s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdictional objection - out of time - representative error - extension granted.

• [1] This decision concerns an application by Ms Tanya Webber for an extension of time pursuant to s 394(3) of the Fair Work Act 2009 (the Act).

• [2] Ms Webber made an application for an unfair dismissal remedy under s 394 of the Act on 18 July 2025 against the respondent, Stanwell Corporation Limited (Stanwell). Section 394(2) of the Act requires that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 394(3). It is not in dispute that Ms Webber's application was filed outside the 21-day timeframe for lodgement of the application. Ms Webber seeks that the Fair Work Commission (the Commission) allow a further period of time for the application to be made.

• [3] For the reasons that follow, I am satisfied that there are exceptional circumstances. Accordingly, the discretion to extend the time in which the application may be made is enlivened.

• [4] Ms Webber commenced employment with Stanwell on 4 September 2024. Ms Webber's employment was terminated on 3 June 2025. The 21-day statutory timeframe for filing Ms Webber's application for an unfair dismissal remedy therefore expired at midnight on 24 June 2025. Ms Webber's application was filed with the Commission on 18 July 2025. The application was therefore filed 24 days outside the 21-day period. Ms Webber seeks an extension of time to make her application. Stanwell opposes this request.

• [5] Under s 394(3) of the Act, the Commission may allow a further period of time for an application under s 394 to be made, if it is satisfied that there are exceptional circumstances taking into account:

(b) whether the person first became aware of the dismissal after it had taken effect; and

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

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

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

• [6] As considered by a Full Bench in Nulty v Blue Star Group Pty Ltd.[1], in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 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.[2]

• [7] I consider each of these matters below.

Reason for the delay: s 394(3)(a)

• [8] The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable or credible,[3] or reasonable explanation.[4] 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.[5]

• [9] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application has expired.[6] However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.[7]

• [10] Ms Webber's arguments are twofold. Firstly, she argues that jurisdictional complexities that arose due to Stanwell being a Government Owned Corporation resulted in her application being filed in the wrong jurisdiction. Secondly, Ms Webber cites representative error, on the part of Prosper Law Pty Ltd (Prosper Law) as the reason that her application was filed outside of the 21-day time limit.

• [11] Ms Webber submits that on 5 June 2024, she sought legal advice from Prosper Law regarding filing an unfair dismissal application. Having reviewed an application she had prepared for filing in the Commission, Prosper Law advised that her application should instead be filed in the Queensland Industrial Relations Commission (QIRC). Ms Webber accepted this advice and Prosper Law filed an application for unfair dismissal on her behalf with the QIRC on 23 June 2025.

• [12] On 7 July 2025, 14 days after submitting the application to the QIRC, Prosper Law placed a call to the QIRC to follow up the application and were verbally advised that it had been filed in the wrong jurisdiction. That same day, Ms Webber advised Prosper Law to redirect her application to the Commission to prevent further unnecessary delays.

• [13] On 8 July 2025 Prosper Law received the following email from the QIRC:

• [14] Ms Webber submits that the QIRC's correspondence raised ambiguities with respect to whether a final decision had been made, or whether she could still pursue the application in the QIRC. Ms Webber says that after receiving this email, in any event, Prosper Law undertook the following work to address the jurisdictional complexity and prepare her application:

• 2 days of "comprehensive legal research" (8-9 July)
• 7 days to draft and review the new application (10-16 July)
• 2 days to finalise (17-18 July)

• [15] Prosper Law filed Ms Webber's application on 18 July 2025, the application was filed:

• 45 days after the dismissal
• 10 days after being advised that it had been filed in the wrong jurisdiction, and
• 24 days out of time.

• [16] Ms Webber submits the delay arose solely because her solicitors lodged her application in the incorrect jurisdiction on 23 June 2025. Ms Webber submits that she acted promptly at all times, noting that she contacted Prospect Law well within the 21-day time period and that once she was advised of the jurisdictional issues, she immediately advised that her application should be filed in the Commission without delay.

• [17] Stanwell submit Ms Webber's application should be dismissed, arguing the reasons advanced by Ms Webber do not amount to exceptional circumstances.

• [18] Stanwell suggest that any cursory google search of Stanwell Corporation Limited would provide the necessary information to a layperson - and more importantly a solicitor - that as a constitutional corporation that generates and sells electricity through the National Electricity Market, Stanwell is a National System Employer, captured by the Fair Work Act.

• [19] Notwithstanding the above, Ms Webber's employment contract clearly states that she was employed on an Alternate Employment Arrangement as per clause 2.1.3 of the Stanwell Corporate Offices Enterprise Agreement 2025, an agreement made pursuant to the Act and approved by the Commission.

• [20] Stanwell say the delay can be broken down into two distinguishable periods:

Period 1: Jurisdictional error (5 June - 8 July 2025)

The period from when Ms Webber engaged Prosper Law to when she was made aware that the QIRC was not the appropriate jurisdiction for her application.

Period 2: Application Amendment (8 July - 18 July 2025)

The 10 days from when Ms Webber was made aware that the QIRC was not the correct jurisdiction and when the application was filed in the Commission.

• [21] Period 1 - Stanwell acknowledges that Prosper Law's incorrect legal advice contributed to the delay during this period, but rejects the suggestion that there were complex legal considerations, rather they say:

• Ms Webber's employment contract clearly stated that she was covered by a federally registered enterprise agreement.
• She had received emails about voting in a federal enterprise agreement ballot.
• She had foreshadowed filing an unfair dismissal application with the Commission during her show cause process.
• She had already prepared an application to the Commission herself before seeking legal advice.
• The legal analysis required was straightforward - just checking the contract and relevant legislation.

• [22] Considering the above, Stanwell say that the advice provided to Ms Webber was clearly wrong and that she should have sought a second opinion. That she took no steps to question the advice provided by Prosper Law between 5 June 2025 and 23 June 2025 means that she cannot be said to be blameless during Period 1.

• [23] Period 2 - Stanwell submit there is no reasonable explanation for the 10-day delay in filing the application with the Commission following receipt of the QIRC's advice and say:

• No further research was needed since the jurisdictional error had already been identified.
• The application filed with the Commission was virtually identical to the original application with minimal changes.
• Any legal analysis required to be undertaken by Prosper Law, if any, would not have taken more than a couple of hours to complete.
• By 7-8 July 2025, both Ms Webber and Prosper Law knew that the statutory deadline had passed and should have taken immediate action to file an application with the Commission.

• [24] Stanwell submit that neither period establishes that exceptional circumstances exist.

• [25] Prosper law erred in advising Ms Webber to lodge her application in the QIRC. Whilst I acknowledge that there was no requirement for Ms Webber to have sought legal advice before filing her application, the fact remains that she did. It is entirely reasonable that she would have presumed the advice she was being provided was accurate. In these circumstances, I do not accept that she should have been expected to dispute this advice or seek a second opinion. I find that Prosper law's decision to file Ms Webber's application in the QIRC was the reason for the delay during period 1.

• [26] I do not accept Ms Webber's assertion that the email from the QIRC created such ambiguity as to explain a further 10 days delay in filing the application in the Commission. I agree with Stanwell's contention that it would not have been an onerous task for Prosper Law to have undertaken the legal analysis required, and that they should have been able to file an application with the Commission within a couple of hours. I again find that Prosper Law's failings were the reason for the delay during period 2. The question that remains, is whether Prosper Law's errors amount to an exceptional circumstance for Ms Webber.

• [27] Office Works Ltd v. David Parker (Office Works) is a Full bench decision which considers representative error.[8] In that decision, the Full Bench stated the following:[9]

"In circumstances where "representative error" is relied upon in Commission proceedings as an excuse or explanation for the failure to meet time limits, it is appropriate to have regard to the professional qualifications and expertise of the representative concerned. This will enable an assessment to be made as to the extent to which it was reasonable for a party to rely upon the skills and expertise of the representative in acting on their behalf. Clearly where the representative is a lawyer, an experienced industrial advocate, or an officer or employee of an organisation of employers or employees, it might more readily be concluded that representative error provides an acceptable explanation for the delay and such error should not be blamed upon the party concerned....

In general, representative error may be more readily accepted as an explanation or excuse where the person relied upon has professional qualifications or expertise in dealing with legal and employment matters than where reliance is placed on a family member or friend."

• [28] Prosper Law's website provides the following:

"At Prosper Law, we're a respected employment law firm with a proven track record of successful workplace law."

"Our legal representation covers unfair dismissal, employment contracts,

discrimination, wage disputes and other employment law matters. Our experienced legal team has the knowledge to guide you through every step."

• [29] Consistent with the comments of the Full Bench in Office Works,[10] I find that it was reasonable for Ms Webber, who is not to my knowledge legally qualified, to have formed the view that Prosper Law were sufficiently skilled to provide her with sound advice regarding her application.

• [30] This was not a situation where Ms Webber had advice in the final days of the 21-day period. I am satisfied that Ms Webber acted promptly, seeking legal advice on 5 June 2025, just 2 days after her dismissal. Even if Ms Webber had, as submitted by Stanwell, held the view that her application should have been filed in the Commission, it is understandable that, in the face of contrary advice from Prosper Law, she has relied on their expertise. Given the circumstances of this matter, she could not reasonably have been expected to have disputed their advice. I therefore find that she was without fault in the late filing.

• [31] I find Prosper Law's errors in period's 1 and 2 are an acceptable explanation of the delay. This consideration weighs in favour of an extension of time in this case.

Whether the person first became aware of the dismissal after it had taken effect: s 394(3)(b)

• [32] Ms Webber was clearly notified and acknowledges that she was notified of the dismissal on the same day that it took effect. She therefore had the full period of 21 days to lodge the unfair dismissal application. This weighs against the granting of an extension.

Action taken by the person to dispute the dismissal: s 394(3)(c)

• [33] This factor is primarily concerned with actions taken directly with Stanwell, rather than matters which Stanwell is unaware.[11]

• [34] Ms Weber submits that following her dismissal, she lodged a Right to Information request with Stanwell, seeking legal advice and lodging an application with the QIRC within the statutory timeframe.

• [35] Stanwell does not dispute that Ms Webber took some actions to dispute her dismissal, however they were unaware that Ms Webber had filed an application with the QIRC but say that those matters occurred entirely outside Stanwell's knowledge and control and should not be weighed against it in the Commission's assessment. I have treated this as a neutral consideration.

• [36] Notwithstanding Stanwell's submission regarding legal costs incurred, I do not consider that any prejudice to Stanwell would arise if an extension of time were to be granted. However, the mere absence of prejudice is not, in my view, a factor that would tell in favour of granting of an extension of time. I consider this to be a neutral consideration.

• [37] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed, and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. Ms Webber has a prima facie case, to which Stanwell raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position: s 394(3)(f)

• [38] Ms Webber submits that granting an extension would be consistent with past Commission decisions, drawing my attention to Palmer v RCR Engineering Pty Ltd [2009] FWA 1431. Stanwell suggest, and I agree, that this decision is distinguishable from this matter as the factors central to the Commission's decision to grant an extension in Palmer, are not present in the current matter.

• [39] Ms Webber is not aware whether other Stanwell employees have been able to lodge their application on time, but says her matter is distinguishable because the delay was caused solely by a jurisdictional error made by her representative. Stanwell dispute this and note that the interest of consistency and fairness across applicants, particularly those who have complied with procedural requirements, an extension of time should not be granted.

• [40] Applications to extend time turn on their own facts, however on balance, and considering the fairness between Ms Webber and other applicants whose applications have been filed out of time as a result of errors made by their representative, I find this consideration weighs in favour of an extension of time in this case.

• [41] I have found the representative errors made by Prosper Law provide an acceptable explanation of the delay and count in favour of an extension of time being granted.

• [42] In weighing the impact of the representative error against the other criteria I must consider, it is of significance that Prosper Law clearly led Ms Webber astray. She relied on them to provide her with expert legal advice regarding her dismissal and they failed her. Prosper Law made a mistake with respect to the correct jurisdiction for lodgement of Ms Webber's application, then having made this error, proceeded to take an unreasonable amount of time to file the application with the Commission. There failures led to the application being filed out of time. Having weighed all of the factors in s 394(3), I find exceptional circumstances exist and that Ms Webber should be allowed an extension of time to file her application.

• [43] In these circumstances, pursuant to s 394(3) of the Act, I order that the time for Ms Webber to make her unfair dismissal application under s 394 of the Act to the Commission be extended to 18 July 2025. I order as such.

• [44] I shall issue a notice of listing for the programming to hear the merits of the matter.

[1] [2011] FWAFB 975, 203 IR 1.

[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974 at [9].

[4] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64 at [16].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [39].

[6] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40].

[7] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12].

[8] [2014] FWCFB 5779.

[11] Curtin v High Country Plumbing & Gas Fitting Pty Ltd [2022] FWC 2916 at [10].

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