Maria Esguerra v Uniting Church in Australia Property Trust [2020] FWC 1935 | Case summary | Zoe

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Maria Esguerra v Uniting Church in Australia Property Trust

[2020] FWC 1935

Fair Work Commission|2020-04-14

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At a glance

AI case summary

Result

procedural. Extension of time under s 366(2) refused; the s 365 application was dismissed ([53]).

Key principles

Under s 366(2) of the Fair Work Act 2009 (Cth), an extension of time for a s 365 general protections dismissal application requires the Commission to be satisfied that...
On the evidence in this case, distress and anxiety after dismissal, the medical material filed, the applicant’s other activities and legal consultation, and her asserted...

Issues before the court

Whether the Commission should extend the 21-day period for filing a general protections dismissal application.
Whether post-dismissal distress, anxiety, or the applicant’s medical evidence explained the delay.
Whether preparing and making an NDIS Commission complaint provided an acceptable explanation for the delay.
What weight should be given to action disputing dismissal and prejudice to the employer?

Cited legislation

3 cited instruments linked from this judgment.

Plain English Summary

The Commission refused to extend the filing deadline for Ms Esguerra’s general protections dismissal application. It accepted that she was distressed and that her concerns about the client were important, but found that the evidence did not show she was unable to file on time or that the reporting work adequately explained the late filing. The absence of employer prejudice, the uncertain merits, and the fairness comparison were neutral; taking no action to dispute her dismissal weighed against an extension. The Commission therefore dismissed the application without finally deciding whether the alleged general protections contraventions occurred.

AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.

Deep Dive

2,233 words · generated 02/10/2026

What happened

In Maria Esguerra v Uniting Church in Australia Property Trust (Q) T/A UnitingCare Queensland [2020] FWC 1935, the Fair Work Commission dealt with a threshold timing issue, not a final determination of whether the former employer had contravened the general protections provisions.

Ms Esguerra began work as a Behaviour Support Practitioner (Psychologist) on 12 August 2019. She was responsible for behavioural support for a client with significant health and support needs ([6]–[8]). She said that she raised concerns about the client’s care during her employment. On 17 September 2019, she emailed several management employees raising “serious concerns” and recommending a report to the NDIS Commission ([41]). Her employment ended effective immediately on 19 September 2019 ([2], [42]).

Section 366(1) required a s 365 application to be filed within 21 days after dismissal took effect. The Commission calculated the deadline as midnight on 10 October 2019. Ms Esguerra filed on 28 October, 18 days late, and sought a further period under s 366(2) ([1]–[2]). The respondent opposed the extension.

Ms Esguerra relied on several explanations for the delay. She described shock, anxiety and distress after dismissal, and filed a medical certificate and a GP progress note. She also relied on evidence from her clinical supervisor, Ms Hendren. She had attended the NDIS Commission on 23 September, supported the client’s parent at a psychiatrist appointment on 10 October, and prepared and submitted material concerning the client’s care to the NDIS Commission on 24 October ([14]–[19], [34]). She said reporting her concerns was a professional and protective responsibility.

The Commission refused the extension. It found that Ms Esguerra had not given an acceptable explanation for the delay, had taken no action to dispute her dismissal, and had not established the exceptional circumstances required by s 366(2). Prejudice, merits, and fairness between people in a like position were treated as neutral ([35]–[53]). The result was procedural: the Commission dismissed the s 365 application because it was late and no extension was granted. It did not finally decide the underlying allegations.

Why the court decided this way

The Commission began with the statutory test. Section 366(2) permits an extension only where the Commission is satisfied that exceptional circumstances exist. It must consider the reason for delay, any action taken to dispute the dismissal, prejudice to the employer, the merits, and fairness as between the applicant and people in a like position ([9]–[11]). The decision adopted the formulation in Nulty v Blue Star Group Pty Ltd: circumstances may be unusual, special or uncommon without being unique, and exceptional circumstances can result from one factor or a combination of factors ([10]).

The main issue was the explanation for the delay. The Commission accepted that Ms Esguerra was distressed and anxious after losing her job. It nevertheless found that the medical material did not indicate she was incapacitated from filing an application. The WorkCover certificate addressed capacity for work, and the progress note recorded anxiety-related insomnia, but neither established that she could not lodge a claim ([14], [22], [24]). Ms Hendren was a colleague and supervisor, not Ms Esguerra’s treating psychologist. The Deputy President therefore gave her evidence about Ms Esguerra’s mental state little weight. At its highest, it showed that Ms Esguerra was distressed and confused, not that she was unable to file ([16], [24]).

The Commission also looked at what Ms Esguerra was able to do. She attended the NDIS Commission, went to medical appointments, supported the client’s parent, and sought legal advice on 1 October, within the original 21-day period ([18], [25]). The Deputy President reasoned that these activities did not support a conclusion that she lacked capacity to lodge the application. The cost of legal advice and her claimed lack of information about self-representation did not establish exceptional circumstances. There was no probative evidence about the advice actually provided, and ignorance of one’s rights was not treated as an exceptional circumstance ([25]).

The Commission recognised that the client’s welfare concerns were serious. It accepted that Ms Esguerra believed a complaint was needed to safeguard the client and that the client was vulnerable and reliant on others ([33]). But it distinguished the importance of that concern from whether the complaint process explained the delay in filing her employment application. Ms Esguerra said she was legally or professionally obliged to report. The Commission found that the asserted professional obligations and some cited NDIS materials had not been put in evidence or tied to a specific provision requiring her personally to notify the NDIS Commission ([28]–[31]).

The timing also mattered. The period directly in issue ran from expiry of the deadline on 10 October to filing on 28 October, but the circumstances from dismissal onward had to be considered when assessing the explanation ([12], [34]). Ms Esguerra began compiling material for the NDIS Commission 19 days after her dismissal, and filed that material on 24 October. She then took a further four days to lodge her Fair Work Commission application ([34]). The Commission concluded that the complaint process did not reasonably or acceptably explain the late employment application ([34]–[35]).

The remaining factors did not alter that assessment. Ms Esguerra had taken no action to dispute her dismissal, which weighed against an extension ([36]). The respondent’s assertion that witness recollection would be affected was rejected as a significant prejudice given the delay was 18 days. But the absence of prejudice was only neutral, not a reason by itself to grant extra time ([37]). The merits were also neutral because the claims were unclear and the extension hearing was interlocutory ([38]–[48]). The fairness comparison was neutral because Ms Esguerra’s examples concerned peers’ responses to reporting issues, rather than comparable dismissed employees seeking extensions ([49]–[50]).

Before and after state of the law

This decision did not purport to create a new test for extensions of time. It applied the statutory language in s 366(2), together with the existing Commission authorities identified in the reasons. The decision describes the statutory threshold as a “high hurdle” ([9]) and uses Nulty for the meaning of exceptional circumstances ([10]).

The reasons also explain how a delay explanation is assessed. Drawing on Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Commission stated that an unexplained part of a delay will usually weigh against an applicant, while a credible explanation for the whole period will usually weigh in the applicant’s favour. It also noted that the relevant delay period begins immediately after the filing period expires and ends when the application is made, while circumstances from the dismissal date may inform the explanation ([12]). Shaw v ANZ Bank and Ozsoy v Monstamac Industries were cited on that timing approach ([12], [34]).

The decision’s practical contribution is its application of those principles to a case involving alleged client-safeguarding work, distress, and an overlapping regulatory complaint. The Commission did not say that those circumstances can never support an extension. It assessed the evidence and chronology before it and was not satisfied that the circumstances, individually or together, crossed the statutory threshold ([33]–[35], [52]). Nor did it decide that the asserted NDIS or professional obligations did not exist. It found that the relevant obligations had not been adequately evidenced in this proceeding ([28]–[31]).

The decision’s treatment of prejudice is also specific. The short delay did not establish significant witness prejudice, but lack of prejudice was neutral rather than sufficient to justify an extension ([37]). Its treatment of merits was similarly limited: the claims were unclear, but the Commission did not finally determine their legal viability at an interlocutory extension hearing ([38]–[48]).

Key passages with plain-English translation

At [10], the decision states that exceptional circumstances must be “out of the ordinary course, or unusual, or special, or uncommon”, though they need not be unique. In plain English, an applicant does not have to show that no one has ever faced similar circumstances, but must establish something beyond the ordinary by reference to the whole situation.

At [12], the Commission explains that the reason for delay is assessed across the relevant period and in context. A gap with no explanation can count against an applicant; a credible account covering the whole period can count in their favour. The account is not confined to the days after the deadline: events from the date of dismissal can also be relevant.

At [24], the Deputy President accepted Ms Esguerra was distressed and anxious, but found that the evidence did not show she was unable to file. This is an evidentiary finding in this case, not a general rule that distress can never explain delay.

At [34], the Commission accepted the seriousness of the client-related concerns but found the complaint process did not adequately explain why the Fair Work Commission application was late. The passage focuses on when preparation began, what Ms Esguerra did during the earlier period, and the four days between sending her NDIS material and filing her employment application.

At [37], the Deputy President said that “the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time.” In plain English, an employer’s inability to show concrete harm from the delay does not automatically satisfy the applicant’s burden to establish exceptional circumstances.

At [48], the Commission treated the merits as neutral because the claims were unclear, while recognising that Ms Esguerra was unrepresented and might be able to articulate them with counsel. That statement did not decide whether any alleged contravention occurred.

What fact patterns trigger this precedent

The decision is relevant to applications seeking more time to lodge a general protections dismissal application under ss 365–366, particularly where the application was filed after the 21-day period and the applicant relies on a combination of personal circumstances and other activities to explain the delay.

Its reasoning may be relevant where an applicant relies on post-dismissal distress or medical material. The decision illustrates the importance of what the evidence actually establishes about the applicant’s ability to file, and of the weight the Commission may give to evidence from a professional supervisor who is not the applicant’s treating clinician ([14]–[16], [24]).

It may also be relevant where an applicant says they were occupied with a complaint to another body, including a safeguarding or regulatory complaint. The Commission considered the seriousness of the asserted concerns, the existence and scope of any personal reporting duty, when preparation began, the work done during the relevant period, and the interval between completing the other complaint and filing the employment application ([28]–[35]). This case does not establish that reporting activity can never explain delay. It demonstrates that the applicant’s asserted obligation and the chronology were tested against the evidence in the proceeding.

The case also illustrates the other statutory factors: whether the applicant took any action to dispute the dismissal, whether the employer could identify actual prejudice, whether the underlying claim could be assessed at an interlocutory stage, and whether there were genuinely comparable applicants for the fairness comparison ([36]–[50]).

How later courts have treated it

The supplied judgment text contains no later decisions discussing or applying Esguerra. It therefore does not establish how later courts or Commission members have treated this decision, whether it has been followed, distinguished, or developed, or whether subsequent authority has qualified its reasoning.

The authorities the decision itself discusses are earlier authorities. Nulty supplies the exceptional-circumstances formulation; Stogiannidis addresses explanations for delay; Shaw and Ozsoy are cited on the period considered; and Wilson v Woolworths and Ballarat Truck Centre Pty Ltd v Kerr are cited in connection with the fairness comparison ([10], [12], [50]). Those references show the legal framework applied by Deputy President Young, not later treatment of the 2020 decision.

Still-open questions

The decision leaves the underlying general protections allegations unresolved. It identifies uncertainty over whether Ms Esguerra relied on s 340(1)(a), s 340(1)(b), or both, and what workplace right she said was involved. The reasons also identify uncertainty about whether the alleged workplace right related to the training, the 17 September email, or the later NDIS complaint ([39]–[44]). The s 343 coercion ground was not clearly pressed at the hearing ([45]–[48]).

The decision does not determine whether Ms Esguerra was in fact required by professional registration rules or NDIS legislation to report her concerns. The Commission found that the relevant obligations were not sufficiently put in evidence, and that she had not shown that she fell within the particular roles described in ss 18 or 19 of the NDIS Incident Management and Reportable Incidents Rules ([28]–[31]). The general question of how an individual practitioner’s professional duties interact with a provider’s reporting obligations was not resolved.

Nor does the decision establish a fixed evidentiary threshold for proving incapacity, or a categorical rule about what medical or supervisory evidence will suffice in another case. Its findings turned on the documents and testimony before the Commission, including what the medical material said and the nature of Ms Hendren’s professional relationship with Ms Esguerra ([14]–[16], [24]).

Finally, the fairness factor was addressed briefly because the comparisons offered were not to persons in the statutory category of like-positioned dismissed employees making s 365 applications ([49]–[50]). The decision does not set out a general catalogue of valid comparators.

This is general legal information, not legal advice. Zoe can make mistakes. Before you act on this, rely on it, or use any draft, get a qualified Australian lawyer to check it.

Judgment (41 paragraphs)

[1]

Maria Esguerra v Uniting Church in Australia Property Trust (Q) T/A UnitingCare Queensland [2020] FWC 1935 (14 April 2020)

[2]

Fair Work Act 2009

[3]

s.365 - General protections

[4]

Uniting Church in Australia Property Trust (Q) T/A UnitingCare Queensland

[5]

Application to deal with contraventions involving dismissal - extension of time.

[6]

[1] This decision concerns an application by Ms Maria Esguerra under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

[2] It is uncontested that Ms Esguerra's employment ended on 19 September 2019. Her application was lodged on 28 October 2019. Accordingly, the period of 21 days for lodgement ended at midnight on 10 October 2019 and the application was therefore lodged 18 days out of time. Ms Esguerra seeks that the Commission allow a further period of time for the application to be made. The Respondent opposes the grant of an extension of time.

[3] Upon application by the Respondent, confidentiality orders protecting the name and address of the client referred to in Ms Esguerra's application were made on 17 March 2020. That client shall be referred to as "Client" in this decision.

[4] On 19 March 2020 I conducted the proceeding by way of telephone hearing. At the hearing Ms Esguerra appeared on her own behalf. In addition to herself, Ms Esguerra filed witness material from Mr and Mrs Banks,[1] the parents of Client (Parents), Ms Hendren[2] and Ms Best.[3] Only Ms Esguerra and Ms Hendren were required by the Respondent to attend the hearing for cross examination. Ms Lipsys, Senior Employee Relations Advisor, appeared on behalf of the Respondent.

[5] Ms Best's evidence goes to what occurred after Ms Esguerra's employment was terminated and her impressions of Ms Esguerra's work. I do not consider these are relevant matters in the present application and accordingly, I have not had regard to Ms Best's evidence.

[7]

[6] Ms Esguerra is a Registered Psychologist and Behaviour Support Provisional Practitioner.[4] She commenced employment with the Respondent on 12 August 2019 in the position of Behaviour Support Practitioner (Psychologist) within the Respondent's Allied Health Unit.[5] In her role with the Respondent, Ms Esguerra was responsible for Client's Behavioural Support.[6] Client is a 40 year old man who has Down syndrome, intellectual impairment, early onset dementia, type 2 diabetes and multiple other health concerns. Client resides at a supported independent living residence with a disabled co-tenant.[7] Client is a National Disability Insurance Scheme (NDIS) participant and receives support and services from the Respondent.[8]

[7] On 12 August 2019 Ms Esguerra and her line manager, Ms Pantoja, met with Parents. At the meeting, which went for approximately two- and one-half hours,[9] Ms Esguerra says that Parents raised a number of concerns regarding the Respondent's treatment of Client[10].

[8] Ms Esguerra was responsible for Client's behaviour support.

[8]

[9] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that 'exceptional circumstances' exist. This establishes a high hurdle for an applicant.[11]

[10] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd,[12] (Nulty) where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that exceptional circumstances can 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.[13]

[11] Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:

[9]

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

[10]

[11]

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

[12]

[12] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable[14] or a reasonable explanation.[15] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[16] the Full Bench noted that the absence of an 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 the circumstances must be considered.[17] The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.[18]

[13] In her materials and in her evidence at hearing Ms Esguerra says that the reasons for the delay in lodgement were manifold.

[14] Ms Esguerra says she decompressed with severe stress and anxiety and she was in shock and disbelief at her termination.[19] At hearing her evidence was that she was affronted, shocked and confused by her dismissal. She says she has consulted Dr Ishtiaq Rashid and Dr Leigh Cooper.[20] She says she has consulted a psychologist and that her clinical supervisor, Ms Hendren, can attest to her mental state post termination.[21] Ms Esguerra filed the following medical evidence:

• Queensland Worker's Compensation Medical Certificate, dated 1 October 2019, signed by Dr Rashid, which provides that Ms Esguerra had no capacity for any type of work for the period 1 October 2019 - 15 October 2019 and refers her to Mr Olaf Handrick, Psychologist[22] (WorkCover Certificate);

• Progress Note from the Homeworld Helensvale Medical Centre, evidencing a consultation with Dr Copper on 21 September 2019, which provides that the reason for the consultation was " and prescribes Temaze (Progress Note).

[13]

"The Commissioner is notified of all reportable incidents involving the use of unauthorised restrictive practice in accordance with the National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018." [47]

[14]

[30] Both the NDIS Practice Standards and the National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 (Rules) were in evidence before me,[48] however, Ms Esguerra made no specific submission as to these documents. In particular, she did not identify any section or specific provision of any particular document that she says required her to notify the NDIS Commission. If the inclusion of the above extract is intended to be a submission that such an obligation arose under the NDIS Practice Standards, that submission is rejected. Firstly, the NDIS Practice Standards provide that they "create a... benchmark for providers to assess their performance"[49] and "set out the rights of participants and the responsibilities of providers that deliver supports and services to them."[50] Accordingly, on their face, the NDIS Practice Standards, generally, appear to apply to NDIS providers, rather than the individual employees of providers. Secondly, the above provides that notification of reportable incidents is to be in accordance with the Rules_._ Part 3 of the Rules deals with reportable incidents. For the most part, the obligations under Part 3, which includes a requirement that certain reportable incidents be notified to the NDIS Commissioner within 24 hours, also appears to apply to NDIS providers rather than individual employees. Exceptions to this are to be found in section 18 and 19 of the Rules. Section 19 requires an employee who becomes aware of a reportable incident to notify certain persons within the NDIS provider of that incident. Section 18 requires certain persons within the NDIS provider to take all reasonable steps to ensure that reportable incidents are notified to the NDIS Commissioner. Section 18 applies to "key personnel" of an NDIS provider and the person within the NDIS provider who is responsible for reporting reportable incidents to the NDIS Commissioner. Ms Esguerra did not advance any contention or evidence that she was a member of the Respondent's key personnel as defined in section 18 of the Rules or that she was the person within the Respondent responsible for reporting reportable incidents to the NDIS Commissioner.

Ms Hendren also gave evidence that under NDIS legislation a psychologist is obliged to act if they believe a person under a disability is at risk of abuse or neglect. However, Ms Hendren also did not identify where under NDIS legislation those obligations arose. Accordingly, whilst it may indeed be the case that there are professional registration obligations and NDIS legislative provisions which required Ms Esguerra to report her concerns to the NDIS Commission, there is no evidence of those obligations currently before the Commission.

[15]

Action taken by the person to dispute the dismissal

[16]

[36] It is uncontested that Ms Esguerra took no action to dispute her dismissal. This weighs against the granting of an extension of time.

[17]

[37] The Respondent submits that they are prejudiced as "so much time has passed" and this will present challenges for witness evidence. I reject that submission. I do not consider that a delay of 18 days will have any significant impact upon the ability of witnesses to recall relevant events and, as such, I cannot identify any particular prejudice that would accrue to the employer were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.

[18]

[38] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[39] Ms Esguerra alleges that adverse action was taken against her in breach of section 340 and 343 of the Act.[52] However, there is a lack of clarity as to how Ms Esguerra puts her claim.

[19]

[40] In her application, Ms Esguerra says that the contravention of section 340 relied upon is section 340(1)(b) of the Act.[53] That section provides that a person must not take adverse action against another person to prevent the exercise of a workplace right. 'Adverse action' is defined in section 342 and includes a dismissal. Section 341 provides that a person has a workplace right if, amongst other things, the person is entitled to the benefit of, or has a role or responsibility under, relevantly, a workplace law, or a workplace instrument or, if the person is an employee, is able to make a complaint or inquiry in relation to their employment. However, it is somewhat unclear from other material and submissions made by Ms Esguerra as to whether she relies solely on section 340(1)(b) or whether a contravention of section 340(1)(a) is also alleged.

[41] On 17 September 2019 Ms Esguerra sent an email to a number of management employees within the Respondent, raising "serious concerns" she had about the care of Client (Email). The Email included a recommendation that a report be made to the NDIS Commission.[54] She says that after sending the Email she was called into a meeting with Ms Pantoja and reprimanded for the manner in which she conducted a training session on 16 September 2019 at Client's house. She says she was told that she had made staff cry, that she should not have told employees she was a psychologist, used a PowerPoint presentation or spoken about legal requirements as some employees had felt threatened (Meeting).[55]

[42] She says that she was absent from work on 18 September 2019 and that on 19 September 2019 she was called into a meeting and her employment was terminated effective immediately[56] for breach of the Respondent's Code of Conduct.[57]

[43] The workplace right relied upon by Ms Esguerra is somewhat unclear. In her application Ms Esguerra says that she was terminated due to making a mandatory complaint in relation to abuse, neglect and use of unauthorised restrictive practices.[58] I note that the complaint made to the NDIS Commission was made after Ms Esguerra's dismissal. However, she also says in her application that she was terminated for sending the Email. It is unclear as to whether the Email is asserted to be a complaint or inquiry for the purpose of section 341(1)(c)(ii) or is relied upon for the purposes of section 341(1)(c)(i) only. In her Outline of Argument, she says that she was terminated for informing staff and managers of the NDIS legislation and recommending a mandatory report be made to the NDIS Commission. It is unclear whether this is a reference to the training delivered on 16 September 2019 or the Email. At hearing when asked to clarify the workplace right that she relied upon she referred to the training of 16 September 2019 at which she informed employees of the obligations under the NDIS legislation and also the sending of the Email.

[20]

"The performance displayed by you since your employment commenced on Monday 12 August 2019 and the incident that took place on Monday 16 September and Tuesday 17 September 2019, is less than that which is expected of you as a Behavioural Practitioner (Psychologist) and is in beach of the Uniting Care Code of Conduct."

[21]

[45] Section 343(1) provides that a person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person or a third person to, amongst other things, exercise or not exercise a workplace right.

[46] As I understand her materials, Ms Esguerra says that the action taken to coerce her not to exercise a workplace right was the Meeting. She says this occurred after she sent the Email and that in the Meeting she was personally attacked.[61] The workplace right relied upon appears to be the ability to complain to the NDIS Commission.[62]

[47] Ms Esguerra did not appear to press this ground at hearing nor did the Respondent make any oral submissions as to it. In its written materials the Respondent refute that Ms Esguerra was coerced not to make a complaint to the NDIS Commission.[63]

[48] I consider there to be a considerable lack of clarity as to what contravention or contraventions of Part 3-1 are relied upon by Ms Esguerra and how she says they arise. There is a lack of clarity as to what the workplace right relied upon is and, if it is asserted to be the ability to make a complaint pursuant to section 341(1)(c)(1), what the workplace law or workplace instrument relied upon is. However, Ms Esguerra is unrepresented, and it may be that she is able to better articulate her claims with the assistance of Counsel. Given the interlocutory nature of this proceeding I am prepared to consider the merits of the matter as neutral.

[22]

Fairness as between the person and another person in a like position

[23]

[49] Applications to extend time generally turn on their own facts. Ms Esguerra submits that her position is considerably less fair than others in her position. She says that the Respondent had an obligation to notify the NDIS Commission of reportable incidents and because it would not do so, Ms Esguerra was required to do so. She says she is aware of peers who have identified to their employer that a mandatory complaint is required to be made to the NDIS Commission and they have been supported and assisted to make that complaint. She says she has been involved in many circumstances where concerns have been raised and she has never been treated as she was by the Respondent.

[50] Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.[64] Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.[65] As such, I am not assisted in my consideration of the fairness as between Ms Esguerra and others in a like position by the matters raised by Ms Esguerra in this regard. I consider this to be a neutral consideration in the present matter.

[24]

[51] The time limit that applies to the exercise of a person's right to bring an application under section 365 reflects the Parliament's intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[52] Having regard to all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist.

[53] Accordingly, I decline to grant an extension of time under section 366(2). Ms Esguerra's application under section 365 of the Act is dismissed.

[25]

Seal of the Fair Work Commission with member's signature

[26]

[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [14]

[27]

[12] [2011] FWAFB 975

[28]

[14] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, per Gostencnik DP at [9]

[29]

[15] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16]

[30]

[16] [2018] FWCFB 901

[31]

[18] See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]

[32]

[28] Exhibit A1 at question 1.4; Exhibit A2 at question 1d

[33]

[37] Exhibit R2, Annexure A at [1.2.1]

[34]

[41] Exhibit R2, Annexure A at [1.2.2], [1.2.6], [1.2.7]

[35]

[44] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

[36]

[51] See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]

[37]

[55] Exhibit A1 at question 3.1; Exhibit A2 at question 1h

[38]

[63] Exhibit R1 at question 5.1 at [6]

[39]

[64] Wilson v Woolworths [2010] WA 2480 at [24 - 29]

[40]

[65] Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB 5645 at [26]

[41]

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