the purposes of the multiple applications provisions in the Act.)

[24] The Applicant's new argument includes a submission that Deputy President Easton "erred" in "determining" that the Applicant's general protections claim C2024/9339 could not proceed on 29 January 2025. The Applicant submits that application C2024/9339 should have been allowed to continue as it was properly made under the Act, whereas U2024/15609 was not properly made as an application fee was not paid and it was not served by the Commission on the Respondent.

[25] The Applicant relies on the decision in Ioannou as authority for the proposition that a second application can proceed where the first application is invalid or withdrawn, and as no fee was paid for application U2024/15609, and it was not served, it does not meet the statutory requirements of a valid application.

[26] The Applicant submits that in the case of the second application C2024/9339 a fee was paid, and documents were served on the Respondent fulfilling all procedural requirements. The Applicant also relies on the decision in Lopez v Transport for NSW[14] to submit the Commission has consistently ruled that only valid applications can be considered under s.725 of the Act.

[27] The Applicant submitted in the case of Benissa v Minister for Immigration and Border Protection[15] it was found non-payment of the prescribed fee, results in an application not being properly made.

[28] In summary, the Applicant submitted application C2024/9339 was filed within time, was the only valid claim and was incorrectly withdrawn based on the Commission's guidance. He submitted that had he not followed Commission guidance, this claim could have proceeded.

[29] The Respondent refers to a decision of Vice President Lawler in Druett v State Rail Authority of NSW[16] where he said in relation to an application for relief against termination of employment that "the better view is that an application for relief against termination of employment, although filed, is not a valid application unless and until the filing fee has been paid or a waiver granted by the Registrar. Obviously an applicant should be given a reasonable opportunity to apply for a waiver if he or she is unable to afford the filing fee before any action is taken to dismiss an application on this basis."

[30] The Respondent submits that although the Vice President used the word "invalid" in the context of the application without the payment of a fee, he did not mean that it was "invalid" from the date at which it was lodged. He did not mean that it should be treated as if that application did not exist, and this is clear from the fact that he held that time may pass while the Applicant was given the opportunity to pay. The Respondent submitted this is clear from the fact that there was a requirement for the application to be dismissed, which he subsequently did, and if an application was invalid from the moment it was lodged without a fee, there would be no need for it to be dismissed and as it would simply not exist at all.

[31] The Respondent refers to the decision in Bonnar v Rail Industry Safety & Standards Board,[17] where the question of when an application became valid was considered, and Deputy President Dean held and noted:

"i. The word "accompanied' can be defined as "at the same time as", it can also mean to complement or be in addition to something, or to go along with. In the context of s.395, I consider that 'accompanied' should be interpreted to mean that the fee is 'to complement' the application or be made 'in addition to' the application. It does not require that the fee be paid at precisely the same time as the application."

ii. "While the application was not 'accompanied' by the prescribed fee at the time of lodgment, when considered in the context of the overall statutory scheme; particularly in light of subrule 9(4), it would appear there is no such express temporal requirement."

[32] The Respondent submits that Deputy President Dean also noted that the Fair Work Rules set out the circumstances in which an application shall be taken to have been lodged. Mr Dagger lodged U2024/15609 using the Commission's online lodgment facilities. Rule 17 reads:

"Lodging documents using the FWC's online lodgment facilities

(1) A person may lodge a document that is required or permitted to be lodged with the FWC under these Rules using the FWC's online lodgment facilities in accordance with the instructions provided by the FWC for the use of those facilities.

Note: In 2024, the FWC's online lodgment facilities (which include instructions for their use) were available on the FWC's website (http://www.fwc.gov.au).

(2) If a document lodged in accordance with this rule is an application commencing a matter:

• (a) the General Manager must send an acknowledgment of lodgment, by email, to the person lodging the document; and

• (b) the application is not taken to have been lodged until the acknowledgment of lodgment has been sent; and

• (c) once the acknowledgment of lodgment has been sent, the application is taken to have been lodged at the time it was received electronically by the FWC."

[33] The Respondent noted in its submission that an acknowledgement as described in sub rule (2) was sent to Mr Dagger and the Respondent and the original U2024/15609 application was therefore lodged and a valid application. The non-payment of the fee made U2024/15609 susceptible to being dismissed at some point, but it did not make U2024/15609 "invalid" or non-existent.

[34] The Respondent submits that the failure to pay the application fee at the time of lodgement of the claim is not in itself a failure for want of jurisdiction. Jurisdiction was available if the fee had been paid, or a waiver of the fee had been applied for and granted. The operation of s.725(b)(ii) is that the first application must have "failed" - not that it must be susceptible to failure. In the present case, Mr Dagger made an election to withdraw C2024/9339 and U2024/15609, thereby removing any possibility that either of them could subsequently fail for want of jurisdiction.

[35] The Respondent referred to a decision in Morris v The Marlin Hotel Group (t/as The Oxford Hotel)[18] (Morris) in which the Full Court of the South Australian Industrial Relations Court said the following, describing the decision of Ballard v Greens General Foods Pty Ltd[19]:

"[16] The case is authority for the following. Firstly, if the proceedings under s 105 fail because the applicant is out of time in instituting the proceedings, (at that time 14 days), the proceedings "fail for want of jurisdiction" within the meaning of that expression in s 105(3). Secondly, failure within the meaning of subs (3)(b) requires something more than mere want of success. Leave to discontinue is not enough. Nor is it possible in the circumstances to interpret the Commission's leave to discontinue as a silent pronouncement by the Commission on the subject of its jurisdiction to entertain the plaintiff's application. Some appropriate action or statement by the Commission bringing the proceedings to an end for the reason that the Commission is not satisfied that it has power to hear them, is necessary to constitute a failure within the meaning of subs (3)."

[36] The Respondent submits Deputy President Easton's letter to the Applicant in relation to the original general protections claim C2024/9339 was not "guidance" and it was not a "determination" as the Applicant submits. It submits that it was instead a statement of a provisional view of the position and an invitation to Mr Dagger either to make submissions should he choose to do so, or to withdraw his claims. The Respondent submits that Deputy President Easton's letter was accurate.

[37] The Respondent submits it was open to the Applicant to submit to Deputy President Easton that he had not paid the application fee on U2024/15609 and that it should therefore be dismissed and the claim C2024/9339 should continue. However, he did not do so and instead withdrew the applications.

[38] The Respondent submits that the circumstances described in Morris are analogous to Mr Dagger's case, and "Leave to Discontinue" is analogous to Deputy President Easton forming a "provisional view" and should not be seen as a pronouncement by the Commission about its jurisdiction to entertain U2024/15609. Mr Dagger subsequently elected to withdraw both original claims which brought them to an end and neither of them can be re-initiated because there is no legislative power for the Commission to do that.

[39] The Respondent submits that the Applicant relies on Benissa v Minister for Immigration and Border Protection,[20] however the facts in Benissa can be distinguished from the facts in both this case and the case in Morris. The Respondent says in Benissa the applicant had been notified of the requirement to pay a fee within a period of time and failed to pay the fee, as a result of which a determination was made that there was no jurisdiction to continue to hear the matter and the case was dismissed (see paragraph [7]). In that case, the application failed for want of jurisdiction, it was not, as in Mr Dagger's case, susceptible to fail. The fact that it was susceptible to fail for want of jurisdiction does not make the application invalid or non-existent.

[40] The Respondent submitted that an easy reading of the Commission website and forms would disclose that the Applicant could not run two cases at the same time, and the actual Form F8 which the Applicant completed contains a statement saying as much. In conclusion, there is no good reason for the Applicant to have missed that information.

[41] The Respondent also submits there continues to be no explanation for the delay between 13 January 2025 and 12 February 2025. The Respondent referred to a recent decision in Rosario Grau Baena v Vistage Australia Pty Ltd, Nell Cleary[21] where ultimately the Applicant's medical condition supported by medical evidence resulted in the granting of a 2-day extension. It said, in contrast Mr Dagger has not brought evidence of a medical condition in circumstances where the delay is considerably longer.

[42] The Respondent submits that Mr Dagger was alerted in the Respondent's Form F8A filed in response to C2024/9339 to the multiple application issue and should have immediately then taken steps to withdraw U2024/15609 and C2024/9339 and filed his new general protections claim.

[43] I reject the Applicant's submission that U2024/15609 was invalid as referred to in the decision in Ioannou, and application C2024/9339 could have proceeded and did not need to be withdrawn. I agree with the Respondent's submissions that application U2024/15609 was not "invalid" in the sense referred to in Ioannou, and it was open for Mr Dagger to make an application that U2024/15609 be dismissed because he did not pay the fee. But he did not do so.

[44] I also agree with the Respondent's submission that Deputy President Easton did not provide guidance or make a determination or direct a particular course of action as claimed by the Applicant, and instead merely invited the Applicant to consider his best course of action having regard to Ioannou. As was pointed out by the Respondent, there is information on the Commission website and on the application forms themselves in relation to multiple applications. These matters do not give rise to exceptional circumstances.

[45] I am not satisfied that the Applicant has provided an adequate explanation for the delay in the period between 13 January 2025 and 29 January 2025. This is especially so when he had been put on notice by the Respondent that it was raising a jurisdictional objection to his having filed multiple applications on 13 January 2025, but he did not take any remedial action.

[46] I am also not satisfied that the Applicant has provided a satisfactory explanation for the reason for his delay in the period between 29 January 2025 and 5 February 2025. Deputy President Easton had put the Applicant on clear notice about his difficulty on 29 January 2025, and whilst he withdrew U2024/15609 and C2024/9339 that same day, he did not file his second general protections application for another 6 days.

[47] These conclusions regarding the reason for the delay do not favour extending time.

[48] The Applicant did file both an unfair dismissal application and a general protections application within time. The Respondent submits that Mr Dagger advised Ms Xu following the investigation outcome that he wished to have the investigation process reviewed by 'Fair Work' but that he took no other steps to dispute the dismissal before lodging the first general protections claim and the unfair dismissal claim on 23 December 2024.

[49] The fact that the Applicant filed two applications inside the statutory time limit favours extending time.

1. The Applicant submits that there has been minimal prejudice to the Respondent as a result of the delay, as the Respondent was put on notice of the allegations against it in Mr Dagger's initial unfair dismissal claim, which was filed within the 21-day statutory timeframe. He submits further that the Respondent was notified of his decision to discontinue his prior applications and lodge the present application on 5 February 2025, very shortly after he received communication from Deputy President Easton's chambers. In these circumstances, he says, the Respondent is 'not unfairly disadvantaged by a short delay'.[22]

[51] The Respondent submits that it has been prejudiced insofar as it has been required to respond to multiple applications. It further submits that the delay presents the possibility that the Respondent will lose access to material witnesses or that those witnesses might suffer lapses in memory as a result of the delay.

[52] I consider this to be a neutral factor.

1. The Applicant submits that his dismissal was 'retaliatory' and therefore that the substantive merits of his case weigh in favour of the grant of an extension of time.[23] He says that he has been subject to adverse action by the Respondent (being the termination of his employment) on the basis that he exercised his workplace right to make a complaint or enquiry in relation to the 15 October incident.

[54] The Respondent submits that it is very likely that it would be able to establish on the balance of probabilities that the reason for the Applicant's termination was not related to the alleged exercise of a workplace right, having regard to the evidence of Ms Akmacic in her witness statement as well as the fact that the Applicant was still within his probation period at the time of the dismissal.

[55] I consider this a neutral factor.

Fairness as between the Applicant and other persons in a like position

1. The Applicant has made no submissions as to fairness between himself and other persons in a like position. The Respondent points to two recent cases in which the Commission has refused an extension of time on the basis of an error or misunderstanding by the Applicant: Maina v Rio Tinto Aluminium Limited[24] and Gibbons v Advan Pty Ltd.[25] It submits that fairness weighs against the grant of an extension of time in this case.

[58] I have weighed each of the matters I am required to consider and have determined that while the Applicant did make multiple applications within time, he withdrew them and then allowed a further period of delay despite having been made aware of this issue as early as 13 January 2025. The circumstances viewed overall, are not exceptional circumstances justifying an extension of time of 42 days. On that basis the application is dismissed.

[59]

An order dismissing the application will be issued separately and concurrently with this decision.

1. [1] Email regarding Investigation of Workplace Incident dated 30 October 2025, Digital Court Book p. 94.
2. [2] Ibid.
3. [3] Email regarding Invitation to attend Workplace Discussion on 3 December 2024 dated 28 November 2024, Digital Court Book p. 149-150; Witness Statement of Marija Akmacic at [10].
4. [4] Ibid at [11].
5. [5] Annexure D to Witness Statement of Marija Akmacic.
6. [6] [2014] FWCFB 6660.
7. [7] [2011] FWAFB 975; (2011) 203 IR 1, 6 [15].
8. [8] Ibid 5 [13].
9. [9] Ibid 5-6 [13].
10. [10] [2018] FWCFB 901; (2018) 273 IR 156, 165 [38].
11. [11] Applicant's Outline of Submissions, Digital Court Book p. 51.
12. [12] Ibid.
13. [13] Respondent's Outline of Submissions, Digital Court Book p. 176 [18] citing at Nulty; Rose v BMD Constructions Pty Ltd [2011] FWA 673; Reihana v Mastercare Highrise Cleaning Services Pty Ltd [2013] FWCFB 4960 affirmed in Reihana v Mastercare Highrise Cleaning Services Pty Ltd [2014] FCA 353; Dodd v ABN Group (Vic) Pty Ltd T/A ABN Group [2018] FWC 6750; Gibbons v Advan Pty Ltd [2023] FWC 667 ('Gibbons').

[14] [2022] FWCFB 47.

[15] [2016] FCA 76.

[16] [2007] AIRC 805.

[17] [2018] FWC 2151.

[18] [2001] SAIRC 34.

[19] (unreported) Full Supreme Court [1998] SASC 6590 (20 March 1998).

[20] [2016] FCA 76.

[21] [2025] FWC 556.

1. [22] Applicant's Outline of Submissions, Digital Court Book p. 51.
2. [23] Ibid, Digital Court Book p. 52.
3. [24] [2024] FWC 3350 (Simpson C) where the applicant filed both an unfair dismissal and a general protections application and discontinued both matters to lodge a fresh general protections application which was out of time.
4. [25] Gibbons above n13 where an applicant had immediately lodged a general protections application involving dismissal upon being told by the Commission that she may not meet the minimum employment period.

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