A. AHRC was contacted as to breach of Human Rights in regard to discrimination against criminal record

B. Application was made to the FW as to breach of workplace instrument and right enacted of which is that Barto Gold Mining Pty Ltd were advised they had breached their own policy of which I had signed and returned agreement to as part of employment.

I contend to the Commission that it was thus reasonable to be of the belief whilst of perhaps similar contextual terminology of acts done by Barto Gold Mining Pty Ltd that being viewed under legal technicality it is reasonable to have assumed that the actual subject matter of dispute were different and complaint separated from actual dismissal as being the ground of the complaint and thus confusion ensued, if not whereby, Im (sic) actually correct and the initial application should have stood; one dispute being a right to be protected by and utilize a workplace right or instrument and the other as to a direct discrimination against a background characteristic of a person (that being my current criminal history status of which the FW does not decide/aribtrate (sic) such matters)..."[9]

• [28] A difficulty arises with the Applicant's claim that the AHRC claim and FWC claim are about different matters and thus should be able to run concurrently. Sections 725, 727 and 732 all use the same language with respect to an application or complaint. Specifically, they state that the application or complaint is made in relation to the dismissal (my emphasis). It seems to me that in both applications, the Applicant is applying - in the case of the FWC - or complaining - in the case the AHRC - about the dismissal. In the FWC she is applying because she says the dismissal is in breach of the general protections provisions. In the AHRC she is complaining that she was dismissed because of her criminal record. In both instances, the complaints are in relation to the dismissal.

• [29] I further note the submission made by the Respondent -see [14] above - that there are resources available to applicants that advise them of the correct processes to use when making an application. One such resource is to be found on the FWC's website in the "General Protections Benchbook." One of the topics covered is "Multiple Actions Relating to Dismissal". In that section, advice is provided about making multiple actions, and a case example provided, as follows:

Application to Australian Human Rights Commission

Alex v Costco Wholesale Australia [2014] FWC 1904 (Gostencnik DP, 20 March 2014).

An employee made a general protections dismissal dispute application to the Commission after his dismissal.

The employer objected on the basis that the employee had also made an application to the Australian Human Rights Commission (AHRC) in which the employee alleged that his dismissal was discriminatory and related to his race and colour. The employee argued that the multiple action prohibition did not apply because the AHRC complaint dealt with discrimination alleged to have occurred during employment and consequently was not a dismissal complaint.

The Commission concluded that the multiple actions provisions of the Fair Work Act operated as a bar to the general protections application being made because the AHRC complaint was a complaint made under another law by the applicant in relation to the dismissal and it had not been withdrawn nor failed for want of jurisdiction at the time the general protections dismissal dispute application was made."[10]

• [30] It seems to me that this case example is particularly on point with the present situation and was available to provide guidance to the Applicant had she chosen to access it.

• [31] I should also address the issue raised by the Respondents and rejected by the Applicant, being the additional delay in lodging the current application once the Applicant had withdrawn her AHRC and original FWC claim. I cannot accept the Applicant's submission that she needed time to research and assess her options and that the additional delay of several days was reasonable. With respect to the actual application itself, she had already made a s.365 application and so was familiar with the process. Further, she had access to all of the information she needed to make the application and could simply have copied her previous application.

• [32] At hearing the Applicant claimed that the additional time was necessary not so much because of the application itself and its contents, but because she was facing a mining company represented by a lawyer. Because of this she claimed that she needed to do further research to make sure that she had a valid claim that would not place her in a position whereby she might face a costs order. While it is perhaps commendable that Applicants "look before they leap" I do not think that this should be accepted by the Commission as a reason for delays. There was no evidence provided by Ms Rising as to exactly what research she had done. Further, Ms Rising appears to have proceeded with her application on the basis that having undertaken her research, she was in a position where costs would not be a risk. It was not clear how she had reached this conclusion or the basis on which it rested.

• [33] I should also address the issue of the advice - such as it was - provided by the FWC, the FWO and the AHRC. The Applicant claimed that such advice had been confusing and incorrect and that this had led her to make the first s.365 application notwithstanding that she had an AHRC matter on foot dealing with the same incident. Firstly, bodies such as the FWC and FWO do not provide legal advice to people and make it very clear that this is the case. As such, I do not accept that as a basic principle the sorts of considerations made with respect to representative error - errors made by a party's legal or industrial representative - are relevant. Secondly, there is no clear evidence of exactly what advice was provided and the context in which it was provided and so it is hard to say if indeed what was said to the Applicant - such as it was - was even incorrect. Further, having received advice from my Chambers as to her situation, the Applicant chose not to accept that advice in the first instance but rather to challenge it with a series of emails over a period of two days.

• [34] While the delay due to rejecting the advice from my Chambers and the delay occasioned by the period during which the Applicant claims she was researching the veracity of her claim occurred during a period whereby the application was already late, the combined period extends to essentially a week. This additional delay is in my view not insignificant, and I am not prepared to accept that the reasons for these delays are such that they should weigh in favour of a finding of exceptional circumstances.

• [35] While part of the total delay can be attributed to the internal processes of the FWC in allocating the matter to my Chambers, typically the FWC is prepared to allow more latitude where an applicant moves swiftly to correct any issues with their application and lodges a fresh application as soon as possible. Indeed, the Applicant herself notes case law supporting this proposition - see [79] - [81] below.

• [36] In summary, the delay in lodging this application can be attributed to the Applicant's failure to understand the implications of s.725 of the Act, leading her to initially lodge an application that fell foul of that section. Having been advised of this problem, the Applicant did not immediately seek to remedy the issue but chose instead to argue the point for approximately two days. Once the Applicant finally withdrew her initial application, she waited a further five days to lodge this application, claiming that this time was spent researching her case to ensure it was sufficiently robust so as not to attract a possible costs order. I do not accept that any of these three reasons ought to be considered as weighing in favour of a finding of exceptional circumstances. Rather, I find that they weigh against such a finding.

• [37] For completeness I will address one final issue. The Applicant claimed that there had been a four day delay between withdrawing her original application and lodging the present one. This is because she claims she had difficulties with the FWC website and could not lodge until the following day, being the fifth day. I am in the first instance accepting the FWC records which make it clear that the lodgment was on the fifth day. Secondly, even if it were only four days this would not make a difference to my view about the reason for the delay.

• [38] The Applicant submitted that she had taken extensive action to dispute the dismissal. She pointed to a number of emails she had sent directly to employees of the Respondents commencing on the day on which she was informed that the Respondent was not progressing with her employment, being 26 August 2024. The Applicant provided the FWC with copies of the emails exchanged between herself and Roopi Dhillon and Jacinta McQuade on that day. Without repeating all of the content, it is sufficient to say that the Applicant was challenging the employees of the Respondents with respect to the decision that she would not be allocated access to the worksite due to the information provided in her police certificate.

• [39] It is clear that the Applicant went into great detail about how she perceived the police check should be viewed and made it clear to the Respondents at 1:38pm (AWST) that she was intending to challenge the decision at the FWC. She provided the Respondents with further information on that day based on what she claimed was a conversation with the Western Australian Police Service and also asked that the decision made to exclude her be reviewed by another senior manager of the Respondents.

• [40] The Applicant's correspondence continued the following day with more information about her police check being provided to the Respondents in addition to submissions about why the content of the check should not be used against her. The Applicant also warned the Respondents again that she was intending to challenge their decision - albeit this time the warning foreshadowed an application to the AHRC.

• [41] In the first instance the Respondents reiterated their position that the Applicant had not been dismissed. However, it further submitted that I should view this matter as neutral in my considerations. It submitted that while the Applicant had taken actions to dispute its decision regarding her employment by lodging her first claim, this was in circumstances where she was aware of the time limitations for applications and the option to withdraw her AHRC application.

• [42] Previous decisions of the FWC have examined the issue of disputing a dismissal and have concluded that emphasis should be placed on actions disputing the dismissal directly with the employer and actions of which the employer was aware.[11] In this matter I am mindful that the Respondent does not accept that there was a dismissal. That being as it may, in deciding on whether exceptional circumstances exist in this case I find that I need to look at whether the Applicant has disputed the decision that has left her aggrieved.

• [43] I am satisfied that the Applicant has done so in quite emphatic terms. She has engaged directly with the Respondents to argue her case. She has sought further opinion - for example from the Western Australian Police - and presented this information. She has warned the Respondent that she will pursue the matter in a formal manner through the FWC and AHRC. She has lodged claims in both those jurisdictions. In terms of taking action to dispute the decision that has aggrieved her - whether it be a dismissal or not - there is in my view little else the Applicant could have been reasonably expected to do. On that basis, I find that this matter weighs in favour of a finding of exceptional circumstances.

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

• [44] The Applicant submitted that there was no appreciable prejudice to the Respondent. She submitted that the Respondents were well aware of her grievance against them from the very beginning of the process and also aware that she intended to pursue that grievance in a formal manner.

• [45] It appears that the Applicant is also seeking to rely on findings in Guest v Hills Holdings Ltd [2016] FWC 4751 (Guest) and Hill v Pilbara Manganese Pty Ltd [2013] FWC7257 (Hill) although I am uncertain as to how she intends these cases to apply. In both cases, the respondents delayed replying to correspondence from a dismissed employee who was seeking to engage with them to attempt to achieve reinstatement. The Commission in both cases accepted that these delays contributed to the employees failing to meet the time limit for lodgment of their applications - that is, they were considered as forming part of the reason for the delay. The Applicant's reference to these cases in the section of her submissions dealing with prejudice to the employer suggests that she is somehow seeking to link the notion of delayed responses to a lack of prejudice to the employer.

• [46] If this is the case, then I firstly note that in the cases cited the delays in correspondence were considered in the context of the reason for the delay, rather than the issue of prejudice to the employer. Secondly, in the cases cited the delays in responding to the dismissed employees' correspondence were lengthy - in Hill - and part of a deliberate strategy in Guest.

• [47] According to the timeline of emails set out in the Applicant's submissions, the exchanges went as follows:

26 August 2024 1:35pm Respondent emails Applicant advising (in effect) that she would not be employed.

26 August 2024 1:38pm A emails R requesting specifics in writing - no response.

26 August 2024 2:39pm A emails R advising she has received information from WA Police about her criminal record check - no response.

26 August 2024 3:17pm A emails R requesting review - no response.

26 August 2024 4:41pm A emails R providing fresh information and requesting a review - no response.

26 August 2024 5:44pm A emails R setting out her grievances - no response.

26 August 2024 9:36pm A emails R seeking to have her grievance escalated - no response.

27 August 2024 8:04am A emails R providing information regarding the status of her convictions - no response.

27 August 2024 9:45am A forwards certain of the previous emails to another employee of the respondent - no response.

27 August 2024 12:55pm A emails R seeking mediation - no response.

27 August 2024 2:13pm R emails A acknowledging previous emails and advising that it has considered the issues raised, does not believe it has acted inappropriately and wishing the A well in her future endeavours.

27 August 2024 Unspecified A emails R setting out her grievance - no response.

27 August 2024 3:08pm A emails R seeking basis of authority of author of R's email - no response.

27 August 2024 5:51pm A emails R raising further arguments in favour of her grievance - no response.

4 September 2024 9:57am A emails R again suggesting mediation - no response.

• [48] From the above it can be seen that the Respondent provided a response to the Applicant's allegations just over twenty-four hours after first request for a response. The response provided was in my view sufficiently clear in its intent that the Respondent considered the matter closed. Given this all occurred within one day of the Applicant being advised that her employment would not proceed, I do not regard the situation as being analogous to those in Guest or Hill. I should note that if it is actually the case that the Applicant is arguing the lack of responses should be considered as part of the reason for the delay, I reject that argument on the same grounds.

• [49] The Applicant also drew my attention to two other cases. The first, being Schatzschneider v Coho Property Pty Ltd [2022] FWC 292 involved a case where an applicant withdrew an unfair dismissal application that had jurisdictional problems and submitted - out of time - a general protections application. In that matter, the FWC found that prejudice to the employer was a neutral consideration. I note that in that case, which had some mitigating circumstances not present in the current matter, was one where the Respondent - unlike in this matter - made no submissions on prejudice.

• [50] The other case was Bickley v Talent International (Qld) Pty Ltd [2024] FWC 426 (Bickley). The Applicant's submissions with respect to the relevance of this case were limited to the following:

"Confusion with complexity comparisons"[12]

Bickley involved a labour hire employee who had named the host firm in his application rather than his actual employer and the argument revolved around whether the FWC should amend his application such that it named his actual employer. It does not appear to have any particular significant relevance in this matter.

• [51] The Respondent submitted that it had suffered prejudice by virtue of wasted time and costs associated with responding to the withdrawn s.365 application, filing responses to this application and dealing with various procedural issues and communications related to this application. It submitted that this should weigh against a finding to extend time. The Respondent further submitted that if the FWC was to find that there was an absence of prejudice, this should not count in favour of an extension but instead render this consideration neutral.

• [52] In Clarke v Service to Youth Council Inc Justice White noted as follows:

"SYC did not contend that it would suffer "real prejudice" by reason of the delay. It did point to the costs it would incur in defending the claim if the extension of time was granted. However, this is not a relevant prejudice, i.e. a prejudice which it would not have suffered if the proceedings had been commenced in time."[13]

Given this, I am not persuaded that the costs borne by the Respondent in responding to and dealing with this claim can be said to be a prejudice.

• [53] This leaves the argument that dealing with the previously withdrawn claim imposed a prejudice on the Respondent. I note that an inspection of the internal FWC file for that claim shows that the Respondent - apart from lodging its Form 8A - was not required to lodge any submissions or provide any responses to the FWC. While the Respondent's representatives no doubt perused the correspondence between the Applicant and the FWC, the Respondent's involvement was minimal. As such, I do not accept that there is any significant prejudice to the Respondent that can be said to arise from dealing with that claim.

• [54] However, I agree with the submission of the Respondent that an absence of prejudice to it does not weigh in favour of granting an extension of time. As was stated by the Full Bench in Ozsoy v Monstamac Industries Pty Ltd:

"Ground 9 was an assertion that the absence of prejudice should have been found to be a positive consideration and not a neutral one. It identifies no error. The absence of a prejudice to the employer is usual in extension of time matters and does not provide a positive basis for finding exceptional circumstances warranting an extension of time for lodgement."[14]

• [55] Given this, I have formed the view that this consideration should be treated as neutral in my consideration of an extension of time.

• [56] It is not unusual in determinations of extensions of time for the FWC to regard this matter as neutral, on the basis that until the evidence is given and examined it is too difficult to make an assessment. In the present matter, I advised the parties that I had concerns about whether or not the Applicant actually became an employee of the Respondent. As such, I directed them to make submissions on that issue. Further, the issue was canvassed at some length at hearing. Given this, I take the view that it is possible to make an assessment of whether the Applicant was actually an employee.

• [57] In her submissions, the Applicant essentially claimed that she had been offered and had accepted employment, and when the totality of her circumstances were examined, she had actually commenced her employment. The Respondent's submissions were that the Applicant had progressed through its employment processes to a certain point - being a point prior to being actually offered employment - but had not been offered employment. Given that no employment had been offered, and based on the available evidence that no work had actually been performed, the Respondent submitted that no employment relationship had been established.

• [58] With respect to the present matter, it is my intention to continue to adopt the long-established principle, set out by the Full Bench in Khayam v Navitas English Pty Ltd (Navitas), that for the purposes of the meaning of dismissed as per s.386 of the Act:

"The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship_, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment."[15]_ (emphasis in original)

• [59] I further adopt the principle set out in Kelly v Melba Support Services (Melba) regarding the distinction between an employment contract and an employment relationship. In that matter, the Full Bench stated as follows:

"Whether an employment relationship exists is a question of fact. Unless and until an employment relationship exists, it cannot be terminated.

Although there can be no employment relationship without a contract of employment, a contract of employment may come into existence before an employment relationship is formed. For example, an employer and an employee may enter into a binding contract for the employee to commence employment with the employer in, say, six months' time. If the offer of employment is withdrawn after the contract has been made but before the employment commences, the employer may be liable for breach of contract, but the employment relationship will not come into existence."[16] (citations removed)

• [60] I note that the principle set out above is consistent with the findings of Justice Katzmann in Broadlex Services Pty Ltd v United Workers' Union. (Broadlex) In that case her Honour stated as follows:

"Nevertheless, there is a difference between the employment relationship and the contract of employment. A contract of employment can come into existence before the employment relationship is formed and an employer who withdraws an offer of employment after it has been accepted or an employee who resigns before the starting date can be liable for breach of contract...Furthermore, a contract of employment can include obligations, such as a restraint of trade covenant, which continue after the employment relationship has come to an end."[17] (citations removed)

• [61] Given these principles, I have decided that it is not necessary for me to determine whether or not an employment contract was indeed offered by the Respondent or whether such contract was accepted by the Applicant. The issue for determination is whether or not an employment relationship was established. In the absence of such relationship it is clear that no dismissal as contemplated by the Act can occur.

• [62] The Applicant chose to cavil with the findings in the cases above and suggested - in the case of Melba - that the finding was:

"...conceptually misleading and a statement marked with complexity to the point that the narrative should be refrained from and a view returned to the "multifactored approach" to assess and examin (sic) the employment factors, where it's contentious."[18]

• [63] In essence, the Applicant argued that the test of whether she was an employee should rely instead upon the recently inserted definition of employee in s.15AA of the Act, whereby the FWC is required to have regard for the totality of the relationship between two parties. That section is set out as follows:

"15AA Determining the ordinary meanings of "employee" and "employer"

(1) [Determining ordinary meanings of employee and employer] For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.

(2) [Real substance, practical reality and true nature of relationship] For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person:

(a) the totality of the relationship between the individual and the person must be considered; and

(b) in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.

Note: This section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2."

• [64] At hearing I explained to the Applicant that, as per the note appearing at the end of the section, this definition was inserted to overcome decisions of the High Court which stressed the primacy of the written contract as being the determinant of whether someone was an employee, or in the alternative a contractor. It was not inserted to be a test of whether someone was an employee, or in the alternative not an employee and having no relationship with the employer whatsoever. It was a test to be applied to a relationship that was on foot to decide whether it was an employment relationship or a contractual relationship. I noted that the insertion of this provision, evidenced an intent to return to a process of using a global test of the relationship to see whether it had the features of employment or alternatively the features of a contractor, rather than relying on the only the written provisions of a contract to decide a person's relationship.

• [65] The Applicant did not accept this to be the case and argued that the specific provision in the Act did not itself restrict the test to whether a person was an employee or in the alternative a contractor. Instead, she argued that it required the FWC to assess the totality of the relationship between two parties to determine if a person was an employee - presumably for the purposes of the Act - and the task for the FWC in this case was to determine whether she was an employee. I am not persuaded that this is the case.

• [66] However, it is my view that if it was indeed the case that a global test was required to be applied to determine whether a person was an employee or in the alternative a person with no relationship to the employer, the test would logically be directed at whether the person had an employment relationship or not. It would not be to determine whether the person had an employment contract. It is clear from the findings in Navitas, Melba and Broadlex that the dismissal provisions of the Act are directed to the employment relationship, not the employment contract. Further, a person can have an employment contract and not have an employment relationship and as a consequence have no protections from dismissal under the Act. There is nothing in my view to be found in s.15AA of the Act that in any way disturbs these principles.

• [67] The question then arises as to what particular tests one might employ to determine if someone is an employee as opposed to someone with no employment relationship with the employer. Most of the usual tests that are applied to determine whether someone is a contractor - or in the alternative an employee - are clearly of no assistance, requiring as they do the FWC to assess how the parties have been conducting their affairs over the period of engagement. In this instance, a question such as is the Applicant running her own business with the potential to generate goodwill appears irrelevant to determine if an employment relationship has or has not commenced. So too the issue of whether PAYG tax has been deducted, as no payments have been made.

• [68] The Applicant might argue that if I were to apply these tests to her prospective engagement with the Respondent, the answers would be no, she would not be running her own business and yes, PAYG would be deducted. These would then be factors that suggest she would be an employee. The important distinction is "would be". I think there is little doubt that if the Applicant had commenced working for the Respondent, then it would be the case that she would be an employee and not a contractor. However, such tests are not relevant in determining if she had indeed commenced an employment relationship with the Respondent.

• [69] Essentially, it seems to me that the question boils down to whether or not the person has commenced employment. This is consistent with previous findings of the FWC.[19] Some obvious markers of a person having commenced employment would be that they have attended the workplace and been paid - or be owed payment - for work they have completed. Perhaps another important test might be whether they can be said to be accruing "service" for the purposes of section 22 of the Act. The concept of service takes on particular importance with respect to a number of entitlements under the Act, including the minimum employment period required to be served before a person becomes eligible for protection from unfair dismissal.

• [70] Relevantly, Section 22 of the Act provides exceptions to what counts as service and unpaid leave is one such exception. As such, a person who commences employment, works for three months, has one month off on unpaid leave and then works for the next two months does not have six months' service, but rather five months. Given this, it would be passing strange that a person who had an employment contract but had not yet attended the workplace or been paid should be regarded as accruing service prior to such attendance or payment.

• [71] In the present matter, it is not disputed that the Applicant has not attended the actual workplace or been paid. On that basis, it is difficult to see how she could be regarded as having established an employment relationship. The Applicant claimed that she had been required to complete a number of forms and read a number of policies. As she noted, there was no benefit to her in reading those policies other than as an employee of the Respondent. As such, these tasks should be regarded as work for the Respondent. However, at hearing the Respondent elicited from the Applicant concessions that she had not been instructed to complete these tasks or been paid for performing the tasks, and there is no evidence to suggest that she should or would be paid.

• [72] It is not unusual for employees to be required to complete various forms prior to commencing employment. It is also not unusual for employees to be provided with policies and told that they will need to familiarise themselves with those policies. However, I do not think that either of those activities can be reasonably said to establish an employment relationship by virtue of the employee performing work. It is usual - and the case here - that such activities are unpaid and taken to be part of a process of "onboarding" an employee. I note that I draw a distinction between these activities and a person being required to attend the workplace for pre-employment training. I would regard such training as being part of an employee's work and would count as service for the purposes of s.22 of the Act.

• [73] Given that the Applicant has not performed any work entitling her to payment and has not even attended the actual workplace I am satisfied that she has not established an employment relationship with the Respondent. Whether or not she had a contract is unnecessary for me to determine and I make no comment on that issue. However, given that she did not have an employment relationship with the Respondent she cannot therefore claim that she has been dismissed within the meaning provided in the Act. Without seeking to belabour the point, I am satisfied that the Applicant was a potential employee who was denied employment rather than an employee who was dismissed. As such, I am satisfied that her claims lacks merit on the basis that the FWC would have no jurisdiction to deal with a dismissal application from a person who was not an employee.

• [74] I should comment on the issue of whether or not the policies called out by the Applicant are workplace instruments as contemplated by s.341 and as defined in s.12 of the Act. I had asked the parties to provide submissions on this because it occurred to me that the merits of the claim might be impacted by a finding that the relevant policies did not meet the definition of workplace instrument. While I have considered the - conflicting - submissions made by the parties, I find that I am not required to make a judgment on that particular issue given my finding at [73] above.

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

• [75] In essence, the Applicant submitted that this matter should weigh in favour of an extension of time. The Applicant submitted that I should be mindful of the finding of Commissioner Durham in Bickley v Talent International (QLD) Pty Ltd (Bickley). In that matter, the Applicant had incorrectly named his employer in his s.365 application, naming the host employer rather than the labour hire provider which was his actual employer. He was seeking to have the FWC amend his application to name the correct employer. Mr Bickley claimed that

"...his employment relationship was "complex or nuanced" which may have contributed to confusion regarding his legal rights, especially in circumstances where his employment was "mediated or facilitated by the QPS". Further, he submitted that that he did not fully comprehend "the legal implications or nuances of naming the respondent in a legal proceeding", and the involvement of multiple parties in the employment process influenced his perception of the relationship."[20]

"...case involves not only multiple parties but what I allege is multiple breaches of laws or nuances of laws and subject matters that created complexity in dealing with seperate (sic) parts of the issue and as to what actions I had taken or was allowed to take or the perceived ability I had to take such. I argue that the states in which the disputes were also compounded the complexity being that I allege it was outside of my knowledge as to whether complaint was in fact made in AHRC a process Ive (sic) never undertaken before. I submit that withdrawal of my dispute to AHRC was actually unnecessary but was given before such stage of complaint having been made where application doesnt (sic) assume a proceeding towards a court."[21]

• [77] The Applicant also noted the finding in Bickley - which drew on the findings in Mihajlovic v Lifeline Macarthur [2014] FWC 1871 - that the amendment of the application as sought would avoid inconvenience and cost to the parties. She proposed that such considerations were relevant in the present case.

• [78] The Applicant also cited Guest as being a case that was relevant in that it was a scenario where a failure to respond to dispute resolution was found to be deliberate and designed to frustrate both the employee and the processes of the Act. In that matter the FWC found that such an approach was out of the ordinary course and uncommon and allowed an extension of time.

• [79] The Applicant further cited the findings of Deputy President Gostencnik in Green v Bilco Group Pty Ltd (Green). She submitted that this was a

"(s)imilar case as to delay caused by knowledge where initial application filed in time but wherein I contend I have further merits for extension of time application to be granted where I also argue jurisdiction issues with the complexity of my situation and in that I have undertook to make such amendments with withdrawal and fresh application to make clear my dispute and make open and transparent argument available to the other party as well..."

• [80] The Applicant noted in particular the Deputy President's comments as follows:

"Whilst the period of delay would have been shorter had the Applicant made the general protections application by email instead of post, he nonetheless acted promptly once told that the UD application was beyond jurisdiction. In the circumstances I am persuaded there is an acceptable explanation for the delay and this weighs in the Applicant's favour."[22]

• [81] She also noted that in Green the Deputy President found that the applicant had taken steps to dispute his dismissal prior to lodging his application. Finally, the Applicant directed me to the findings of Senior Deputy President Drake in King v Hartway Galvanizers (King). In that matter the Senior Deputy President:

"...was satisfied that Mr King had done his best to research his entitlements, a task outside his usual skill level. When advised of the section pursuant to which he should have proceeded he attended to lodgement immediately."[23]

• [82] The Applicant drew a parallel between the actions of Mr King and her own actions, which she described as being taken with speed to remedy any fault.

• [83] In its submissions, the Respondent argued that this matter should weigh against a finding of exceptional circumstances. It cited the decision of Deputy President Boyce in Ko v Medical Technology Association of Australia Ltd [2024] FWC 1530 (Ko). In that matter the Deputy President found that the applicant's explanations of the delay in lodging his application - essentially being uncertainty about jurisdiction - were insufficient to explain that delay and weighed against a finding of exceptional circumstances.

• [84] The Respondent also cited the findings of the Full Bench in Webb v Minterra [2021] FWCFB 6076 where the Bench upheld the original decision of Deputy President Mansini who declined to grant an extension of time. Of particular relevance was the Full Bench's apparent acceptance of the Deputy President's finding as follows:

"I am satisfied that Mr Webb was not completely ignorant as to the timeframe for filing. By his own evidence, during the period 13 to 21 April 2021, Mr Webb was concerned about the deadline for filing and was somewhat familiar with the Commission's jurisdiction having made the earlier claim. Even if he did not receive the necessary guidance from his representative, and did not understand the guidance of the Commission's staff conciliator on 24 March 2021, then there are a range of publicly available sources of information from which Mr Webb could have obtained appropriate guidance in this respect."[24]

• [85] In her reply submissions, the Applicant rejected the Respondent's reliance on the findings in Ko. She submitted that the circumstances in Ko were clearly distinguishable from her own situation. Specifically, she noted as follows:

"The applicant was affected by multifactoral (sic) circumstances not just one particular situation and thus the respondent raising issues of case law based on one circumstance in each of those cases either is not representative of the fact that the applicant was facing all such issues - This was multifactoral (sic) not

The applicant was proceeding on one type of application

The applicant was affected by complexity of issues raised to different departments in which the other departments couldnt (sic) act on of which made separate issues

The applicant claimed to have that information misrepresented to her and thus causing challenges outside of her normal skill and in which she was expeditiously to such responding where the responses are in-depth involving absolutely numerous case law examples

The applicants (sic) steadfastness to provide response and take action and seek resolve should see those positive case law provisions for extension of time enacted as per her submission paragraphs 50 to 56. The Situation was uncommon and unusual and unforseen (sic) thus well in the definition of exceptional circumstance."[25]

For completeness I note that in the above quote from the Applicant's submissions I have regarded references to "the applicant" as references to the Applicant herself.

• [86] In Morphett v Pearcedale Egg Farm, Deputy President Gostencnik made the following oft-quoted observation:

"Turning to the question of fairness as between the Applicant and other persons in a similar position, cases of this kind will generally turn on 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 relate to matters currently before the Commission or matters which had been previously decided by the Commission."[26]

• [87] The Applicant drew my attention to four separate cases she claimed ought to be considered as analogous to her own matter. For the following reasons, I am not persuaded that I should attach any weight to the findings in those cases. The first case, Bickley, involved an application to amend the name of a Respondent pursuant to the FWC's powers under s.586 of the Act. The considerations in such a matter are appreciably different to the considerations in a case involving an application for an extension of time and as such I can see no reason to draw upon the findings in that case.

• [88] The second case, Guest, is one that I have addressed at [48] above and for the same reasons outlined there, I do not believe the situation to be similar. As such, I am not persuaded to give any weight to the findings in that case. The third case is Green. The Applicant seeks to draw parallels between that case and her matter. However, as Deputy President Gostencnik observed, the applicant in Green acted swiftly to remedy a situation after being advised that there were jurisdictional impediments to his original application. The Applicant in this matter has not behaved in a similar manner.

• [89] On being advised that there were issues with her application arising from s.725 of the Act, the Applicant did not immediately withdraw her application - and the application to the AHRC - and submit a fresh application. Instead, she sent a series of emails over the following two days seeking to argue that she had not in fact made an application to the AHRC notwithstanding the fact that she had indeed lodged a complaint in writing with that body. Having finally decided to withdraw her application, the Applicant then waited a further five days before lodging the present application.

• [90] Given this, it is difficult to see how her situation could be regarded as similar to the situation found in Green. As such, to the extent that there are any similarities they are marginal, and I do not regard the finding in Green as assisting the Applicant in this matter. The final case cited was King which was again a case where the applicant had acted swiftly to remedy an identified problem. As with Green, I do not accept that an analogy can be drawn with the situation of the Applicant in this case.

• [91] With respect to the cases cited by the Respondent, I am not persuaded that the situations therein are sufficiently similar to the present circumstances such as to suggest I should regard the outcomes in those matters as precedents for my decision. As such, I am satisfied that this particular matter is one that should be regarded as neutral in my consideration of exceptional circumstances.

• [92] I have considered the matters set out in s.366(2) of the Act and made an assessment of how each of them should be weighed in terms of establishing whether or not exceptional circumstances exist to justify an extension of time. As I found, the reason for the delay and the merits of the application weigh against a finding of exceptional circumstances. The actions taken by the Applicant to dispute her dismissal weigh in favour of such a finding, while the issues of prejudice to the Respondent and fairness between the Applicant and other persons are neutral.

• [93] Given this, on balance I am satisfied that the circumstances in this case are not exceptional and, on that basis, there should be no extension of time allowed. As a consequence, the application must be dismissed and an order to that effect will be issued.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]

[2] See Applicant Submission on Extension of Time paragraphs 12 - 18 pages 3 - 4

[4] Wood v WA Composts Pty Ltd [2013] FWC 5344 at [10]- [14]

[5] Porter v Country Cranes t/a MIA Crane Services [2020] FWC 2300 at [18]

[6] See Respondent's Submissions paragraph 25 page 5

[8] See Applicant Submission on Extension of Time paragraph 13 page 3.

[9] See Applicant Submission on Extension of Time paragraphs 17-18 page 4.

[10] See https://www.fwc.gov.au/multiple-applications-relating-dismissal

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

[12] See Applicant's submission on extension of time page 27

[13] Clarke v Service to Youth Council Inc [2013] FCA 1018 at [31].

[14] Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [38]

[15] Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75]

[16] Kelly v Melba Support Services Australia Ltd [2021] FWCFB 4845 at [20] - [21]

[17] Broadlex Services Pty Ltd v United Workers' Union [2020] FCA 867

[18] See Applicant's submission on merits page 7 paragraph 24

[19] For example see Corner v Skycity Adelaide Pty Ltd [2011] FWAFB 955

[20] Bickley v Talent International (QLD) Pty Ltd [2024] FWC 426 at [7]

[21] See Applicant's submission on extension of time page 30 paragraph 52

[22] Green v Bilco Group Pty Ltd. [2018] FWC 6818 at [17]

[23] King v Hartway Galvanizers [2016] FWC 7841 at [20]

[24] Webb v Minterra Pty Ltd [2021] FWC 6066 at [46]

[25] See Applicant's reply submissions pages 5-6 paragraph F

[26] Morphett v Pearcedale Egg Farm [2015] FWC 8885 at [29]

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