(collectively, other Jurisdictional Objections).

• [6] In order for Ms Tan's application to be accepted by the Commission I will need to consider whether exceptional circumstances exist under s.366(2) of the Act that would warrant Ms Tan being granted further time to file her application.

Iterations of the Application, Interlocutory Matters and Hearing

• [7] On 10 July 2024, Ms Tan filed an application pursuant to s.365 of the Act. The 'Respondent' field in the Application as originally filed was as follows (as described):

Lisa Miscamble, General Manager, Wingecarribee Shire Council + Kathryn Baget-Juleff, Manager Community Life and Libraries, Wingecarribee Shire Council + Wingecarribee Shire Council ("collective group" and "multiple decision makers").

• [8] On 23 July 2024 Ms Tan filed a Form F1 seeking to amend her application, accompanied by an amended Form F8 application. The 'Respondent' field in the Application was revised as follows:

Viv May, Administrator, Wingecarribee Shire Council + 2. Lisa Miscamble, General Manager, Wingecarribee Shire Council + 3. Kathryn Baget-Juleff, Manager Community, Life and Libraries, Wingecarribee Shire Council + Wingecarribee Shire Council (entity)

• [9] The Form F1 and amended Form F8 filed by Ms Tan provided separate contact information for Wingecarribee and the Individual Respondents respectively. This version of the application also contained submissions as to the application being filed out of time and removed some of the breaches of the Act that had been relied upon in the application filed on 10 July 2024.[3] This is the version of the application that was proceeded on at hearing. By way of subsequent emails to the Commission sent on 1 August 2024 and a further Form F1 filed on 2 August 2024 Ms Tan sought to ensure that all four Respondents were named separately and that they were named in the following order: Mr May, Ms Miscamble, Ms Baget-Juleff, and Wingecarribee. The Commission amended its records to give effect to this F1.

• [10] On 27 September 2024, Ms Tan made an application to the Commission for orders requiring that Mr May, Ms Miscamble and Ms Baget-Juleff give evidence before the Commission and be cross-examined. On 1 October 2024, I conducted a hearing regarding Ms Tan's application for orders. Having heard submissions from Ms Tan and the Respondents, I determined not to make orders requiring the attendance of the Individual Respondents for reasons including the interlocutory nature of my consideration given the confined nature of the jurisdictional issues to be determined at this stage of the proceedings. My decision and the reasons for that decision were communicated to the parties on 2 October 2024.

• [11] On 30 September 2024 following receipt and consideration of submissions from both parties, I determined to grant permission to the Respondents to be represented and provided reasons in writing via email.

• [12] On 3 October 2024, I conducted a hearing in relation to Ms Tan's application for an extension of time. Ms Tan relied on numerous documents, filed three statements including her own and gave evidence at the hearing. The Respondents relied on a statement of Ms Danielle Lidgard, Manager Governance and Corporate Performance at Wingecarribee. Ms Lidgard was not required for cross-examination. All parties made submissions on the extension of time application.

The Earlier Proceedings - General Protections and Unlawful Termination Applications

• [13] In the application filed on 10 July 2024 Ms Tan indicated that the application had not been made within 21 days after her employment was terminated. In the body of the application, Ms Tan submitted that the application 'was originally made on time' but had been discontinued. At the hearing of this matter, and also by way of her submissions, Ms Tan argued that although her application had been filed more than 21 days after her employment had been terminated, an earlier General Protections application which had been made in time and subsequently discontinued meant that the application before me was made within time.

• [14] The history of Ms Tan's applications seeking to challenge her dismissal can be summarised as follows:

(a) On or about 30 April 2024 Ms Tan filed her first application under s.365 of the Act (First GP Application) alleging that her employment had been terminated in contravention of Part 3-1 of the Act. The First GP Application only named Wingecarribee as a Respondent.

(b) On 9 May 2024, the Commission notified Wingecarribee that Ms Tan had filed a General Protections claim against Wingecarribee. The Commission did not serve the First GP Application at that time.

(c) On 10 May 2024, solicitors for Wingecarribee filed a Form F53 seeking permission for Wingecarribee to be represented in future hearings or conferences concerning the First GP Application, including in determining 'whether a valid application had been made within jurisdiction, and any subsequent conferences or interlocutory process'. Wingecarribee did not file any other forms, replies or material in relation to the First GP Application.

• (d) On or around 14 May 2024 Ms Tan filed two applications seeking to amend the First GP Application. The first of these sought to change the Respondents to the application from 'Wingecarribee Shire Council' to 'Ms Lisa Miscamble' and 'Ms Kathryn Baget-Juleff', who are two of the three Individual Respondents in these proceedings. The second application was to amend the First GP Application to change its legal character to an application to deal with an unlawful termination dispute under s.772 of the Act. The Commission did not serve Wingecarribee, Ms Miscamble and Ms Baget-Juleff with the amending forms filed on 14 May 2024 nor with the original application. Ms Tan sent a copy of the First GP Application and its annexures to Ms Miscamble on 14 May 2024.[4]

• (e) On 16 May 2024, the Respondents served Ms Tan with a copy of the Form F53 by email.[5]

(f) Ms Tan filed a discontinuance of the First GP Application on or around 16 May 2024.

(g) On or around 16 May 2024 Ms Tan filed an application under s.773 of the Act (Unlawful Termination Application) alleging that her employment had been terminated in contravention of s.772(1) of the Act. The Unlawful Termination Application named only Ms Miscamble and Ms Baget-Juleff as Respondents.

(h) Various jurisdictional objections were made to the Unlawful Termination Application including that it had been filed out of time.

(i) Ms Tan and the Respondents filed evidence and submissions in accordance with a timetable set by Deputy President Roberts.

• (j) The matter was listed for hearing on 17 June 2024 before Deputy President Roberts to determine whether to accept the Unlawful Termination Application out of time.[6] At the commencement of the hearing on 17 June 2024 Ms Tan sought to amend the Unlawful Termination Application to add Wingecarribee as a third Respondent. The Deputy President granted the application to amend.

(k) On 2 July 2024, Deputy President Roberts handed down a decision dismissing the Unlawful Termination Application on the grounds that he was not satisfied that there were exceptional circumstances to warrant an extension of time.

• [15] Section 366(1) of the Act states that a General Protections application involving a dismissal must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s.366(2).

• [16] The First GP Application was made in time. To the extent that it is argued that the First GP Application is the same application that is before me in these proceedings and was accordingly made within time - I reject that argument for the following reasons.

• [17] Firstly, the two applications were commenced against different Respondents. The First GP Application, as filed, was against Wingecarribee only. Ms Tan filed a Form F1 on 14 May 2024 which sought to change the application to an unlawful termination application and change the Respondents to the application by removing Wingecarribee and adding Ms Miscamble and Ms Baget-Juleff.[7] This amendment was not granted by the Commission. By contrast, the Application before me has three Individual Respondents in addition to Wingecarribee.

• [18] Secondly, the two applications have slightly different grounds, reasons, and remedies sought.[8] Thirdly, the application that was ultimately pressed before me at hearing had some identical breaches of the Act claimed but did not tick the relevant boxes alleging breaches of sections 343, 345, 346 and 351 (unlike the First GP Application).

• [19] Even if I am wrong on this, Ms Tan discontinued the First GP Application. At the hearing before me Ms Tan made submissions to the effect that she discontinued the application as a result of a line in the Respondents' F53 to the effect that the Respondents would be raising a jurisdictional objection to the application.[9]

• [20] Ms Tan appeared to submit that the Respondents were to blame for her discontinuing the First GP Application. At the time that Ms Tan discontinued the First GP Application the Respondents had not filed a formal response. It had done no more than file a form advising the Commission that it sought to be legally represented and intimated that there might be a jurisdictional objection to the application. That Ms Tan chose to discontinue the application and commence the Unlawful Termination Application was a matter for her. At the hearing in front of me Ms Tan also gave evidence[10] and made submissions that the discontinuance was a forensic or considered decision.[11] I accept that evidence and those submissions. The legal representatives for the Respondents did not owe Ms Tan any obligation to provide her advice. They were entitled to file their F53 and would have been entitled to raise any valid jurisdictional objections. I find that Ms Tan was not forced to discontinue the First GP Application.

• [21] Once filed, a notice of discontinuance is self-executing and brings the application to which it relates to an end.[12] Ms Tan's submissions on the role of Wingecarribee's legal representatives and the effect on the legal status of her discontinuance are not entirely clear. To the extent that Ms Tan submits that the actions of Wingecarribee's solicitors in filing the F53 could constitute some sort of duress,[13] then the proper course is for her to make an application to a court to have the discontinuance set aside. The Commission does not have any power to set aside the notice of discontinuance.[14]

• [22] In Narayan v MW Engineers Pty Ltd[15] it was held that the discontinuance of an unfair dismissal application (absent settlement) would not prevent a second unfair dismissal application being made in relation to the same dismissal. But, it was held that the second application still needed to be made within the statutory time limit or within such further period as the Commission allows.[16] Such is the case in this matter.

• [23] Given my findings in the preceding paragraphs, I find that there is no extant proceeding which could be relied on as constituting an application made within time. I consider that the filing of the First GP Application does not mean that the application before me was made within the 21-day statutory timeframe for filing.

• [24] Accordingly, Ms Tan's application can only proceed before the Commission if I form a view that there are exceptional circumstances that would warrant the exercise of discretion to extend the time period for the filing of this application.

• [25] Ms Tan accepts that her employment with Wingecarribee ended on 12 April 2024. The statutory period for the filing of an application ended at midnight on 3 May 2024.[17] Ms Tan lodged the Application in the Commission on 10 July 2024. The application was therefore filed 68 days outside the 21-day period stipulated by s.366(1) of the Act.

• [26] In circumstances where multiple jurisdictional objections are on foot including an extension of time application, I am required to deal with the extension of time application first.[18]

• [27] The Act describes the circumstances in which the Commission may grant an extension of time in s.366(2) as follows:

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

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

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

• [28] 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.[19] 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[20].

• [29] The requirement that these matters be taken into account means that I must consider each matter and give it appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters.

• [30] The Commission must consider any delay in filing being the period commencing immediately after the 21-day period specified in s.366(1) until 10 July 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[21] The reason for the delay is not, in and of itself, required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[22] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Ms Tan has not provided any reason for any part of the delay.[23]

• [31] Ms Tan's evidence in these proceedings largely focussed on the events leading up to her dismissal rather than the reason for any delay in filing the Application.[24] However, Ms Tan gave a number of reasons by way of explanation of the delay. These included submissions regarding the overall delay in the period between the date of her termination on 12 April 2024 and the date of the filing of her application on 10 July 2024, but also addressed the delay between the publication of Deputy President Roberts' decision on 2 July 2024, and the filing of the Application on 10 July 2024. Ms Tan was cross-examined regarding her decision to file an amended application on 23 July 2024 and the reasons for the delay in filing same.

• [32] Ms Tan's evidence as to the overall delay went to the difficulties in navigating the Fair Work Commission's processes and procedures as a self-represented litigant, as well as the serious ill health of her dog and ongoing issues with her car. In relation to the delay between Deputy President Robert's decision and the filing of her 10 July 2024 application, Ms Tan's F8 claimed that she had not been provided with the decision by the Deputy President's Chambers on 2 July 2024 when it was published. At hearing, Ms Tan gave evidence that she read the decision on 5 July 2024. She gave evidence that the reason for the delay between the publication of the decision and the filing of the application on 10 July was due to her being unavailable to review the findings of Deputy President Roberts as she was having her car repaired, was not at her computer at the time, was working, and had been conducting her own research without the assistance of a lawyer. Ms Tan gave evidence that the reason for the delay between filing the 10 July 2024 application and filing the amended application was due to having received legal advice from the Fair Work Commission's Workplace Advice Service following her original lodgement, which resulted in the amended application filed on 23 July 2024.

• [33] The submissions of Ms Tan and the Respondents were largely the same in these proceedings as they were before Deputy President Roberts in the Unlawful Termination Application proceedings.

• [34] Ms Tan argued before Deputy President Roberts that the First GP Application was made in time but that she had inadvertently used a Form F8 and so initiated the First GP Application rather than an unlawful termination application, which had been her intention.[25] Deputy President Roberts, in his decision, records Ms Tan's evidence that it was unclear to her that a Form F8 could not be used in circumstances where the employer was a local council.[26] Ms Tan submitted that Wingecarribee having been in administration at the relevant time put its status in a 'grey area'. Further, Ms Tan submitted that there had been a delay in accepting her filing fee because of a backlog of applications at the Commission, that she had sought legal information that was not forthcoming, and that she tried to navigate the process swiftly and get the matter underway.

• [35] Further, in the proceedings before Deputy President Roberts, Ms Tan referred to and relied on what she said was the Commission's denial of her Form F1 request to amend the General Protections application to an unlawful termination application. Ms Tan said that as she had been terminated without notice, she lacked access to relevant evidence at the time and required additional time to file her application.

• [36] In summary, Ms Tan made submissions before me that:

(a) A fresh application concerning the same set of facts under different statutory provisions of the Act is still subject to the relevant time limit i.e. the first application being in time does not mean that the second application is necessarily made in time - but the Commission has discretion to accept the second application;

(b) The current application was part of a continuum from termination, through the First GP Application and the Unlawful Termination Application and should be considered to be one ongoing application not three separate ones;

(c) On 10 July 2024, after Deputy President Roberts handed down his decision on 2 July 2024, Ms Tan had immediately re-lodged the Application to avoid further delay;

• (d) The Commission's administrative processes were slow[27] including further delay being caused by engaging with the Commission's Workplace Advice Service and dealing with Commission staff regarding amending the Respondents on the Application on 22 June 2024[28] (noting that it appears from its context that the reference to 22 June 2024 was likely intended to be to 22 July 2024);

(e) That the delay was partly attributable to the Respondents and their legal representatives raising 'dishonest' jurisdictional objections in both the First GP Application and the Unlawful Termination Application which led to the discontinuance of the First GP Application; and

(f) Delays arising from having to navigate a complex legal system and the uneven playing field caused by legal expertise being 'afforded to some but not others'.

• [37] In the proceedings before me Ms Tan gave evidence that this application was a continuation of, or the same application as, the First GP Application,[29] and that if not for the Respondents' jurisdictional objection to the First GP Application, she would have maintained that application, and that the effect of making this application put her dispute 'back in the right forum', as she had intended by way of her original lodgement.[30] Ms Tan submitted that her first application had always been in the correct jurisdiction and that the application before me was the one she had intended to make.[31]

• [38] Ms Tan relied upon a number of authorities in support of an extension of time. These include Palmer v RCR Engineering Pty Ltd[32] (Palmer) and Poulton v Rail Infrastructure Corporation[33] (Poulton) which both concerned erroneous filings in state jurisdictions and the acceptance of subsequent applications filed out-of-time in the Commission. Ms Tan also relied upon Lane v Kangaroo Island Dive & Adventures Pty Ltd[34] (Lane), which concerned the filing of an application under s.773 of the Act and a subsequent General Protections application. She also relied upon_-Hernandez v Duty Free Stores Gold Coast Pty Ltd_ (No. 2)[35] and McEvoy v Acorn Stairlifts Pty Ltd.[36] Ms Tan also appeared to rely on Hedger v. Trustee for Perrott Trust t/a Perrott Engineering Pty Ltd[37] (Hedger) as to the relevance of a genuine and reasonable belief by an applicant that the application has been made in explaining any period of delay in filing that application.

• [39] The Respondents in these proceedings largely adopted their submissions made before Deputy President Roberts. However, they also made submissions that I should not accept some of the submissions made by Ms Tan as they were inconsistent with Ms Tan's representations during the proceedings[38] before Deputy President Roberts. Those representations were that she had filed a Form F8 by mistake and had always meant to commence proceedings using a Form F9 under Chapter 6 Part 6-4 of the Act. The Respondents contended that Ms Tan's representations in these proceedings that she had always intended to file an application alleging breaches of the General Protections provisions of the Act and that her application was made within time were disingenuous and had caused the Commission's processes to be unduly delayed.

• [40] The Respondents also submit that Ms Tan has not explained her 8-day delay from the handing down of the decision of Deputy President Roberts on 2 July 2024 and has mischaracterised her amended 10 July Application as being "immediately re-lodged". It also says that Ms Tan's reliance on external advice provided on 23 July 2024 and communications from the Commission on the same day did not provide an adequate explanation for the delay.

• [41] The Respondents contend that Ms Tan is an experienced self-represented litigant and should be familiar with applicable time limits and Commission procedures. It also says that Ms Tan's submission about the uneven playing field appears to be that she is entitled to special treatment as a self-represented litigant. The Respondents in response say that it is axiomatic that the Commission has an overriding duty to ensure a fair trial for all parties, not just the unrepresented litigant. The Respondents' overriding submission is that Ms Tan's further delays raise no exceptional circumstances warranting a different outcome than that determined by Deputy President Roberts.

• [42] The Respondents contend that Ms Tan's evidence does not disclose any factual circumstances for delay let alone exceptional ones. They submit that this weighs heavily against Ms Tan.

• [43] Finally, the Respondents submit that:

(a) The application for an extension of time has already been heard and determined by Deputy President Roberts in reliance upon various documents and submissions;

(b) The reagitating of these issues is an abuse of process;

(c) No new exceptional circumstances have been identified that would warrant the grant of an extension;

(d) Ms Tan misunderstands the Commission's role as Ms Tan's application had to be made within 21 days and can only be accepted after this time if the Commission is satisfied that there are exceptional circumstances sufficient to allow Ms Tan a greater period of time to file;

(e) Filing the wrong application due to a lack of awareness or ignorance is not exceptional;

(f) Ms Tan made a forensic decision to withdraw the First GP Application and unsuccessfully brought the Unlawful Termination application;

(g) Ms Tan is in no different a situation than any other applicant in navigating Commission processes and was an experienced litigant in the Commission;

(h) That the duration of the delay is relevant to the Commission's consideration, contrary to Ms Tan's submission; and

(i) That Ms Tan has not explained the delay affecting the filing of the Application, nor the delay between filing versions of the Application.

• [44] A large part of the delay in Ms Tan filing her application can be attributed to the various avenues that she pursued in disputing her dismissal. As outlined above, Ms Tan made the First GP Application within the statutory timeframe. She then discontinued those proceedings and commenced the Unlawful Termination Application. When she was unsuccessful in obtaining an extension of time to file that application Ms Tan filed this application.

• [45] Ms Tan's evidence and submissions on whether she intended to file an unlawful termination when she filed the First GP Application have vacillated. In front of Deputy President Roberts Ms Tan contended that she intended to file an unlawful termination application when she filed the First GP Application. In these proceedings Ms Tan has asserted that she intended to file a General Protections application rather than an unlawful termination application. Ms Tan gave evidence that the decision to discontinue the First GP Application and proceed with an unlawful termination application was a considered one based on research she conducted and her understanding of the implications of the jurisdictional objection alluded to in the Respondents' Form F53.[39] Also, Ms Tan made submissions at hearing to the effect that this decision was a forensic, considered one and made in the best interests of her case.[40]

• [46] Having had regard to the First GP Application and the evidence of Ms Tan I consider that she did intend to file an application alleging breaches of the provisions of Part 3-1 of the Act. She made a forensic decision to discontinue that application following receipt of the Respondents' F53. The F53 did no more than notify the Commission that the Respondents would seek to be represented including 'in relation to any jurisdictional objection'. I do not accept the submission of Ms Tan that the delay in filing these proceedings was partly attributable to the Respondents and their legal representatives raising 'dishonest' jurisdictional objections in the First GP Application (leading to its discontinuance) and the Unlawful Termination Application. The Respondents did not file any jurisdictional objection in the First GP Application. The jurisdictional objections that were made in response to the Unlawful Termination Application gave rise, in part, to a finding by Deputy President Roberts that Ms Tan's case on the merits was weak and a decision to refuse to extend time to file that application.

• [47] In this case, the delay in commencing the application before me was due to a belated realisation by Ms Tan that the First GP Application had some significant jurisdictional objections to be overcome and her decision, right or wrong, to deviate to the Unlawful Termination Application out of time and then reagitate a breach of Part 3-1 of the Act when that failed. Whilst it is understandable that Ms Tan would make these decisions, the decisions, are not, of themselves, exceptional.

• [48] A fresh application concerning the same set of facts is still subject to the relevant time limit. I accept that the current application was part of a continuum of disputation following Ms Tan's termination, through the First GP Application and the Unlawful Termination Application. However, I must consider the delay in filing the application before me.

• [49] I have considered the authorities relied upon by Ms Tan. Firstly, I would observe that several of the cases relied upon by Ms Tan are decisions of single members of the Commission and I am not bound to follow decisions of single members. In any event, I consider that these cases are distinct from Ms Tan's circumstances given the comparatively short length of the delays considered in Palmer and Lane and the prompt action taken by the applicants to correct their applications (either by filing in the correct jurisdiction, or by filing the correct application) once their mistake became known to them. By contrast, Ms Tan's application was filed 68 days out of time, in circumstances where she did not file any similar applications in the state jurisdiction or file an alternative application by mistake. She was aware of the 21-day time limit at the time of filing. In circumstances where there is a genuine question as to whether or not Wingecarribee is covered by the Act and given that Ms Tan withdrew the First GP Application when she became aware of this jurisdictional question, I consider that these cases are not analogous to the circumstances of Ms Tan's application. Further, I do not consider that Ms Tan filed her applications by mistake. Rather, I consider that Ms Tan made a considered decision to commence the First GP Application and then commenced the Unlawful Termination Application after considering which application would best suit her circumstances, and only after the Respondents filed a Form F53 which intimated that they might intend to challenge the General Protections application on the basis of jurisdiction.

• [50] In Hedger, the Full Bench said that a genuine and reasonable belief by an applicant that the application has been made is relevant to explaining any period of delay. Ms Tan identified her reliance on Hedger by including extracts of a paragraph referring to it in Deputy President Roberts' decision, at [24]. Ms Tan's submissions do not include the complete paragraph, where Deputy President Roberts identifies the bases on which this case can be distinguished (and whose reasoning I respectfully adopt, having considered the material before the Commission and the submissions of the parties):

The applicant regarded, and appears to continue to regard, the two causes of action as interchangeable when they clearly are not. It may be accepted that difficulties can arise for an unrepresented person navigating some of the requirements of the Act, including in some circumstances, determining the appropriate cause of action. In Hedger v. Trustee for Perrott Trust t/a Perrott Engineering Pty Ltd, the Full Bench said that a genuine and reasonable belief by an applicant that the application has been made is relevant to explaining any period of delay between the attempt and the lodgement of material that is sufficient to constitute an application being made. In making that assessment I think it is necessary to take into account that the two proceedings were of a different kind and were commenced against different respondents. This weighs against a conclusion that it was reasonable to believe that the ultimate application had been made. On the other hand, I acknowledge that the coverage provisions of the Act can present challenges for local government employees. I also take into account the fact that the applicant was aware that there were time limitations in place. She said she was in contact with the Commission about those limits, but she was apparently content to continue with her first application until she came to a view that it should be discontinued. By that time, the second application was well out of time.[41]

• [51] Ms Tan was aware of the relevant time limit to file a General Protections claim. She intentionally filed such a claim, then discontinued it then commenced an alternative claim, which was not accepted by the Commission. She then proceeded to file the application which is currently before me.

• [[52] Ms Tan's reliance on the following authorities is not of apparent relevance to the matters I am to consider, for the following reasons:]([52] Ms Tan's reliance on the following authorities is not of apparent relevance to the matters I am to consider, for the following reasons:)

• (a) Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd (No. 2),[42] noting that the case citation extracted in Ms Tan's submissions refers to the penalty decision in relation to the substantive proceedings[43] and its relevance to her case is not further identified in her submissions. However, it appears that Ms Tan relied on this authority in the proceedings before Deputy President Roberts in relation to the question of dismissal during a probationary period, in circumstances where the Court found that the dismissal was for a reason prohibited by the General Protections provisions of the Act. To the extent that it is relevant I accept that a dismissal of an employee during their probation can, in certain circumstances, constitute adverse action.

• (b) McEvoy v Acorn Stairlifts Pty Ltd,[44] which concerned a claim for unlawful termination on the basis of age and disability discrimination before the New South Wales Civil and Administrative Tribunal under the Anti-Discrimination Act 1977. To the extent that it is relevant, I note that Ms Tan's amended Form F8A removed the reference to s.351 protection which had been referred to in a previous iteration of her application and Ms Tan did not make any submissions before me regarding discriminatory conduct (other than correctly noting that discriminatory conduct can be a form of adverse action). The relevance of this authority was not further identified in submissions or at hearing.

• [53] Ms Tan gave evidence that she received the decision of Deputy President Roberts on 5 July.[45] Ms Tan did not file evidence going to the delay between receiving the decision and filing her application on 10 July. In cross-examination and in response to questions from me Ms Tan gave evidence that she was not home at the time the decision was handed down, as she had been away having her car fixed, and had not been checking her emails.[46] She also gave evidence that she was working. Regardless, Ms Tan did not file the Application for a further five days. I do not consider that the evidence of Ms Tan supports a finding of 'exceptional circumstances'. These matters are not 'out of the ordinary course, unusual, special, or uncommon'.[47] It is not uncommon for applicants before the Commission to be working and attending to matters of everyday life, such as getting their car fixed.

• [54] Ms Tan gave evidence that the delay in filing her application was also contributed to by conducting her own research without the assistance of a lawyer. Ms Tan also argues that legal expertise being 'afforded to some but not others' resulted in an uneven playing field between the parties and contributed to the delay. I accept that it can be challenging for Council employees to navigate the Fair Work system. But Ms Tan is not in a different situation to any other Council employee in navigating the relevant legislation or the Commission's processes. However, I do not accept the Respondents' argument that Ms Tan was an experienced litigant and that this should have made the process easier. Her previous proceedings were not in relation to employment with a local government authority and Ms Tan does not say that she was unaware of any statutory time limits.

• [55] Ms Tan relies on various interactions with Commission members, staff and advisors from the Commission's Workplace Advice Service partners to provide partial explanation for the reasons for the delay. The exact dates and nature of many of these interactions are not set out in her evidence. Ms Tan's submissions appear to be referring to interactions after filing the First GP Application and before the Unlawful Termination Application as well as some that occurred around 23 July 2024, after the Application was filed. The evidence filed did not adequately explain the role that the Commission was said to have had in contributing to the delay in filing this application. I note that the majority of these interactions appear to be after each of the General Protections applications were filed. Other than the amended application filed in these proceedings on 23 July 2024, the capacity for these interactions to have substantively caused Ms Tan's delays in filing her applications is unclear. Based on the evidence before me, I cannot identify any delay arising from the administration of the Commission that would have contributed to the delay in filing the Application before me. It was Ms Tan's responsibility to determine whether to discontinue the First GP Application and commence the Unlawful Termination Application out of time and to commence these proceedings after Deputy President Roberts handed down his decision. Ms Tan's decisions were strategic and forensic. I am not persuaded that any conduct of Commission staff, members or the Commission's Workplace Advice Service partners contributed to the delay.

• [56] To the extent that it is alleged in these proceedings that Ms Tan did not have access to relevant evidence at the time of her dismissal or commencing these proceedings I do not accept this submission or consider that it provided a credible reason for the delay. Ms Tan has filed detailed, comprehensive applications in the Commission even though detailed evidence is not required to be filed at the time of filing an application.

• [57] The test invariably applied in these matters is whether an applicant has a 'credible and reasonable' explanation for the delay.[48] 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 the applicant's favour, however all of the circumstances must be considered.[49] Having had regard to the evidence and submissions filed I do not consider that Ms Tan's reasons for delay, either individually or collectively, provide an acceptable or reasonable explanation for the delay in lodging the Application. Accordingly, this weighs against a finding that there are exceptional circumstances that would warrant an extension of time.

• [58] Generally, where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant's employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[50]

• [59] I accept that Ms Tan is deeply aggrieved by her treatment whilst employed at Wingecarribee. In this case, Ms Tan has taken vigorous steps to dispute her dismissal as set out above at [14]. Ms Tan lodged and then discontinued the First GP Application. She then commenced the Unlawful Termination Application on the same day. When that claim was dismissed she commenced the current application approximately 8 days later.

• [60] However, as originally filed, the First GP Application was only commenced against Wingecarribee. By way of Form F1 and amended Form F8 filed by Ms Tan on 14 May 2024, Ms Tan sought to remove Wingecarribee completely and name Ms Baget-Juleff and Ms Miscamble as the sole Respondents to the First GP application. The application filed in these proceedings on 10 July 2024 named three Respondents (including Wingecarribee, Ms Miscamble and Ms Baget-Juleff). However, Mr May was only aware that he might be individually named as a Respondent after these proceedings were commenced and Ms Tan filed an amended application on 23 July 2024.

• [61] I consider that, on balance, Ms Tan's actions taken to dispute the dismissal are slightly in favour of a finding that exceptional circumstances exist that would warrant an extension, given that she has consistently sought to agitate against her dismissal in the First GP Application, the Unlawful Termination Application and these proceedings.

• [62] In reaching this conclusion I have had regard to the matters set out in the preceding two paragraphs regarding the Individual Respondents, that one of these applications was discontinued and the amendment to include Wingecarribee on the morning of the hearing before Deputy President Roberts.

Prejudice to the employer (including prejudice caused by the delay)

• [63] The Respondents submitted that they would be prejudiced if I determined to grant an extension of time to Ms Tan to lodge the Application due to the length of the delay. It was submitted that a respondent should be entitled to assume that there is no further risk of litigation relating to the employment after the expiration of the 21-day time period. Emphasis was placed on the impact on Mr May, Ms Miscamble and Ms Baget-Juleff if the application was granted as they had not been parties to the First GP Application.

• [64] It was further said that the reason to discontinue the First GP Application, file the Unlawful Termination Application and then commence these proceedings was not readily apparent but that Ms Tan's decisions to do so were considered and forensic. The Respondents relied upon prejudice imposed by the time and costs of responding to the Application, together with the effect on the Individual Respondents of having serious allegations made against them in these proceedings. The Respondents also argued that they would be prejudiced by matters being ventilated in these proceedings that may be subject to investigation by various NSW Government bodies.

• [65] In her written submissions Ms Tan contended that no prejudice to the employer existed and that the length of the delay was irrelevant. Ms Tan further submitted that it had not been a forensic decision to discontinue the First GP Application and effectively argued that any prejudice to Wingecarribee had been brought on itself due to its filing of a jurisdictional objection. However, at the hearing before me Ms Tan conceded during cross-examination, and ultimately made submissions, that her decision to discontinue the First GP Application and commence the Unlawful Termination Application had been considered, based on her research, and ultimately made in the best interests of her case. [51]

• [66] She also submitted that any costs incurred by Wingecarribee were not relevant as they did not need to engage external legal representation as they had their own in-house legal team and as the matter could have been settled by agreement early on in the proceedings. Ms Tan also argued that she had pursued proceedings regarding her dismissal vigorously while navigating a 'very complex legal minefield' and that her application was not spurious given the unlawful conduct of the Respondents. She also said that no prejudice would be occasioned by her application being determined by the Commission as she had not yet made complaints to any NSW Government bodies.

• [67] Many of the submissions of the Respondents were focussed on the prejudice to the Individual Respondents. However, the statutory task is for me to consider any potential prejudice to the employer. The main prejudice that Wingecarribee is said to suffer appears to be the time and costs involved in defending a proceeding in the federal jurisdiction in relation to an employee whose employment is said to not be regulated by the Act.

• [68] In all the circumstances, I do not find that any material prejudice would be suffered by Wingecarribee if an extension of time were granted. However, in Jovcic v Coopers Brewery Limited,[52] Besanko J stated that 'the mere absence of prejudice to the respondent is not enough to justify the grant of an extension.' I acknowledge that these observations were made in the context of an application to extend time for appeal. I nonetheless consider that they are apposite for an application to extend time under s.366(2). I consider prejudice to the employer to be a neutral factor in the overall assessment of whether there are exceptional circumstances.

• [69] While the merits of the substantive application form a part of the consideration of whether to grant an extension of time under s.366(2)(d), the Commission does not embark on a detailed consideration of the substantive case.[53] It is well established that, 'it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)'.[54] There are cogent reasons why the Commission should not receive evidence and make factual findings on contested issues at this stage of the proceedings: most notably because parties should not have to present their evidentiary case twice.[55] This is especially important when considering the merits of a General Protections application as the role of the Commission in dealing with these applications is ordinarily limited to conciliation.[56]

• [70] As I have not heard all of the evidence of the parties in Ms Tan's substantive application it is not possible for me to make a detailed or concluded assessment of the merits of Ms Tan's claim. It is clear that there is significant factual contest between the parties.

• [71] Ms Tan's application claims that the Respondent/s took adverse action against her which contravened the General Protections in Part 3-1 of the Act. Ms Tan's application claims that she had exercised, or proposed to exercise, a workplace right and that it was for this reason that the Respondent/s took adverse action against her. Although Ms Tan's application contains references to the prohibitions on discrimination at s.351 and coercion at s.343 of the Act, Ms Tan's application does not identify the bases for her reliance on these sections, nor did she make any submissions addressing these matters. Accordingly, I have focused my preliminary assessment of the merits of this case on whether the Respondent/s took adverse action because of Ms Tan's protected workplace rights per s.340 of the Act.

• [72] Ms Tan submits that she was dismissed as a result of making various complaints and/or enquiries in relation to her employment. Ms Tan has not identified with any great specificity the complaints or enquiries that she relies upon. However, it appears that Ms Tan relies on what she says were obligatory disclosures in relation to alleged wrongdoing in public office by employees and officers of Wingecarribee regarding sensitive information being leaked to the media.

• [73] Ms Tan also appears to rely on a complaint she made to Wingecarribee's Human Resources department concerning Ms Tan's treatment in her employment and Ms Baget-Juleff's handling of the obligatory disclosure. Ms Tan's evidence was that she had not made a complaint to an external government body. She relies upon the temporal connection between her making complaints and her dismissal. She also relies on the fact that she was a good performer and submitted that, accordingly, the stated reasons for her dismissal were not valid and would not be made out.

• [74] The Respondents submit that the application has no merit. They dispute that Ms Tan has identified any workplace right, let alone the exercise of one. They say that she was dismissed pursuant to a contractual right to dismiss her within her probationary period and that this was the real and only reason for Ms Tan's termination.

• [75] The Respondents have also raised two jurisdictional objections. The first of these is that Ms Tan's application is doomed to fail as the application has been made 'outside of jurisdiction'. The Respondents' argument is that the matters relating to NSW local government employees were expressly excluded from the referral in the Industrial Relations (Commonwealth Powers) Act (2009). Further, Wingecarribee is not a national system employer or constitutionally covered entity within the meaning of the Act. It is a 'body politic' not a body corporate and unlikely engaging in any significant trading activities even if found to be a body corporate. The Individual Respondents were not Ms Tan's employer, nor 'persons' or 'employees' for the purposes of Part 3-1 of the Act.

• [76] The Respondents also argue that the application before me offends s.725 of the Act by reason of the application of s.730. Put simply, Ms Tan has discontinued one application regarding her dismissal and run another unsuccessfully before Deputy President Roberts. It was argued that this precluded her from pursuing the current application.

• [77] Ms Tan has named three Individual Respondents to her application. Her application contends that adverse action was taken against her, within the meaning of s.342(1)(1) of the Act, by her employer against her as an employee. The Respondents submitted that, it is not contended, and there is no evidence before me, that the Individual Respondents were the 'employer' of Ms Tan as would be required for the Individual Respondents to be captured by s.342(1)(1) of the Act.

• [78] The Respondents have raised that s.731 of the Local Government Act (1993) NSW protects the Individual Respondents from actions against employees of Wingecarribee, where the action arises from an employee's discharge of functions under that instrument.[57]

• [79] There are significant jurisdictional hurdles to overcome should this matter proceed. The first of these is a serious argument that the Commission's jurisdiction does not extend to Wingecarribee. A similar argument has been successful in relation to another council twice in recent times.[58] Of course, this will not be determinative of Ms Tan's application for an extension of time to file her application. However, there is real doubt as to the prospects of Ms Tan's application given the nature and activities of Wingecarribee.

• [80] In relation to the second objection concerning multiple actions, I note that the Full Bench in Appeal by ABC Transport Pty Ltd[59] formed a view that a similar jurisdictional objection was not made out in similar circumstances.[60]

• [81] In relation to Ms Tan's substantive claim, I accept that Ms Tan made complaints or enquiries during her employment including on 28 February 2024 and on the day of her termination on 12 April 2024. Whether these complaints or enquiries were 'regarding her employment' within the meaning of the Act and whether she was 'able' to make them within the meaning of 341(1)(c)(ii) of the Act remain to be seen.[61] Ms Tan was dismissed. The effect of the evidence on behalf of the Respondents, which does not appear to be the evidence of the decision-maker nor does it disclose who the decision-maker was, is that Ms Tan was dismissed as Wingecarribee no longer wished to continue Ms Tan's employment during her probationary period and for no other reason. The Respondents submit that Ms Tan's dismissal did not breach Part 3-1 of the Act.

• [82] Taken at its highest, the relationship between the complaints or inquiries made by Ms Tan and the adverse action which she claims was taken because of them is opaque. Despite this aspect of Ms Tan's case being subject to voluminous evidence and submissions by Ms Tan, I am unable to identify a strong basis for Ms Tan's application.

• [83] Generally speaking, I accept that named personal respondents may be taken to be 'involved in' a contravention of a civil remedy provision of the Act per the accessorial liability provisions at s.550 of the Act. The definition of being 'involved in the contravention' is defined at s.550(2) as aiding, abetting, counselling or procuring the contravention, inducing the contravention, being knowingly concerned in or a party to a contravention, or conspiring with others to effect the contravention. To be found accessorily liable, a person:[62]

(a) Must have knowledge of the essential facts constituting the contravention;

(b) Must be knowingly concerned in the contravention;

(c) Must be an intentional participant in the contravention based on actual, not constructive, knowledge of the essential facts constituting the contravention - although constructive knowledge may be sufficient in cases of wilful blindness; and,

(d) Need not know that the matters in question constituted a contravention.

• [84] In relation to the Respondents' argument concerning the protections afforded by s.731 of the Local Government Act (1993), the submissions and evidence before the Commission in this matter do not establish the bases for, nor is it the Commission's task in relation to this application given the limits of its jurisdiction in relation to s.365 applications, to make any findings in relation to the accessorial liability or otherwise of the Individual Respondents. However, I observe that the protections may be a matter of relevance to the question of the liability of the Individual Respondents in any relevant Court proceedings.

• [85] Given my observations above and the serious jurisdictional objections raised by the Respondents, I am satisfied that the merits of the Application are a neutral consideration in relation to whether I should extend time for the application to be made.

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

• [86] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any matter relevant to this aspect of the consideration. Accordingly, I treat this factor as a neutral consideration.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [87] As set out above at [28], 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.[63]

• [88] Taking into consideration all of the evidence and submissions raised by the parties and the matters I am required to take into account under s.366(2) of the Act, I do not consider that there are exceptional circumstances in this matter, either when the circumstances are considered individually or together. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

• [89] As 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) of the Act. Accordingly, the Application is dismissed. An order will be issued to this effect.[64]

D. Gardner of Bartier Perry on behalf of the Respondents.

[1] Collectively, Wingecarribee and the individually named Respondents are referred to as 'the Respondents'.

[2] Ms Tan's original application filed on 10 July 2024 ticked the corresponding boxes for s.340 - Protection, s.346 - Industrial activities protection, and s.351 - Discrimination, and contained excerpts from ss.343 and 345 of the Act. However, Ms Tan's amended application filed on 23 July 2024, which she proceeded on at hearing, did not have the box for discrimination or industrial activities ticked. It did however contain references to ss.351, 342 and 343 of the Act. The box for coercion was not ticked in either iteration of the application.

[4] Witness statement of Ms Danielle Lidgard dated 20 August 2024 [47] - [50], Annexure DL-5.

[5] Witness statement of Ms Danielle Lidgard dated 20 August 2024 [50].

[6] Ms Karen Tan v Lisa Miscamble, General Manager, Wingecarribee Shire Council & Kathryn Baget-Juleff, Manager, Community, Life And Libraries and Another [2024] FWC 1737, [9].

[7] On 16 May 2024, the Commission notified Ms Tan that the Regional Coordinator had determined not to allow the amendments to Ms Tan's application as sought in the Form F1.

[8] The application before me in these proceedings included more detail concerning the alleged instances of adverse action taken by the respondent/s (both during and terminating Ms Tan's employment), as well as references to alleged false and unsubstantiated claims made by other members of staff concerning Ms Tan.

[9] Transcript - 3 October 2024, PN486 - PN488.

[10] Transcript - 3 October 2024, PN482 - PN504.

[11] Transcript - 3 October 2024, PN1127.

[12] Ben Buksh v Ramsay Health Care T/A Peninsula Private Hospital [2020] FWCFB 4352 [19].

[13] Transcript - 3 October 2024, PN476 - PN504.

[14] AB v Tabcorp Holdings Ltd [2015] FWCFB 523 [11].

[15] Chandra Gupta Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530,[20] - [24].

[17] Section 366(1) of the Act states that a General Protections application involving a dismissal must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s.366(2).

[18] Mrs Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited [2022] FWCFB 234, [15] - [27].

[19] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[21] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12].

[22] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[24] Witness statement of Karen Tan, dated 17 September 2024; Witness statement of Scott Alle, dated 6 June 2024; Statement on behalf of Grame Day, dated 16 September 2024.

[25] Witness Statement of Danielle Lidgard dated 20 August 2024, DL-8, [1].

[26] Karen Tan v Lisa Miscamble, Kathryn Baget-Juleff, Manager, Community and Wingecarribee Shire Council [2024] FWC 1737, [17].

[27] Applicant's outline of submissions on jurisdiction dated 17 September 2024, p.225 - 226 of the Court Book, Transcript - 3 October 2024, PN486 - PN494.

[28] Form F8 - Amended - dated 23 July 2024 at 1.4, p.755 - 756 of the Court Book, Transcript - 3 October 2024, PN285 - PN288, PN494 - PN497.

[29] Transcript - 3 October 2024 at PN447.

[30] Transcript - 3 October 2024 at PN460, PN470, PN485, PN673.

[31] Transcript - 3 October 2024 at PN921.

[32] [2009] FWA 1431.

[33] PR966972.

[34] [2010] FWA 3939.

[35] [2019] FCCA 1295.

[36] [2017] NSWCATAD 273.

[37] [2023] FWCFB 231.

[38] Witness Statement of Danielle Lidgard dated 20 August 2024, DL-8, [1].

[39] Transcript - 3 October 2024, PN471 - PN504.

[40]Transcript - 3 October 2024, PN1127.

[41] Ms Karen Tan v Lisa Miscamble, General Manager, Wingecarribee Shire Council & Kathryn Baget-Juleff, Manager, Community, Life And Libraries and Another [2024] FWC 1737, [24].

[42] [2019] FCCA 1295.

[43] Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd (No. 2) [2019] FCCA 1295.

[44] [2017] NSWCATAD 273.

[45] Transcript - 3 October 2024, PN631 - PN635.

[46] Transcript - 3 October 2024, PN625 - PN635, PN657 - PN662.

[47] Ho v Professional Services Review Committee No 295 [2007] FCA 388 [25]; citing R v Kelly [1999] UKHL 4; [2000] QB 198, 208; cited in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 [13].

[48] Mamo v ICLED Australia Pty Limited T/A SignsNational Group [2021] FWC 3903, [11].

[49] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

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

[51] Transcript - 3 October 2024, PN482 - PN504_,_ PN1127.

[52] [2023] FCA 797.

[53] Kyvelos v Champion Socks Pty Ltd (2000) Print T2421[14].

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

[55] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 [72].

[56] Fair Work Act 2009 (Cth) s.368(1) and (2).

[57] Respondents' Submissions on Jurisdiction - dated 27 August 2024 [11.3.2].

[58] Danielle Mazza v Council of the City of Ryde [2024] FWC 580; Veronika Bonora v Council of The City of Ryde [2024] FWC 384.

[59] [2012] FWAFB 3212.

[60] [2012] FWAFB 3212 at [12].

[61] See Alam v National Australia Bank Limited [2021] FCAFC 178 [97] (read with [81] and [95]); [75]; El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260, [23].

[62] Yorke v Lucas (1985) 158 CLR 661 at 666 - 667, Fair Work Ombudsman v Quincolli Pty Ltd (2011) 63 AILR 101 - 498, Fair Work Ombusman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176].

[63] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[64] PR784678.

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