[2025] FWC 3089
General information, not legal advice.
Fair Work Commission
2025-10-15
Original judgment source is linked above.
The applicant relies on his unfamiliarity of court processes as a reason for delay. This is not an acceptable explanation. The overwhelming majority of persons who represent themselves are in the same position. The applicant demonstrated he was capable of contacting the court registry and accessing the relevant forms from the court's website. His difficulty is that he failed to take these simple steps in a timely manner leaving these steps he ought to have taken until the day he was required to initiate these proceedings.
Consideration of the reasons given for the 361 day delay
Reasonable belief in "continued employment and awareness of the dismissal"
WHAT ACTION WAS TAKEN BY MR. GONZALES TO DISPUTE THE DISMISSAL?
Consideration of action taken to dispute the dismissal
WHAT IS THE PREJUDICE TO DTP (INCLUDING PREJUDICE CAUSED BY THE DELAY_)?_
"That observation was reasonable in the context of a case where the delay in the Appellant filing her unfair dismissal application is 101 days, The observation is also consistent with the Full Bench in [GHD Pty Ltd v. Kevin Allan Black] where the relevant delay was 168 days.[37]"
"While the restructure ostensibly affected both the Applicant and his direct report, Ed Plarisan, ... it was in fact Mr Plarisan's position that was formally made redundant. However, Mr Plarisan was directly appointed to a newly titled role that retained all of the core and ancillary responsibilities previously held by the Applicant effectively continuing the Applicant's role under a different name and occupant. A contractor was then engaged two days per week to assist Mr Plarisan with the workload."
"A new Senior Rail Engineering Advisor role substantially aligned with the Applicant's skills and prior experience was created and offered to Matt Robson, a power systems engineer with a comparable CV and the Applicant's former counterpart at the Respondent's delivery agency RPV. The Applicant was not offered redeployment to this position as part of the process, nor provided with any opportunity to compete for it."
FAIRNESS AS BETWEEN MR. GONZALES AND OTHER PERSONS IN A SIMILAR POSITION
"Cases of this kind will generally turn of their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may related to matters currently before the Commission or matters which have been previously decided by the Commission."
IS THE COMMISSION SATISFIED THAT THERE ARE EXCEPTIONAL CIRCUMSTANCES, TAKING INTO ACCOUNT THE MATTERS ABOVE?
Two factors against an extension of time being granted
... The finite resources of the Commonwealth are not to be unreasonably diverted by parties who cannot accept that their claims have been unsuccessful and who seek to resubmit them to the Commission**. It is unfair for their opponents to be entangled in repetitive litigation.** And parties in other matters deserve their turn to be heard.

[1] Digital Court Book (from hereon DCB) at p. 34.
[7] [2012] FWAFB 3206 at [37], [38] and [67].
[14] [2023] FWC 1022 [46].
[15] Singh v BSG Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[17] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[22] DCB 115 - in DTP's Outline of Submission.
[23] DCB 103-104: These steps are outlined in the Outline of Submissions at paragraphs 2.4 to 2.10.
[24] DCB 115 - DTP's Outline at paragraphs 7.4 and 7.5.
[25] DCB 14 - Mr. Gonzalez's Outline at paragraphs 57 to 59.
[30] DCB 12 - paragraph 60 of Mr. Gonzalez's Outline.
[31] DCB 34 - paragraph 115 of Mr. Gonzalez's Outline.
[34] DCB 15: Gonzalez Outline paragraph 79.
[35] 186 CLR 541 at p. 556.
[38] Inna Grabovsky v. United Protestant Association NSW Ltd [2019] FWCFB 1964.
[47] [2015] FWC 8885 at [29].
[51] There is some doubt whether a "legitimate expectation" of compliance with ratified conventions in Australian domestic law is still part of the common law of Australia. In the High Court decision in Plaintiff S 10/2011 v Minister for Immigration and Citizenship, [2012] HCA 31 at paragraph 65, Gummow, Hayne, Crennan and Bell JJ stated 'the phrase "legitimate expectations" when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded'.
[52] Inna Grabowsky v. UPA NSW [2019] FWCFB 1964 [26].
Printed by authority of the Commonwealth Government Printer
Paulo Gonzalez
Department of Transport and Planning [2025] FWC 3089
(1995) 183 CLR 273
(2003) 214 CLR 1