Zhang v Hilltop Meats Pty Ltd [2025] FedCFamC2G 2133

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

1. Before the Court is an application made pursuant to the Fair Work Act 2009 (Cth) (Act) on 26 August 2025 (application). A "Form 2 Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection" (Form 2) was filed at the same time as the application (originating documents).
2. Pursuant to s 370(a)(ii) of the Act, an application to this Court is required to be made within 14 days after the issue of a certificate pursuant to s 368 of the Act (certificate). The certificate in this case was issued to the applicant on 5 March 2025 (see [9] below). By reference thereto, the application was made approximately 5 months out of time. Accordingly, the applicant requires an extension of the time in which to commence these proceedings pursuant to s 370(a)(ii) of the Act. That interlocutory question is the subject of these reasons for judgment.

1. Unless otherwise indicated, the following background does not appear to be in dispute.
2. On 5 November 2024, the applicant commenced employment with the respondent as a Quality Assurance Supervisor.
3. By Part G of the applicant's Form 2, he appears to make two general protections claims pursuant to ss 340 and 351 of the Act (respectively). The applicant says that the respondent terminated his employment for a proscribed reason.
4. The first claim appears to be an assertion that he exercised a workplace right being the making of an inquiry in relation to his employment. The inquiry is said to be as follows:

On 11 December around 12.00 pm, I asked QA officer if there is any gay at slaughter floor because I work 11 hours a day, back to motel, still working and no friends here. I feel very stressed, and I know no-one at Young. Maybe I start dating, is good solution for it.

1. The second claim appears to allege that adverse action was taken against the applicant by the respondent because of the applicant's sexual orientation.
2. By contrast to the applicant's assertions, the respondent alleges the following about the circumstances leading to the termination of the applicant's employment:

(a) on 19 November 2024, the applicant was spoken to by his supervisor and told that he must not falsify records in circumstances where it is alleged he had done so;

(b) on 27 November 2024 the applicant was spoken to by the General Manager of the respondent and his supervisor to notify him that he was allegedly not meeting expectations;

(c) on 4 December 2024, the applicant was issued with a written warning about his performance;

(d) on 11 December 2024, three Quality Assurance Assistants, each of whom reported to the applicant made complaints about him on the basis of allegedly inappropriate behaviour on his part, predominantly comprised of statements made by him of a sexual nature to those colleagues; and

(e) later on 11 December 2024, the applicant's employment with the respondent was terminated.

1. On 12 December 2024, the applicant made an application to the Fair Work Commission (FWC) for general application involving dismissal (FWC application), which application the respondent defended. On 5 March 2025, a conciliation was held in respect of the FWC application, which did not resolve the matter. Accordingly, following the unsuccessful conciliation, the FWC issued the certificate.

1. As noted at [1] above, these proceedings were commenced on 26 August 2025 by an application which was filed together with a "Form 2 Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection" (originating documents). The originating documents were filed 160 days (5 ¼ months) after the end of the 14-day period prescribed by s 370(a)(2)(ii) of the Act. Annexed to the Form 2 was the certificate.
2. The proceedings first came before me on 24 September 2025 for directions on which occasion I made the following orders (emphasis in original):
   1. The respondent must file and serve a Notice of Address for Service in accordance with r 10.21 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) on or by 4:00pm on 1 October 2025.
   2. Until further order, or until a Notice of Address for Service is filed for the respondent, service of any documents in these proceedings upon it can be effected by sending a copy to each the email address: ersel@morganenglish.com.au.
   3. The proceedings are listed for a hearing on the preliminary question of the extension of time for the bringing of the application (extension application), before Judge Given at 2.15pm on 29 October 2025 at court 13.1 level 13, 80 William Street, Woolloomooloo.
   4. The applicant must file and serve written submissions and any Affidavit evidence in respect of the extension application by 4:00pm on 8 October 2025.
   5. The respondent must file and serve written submissions and any Affidavit evidence in respect of the extension application by 4:00pm on 22 October 2025.
   6. Liberty to apply on 2 days' notice.
3. On 29 October 2025, the proceedings came before me for the interlocutory hearing on the question of whether the time in which to bring the application should be extended. The applicant was unrepresented but assisted by an interpreter in the Mandarin language, arranged by the Court. The respondent was represented by Counsel.

1. For the applicant the following Affidavits, each made by him, were read without objection:

(a) an Affidavit made on 4 October 2025 (applicant's Affidavit); and

(b) an Affidavit of service made on 16 October 2025 (Affidavit of service).

1. The applicant also sought to rely on a written submissions filed by him on each of 6 October 2025 (first written submission) and 26 October 2025 (second written submission). The respondent objected to part of paragraph 1 of the second written submission, to the extent it disclosed aspects of the FWC conciliation. Accordingly, the Court has not had regard to the second half of the first sentence of the second written submission.
2. A document which the applicant had uploaded to the Court file in advance of the hearing of the application, which was headed "LF HRW Assessment - NSW" was tendered by him, without objection, and marked Exhibit "1A".
3. For the respondent was read an Affidavit of Leah Maree Wilson affirmed on 22 October 2025 (Wilson Affidavit) also without objection. Ms Wilson is a solicitor in the employ of the respondent's solicitor. Written submissions were also filed for the respondent, as directed.
4. Neither the applicant, nor Ms Wilson, was required for cross-examination.

1. In Xue v ALDI Foods Pty Ltd [2025] FedCFamC2G 911, I summarised relevant principles in respect of extensions of time in cases such as the instant case, as follows at [18] to [22]:[1]

Extension of time principles

18. Section 370 of the Act relevantly provides that:

(1) A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:

(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days.

19. The effect of sub-s 370(a)(ii) is that, in circumstances where the application is filed outside the 14-day time limit, the Court has a discretion to extend time for the bringing of an application under s 365 of the Act.

20. Section 370 of the Act also contains the following note:

Note: For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.

21. The decision of the Industrial Relations Court of Australia referred to in the notation to s 370 of the Act, Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (Brodie-Hanns), outlines the relevant principles which apply when the Court is considering whether to grant an extension of time to an applicant who has filed an application outside of the 14-day time limit prescribed by s 370(a)(ii) of the Act. The following principles outlined in Brodie-Hanns at 299 by Marshall J, whilst not intended to be necessarily binding or exhaustive,[2] act as a helpful guide to the criteria to be applied:

1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.

22. The Court, in exercising its discretion to extend time, may consider any other matters it considers relevant and which the parties raise in support of, or in opposition to, the request for an extension of time: see Clarke v Service to Youth Council Incorporated [2013] FCA 1018 per White J (Clarke).

1. The body of the applicant's Affidavit says, inter alia, the following:

1. I affirm that all information provided in written submission statement of events are true and accurate to my best effort.
2. I affirm that all timeline is based on my memory and time code of relevant emails.
3. By these statements the applicant appears to seek to adopt the content of his first written submission as his evidence explaining his failure to commence in time, which can be summarised as follows:

(a) following the unsuccessful conciliation and issue of the certificate by the FWC on 5 March 2025, the applicant commenced preparing his application to this Court on 12 March 2025;

(b) the applicant had scheduled an examination for a forklift licence for 18 March 2025 (forklift exam). He says the forklift exam required extensive study and required that he achieve 95% correct in order to be given a passing grade so as to obtain the forklift licence;

(c) the applicant was unexperienced in the preparation of the originating documents, and this resulted in extensive correspondence with the Court Registry between 14 and 24 March 2025 in order to regularise those documents so that they could be accepted for filing. None of that correspondence is in evidence;

(d) upon being told of the small claims process by the Registry, the applicant instead decided to pursue an application of that kind, in respect of which he corresponded further with the Registry from 24 March 2025 to 10 April 2025 and commenced a proceeding of that kind (small claims proceeding). No such correspondence in this regard is in evidence either;

(e) the applicant sought, but was unable to obtain, legal advice from community legal services in this time;

(f) on 10 June 2025, the applicant was advised that "small claim court did not have jurisdiction to rule the case, grant the applicant one month to get legal advice."[3]

(g) on 8 August 2025, the small claims proceeding was dismissed;

(h) the applicant spent a month and $440 to find, and engage, "a commercial lawyer" to review certain parts of his Form 2;[4]

(i) the applicant was aware of the 14 day time limit;[5]

(j) the applicant ultimately accepts that it was his responsibility to commence the proceedings correctly and within jurisdiction.

1. By the second written submission (which, by contrast, has not been formally adopted by the applicant's Affidavit), the applicant augments the above explanations to additionally say that:

(a) following the conciliation in the FWC, the applicant had decided he did not wish to pursue his case further. Then his father came to Australia suddenly for 4 days;

(b) on 10 March 2025, the applicant changed his mind and felt he could return to work, so he then "urgently booked forklift exam and did not noted (sic) the time clash with this case"; and

(c) he started work preparing the documents for proceedings in this Court on 11 or 12 March 2025.

1. From Exhibit "1A", the following can/cannot be discerned:

(a) there is no date on the document[6] to indicate when the applicant first booked the forklift exam;

(b) the email suggests that while an initial booking for the forklift exam has been made, it may or may not yet have paid for; and

(c) further confirmation of the booking was still to be forthcoming.

1. In terms of the delay and his explanation/s for it, the applicant made brief submissions at hearing to further his explanation about his election to commence the small claims proceedings. The applicant again claimed to have followed advice given to him by the Registry. He appeared to acknowledge, with the benefit of hindsight, that information given to him by the Registry as to various options he might have had was neither legal advice, nor a recommendation to him. There is no evidence before me as to the specifics of any correspondence or advice such that the Court could be satisfied the applicant was in any way misled or encouraged to pursue the small claims proceedings. In the absence of evidence, and given the applicant's acknowledgment that he was aware of the time limit (see [20(j)] above) and that it was his responsibility to inform himself as to the appropriateness of the proceeding[7] he pursued,7 the commencement of the small claims proceedings should be accepted as having been an election on his part, in preference to commencing the present action within time.
2. In respect of the forklift exam component of the applicant's explanation, there is insufficient evidence before me to indicate whether this was a long-standing prior engagement the applicant had. It is not possible to discern when it was booked, or even whether it was confirmed. If it had been booked well in advance, the applicant has not explained why he did not perhaps seek to reschedule it if it was going to hamper his ability to prioritise a time-sensitive application to the Court. If the forklift exam had only been booked relatively recently by reference to the date of the conclusion of the FWC proceedings, it would have been a somewhat more remarkable prioritisation in those circumstances. Even giving the applicant the benefit of the doubt that the forklift exam was a long-standing confirmed arrangement, it does not adequately explain why he could not have commenced the proceedings in time.
3. I am not satisfied that the applicant's explanation for having failed to commence these proceedings in time is particularly persuasive, in circumstances where it is well established that the longer a delay, the more persuasive the explanation for it needs to be: see Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] per Wigney J. The period of delay in this case is more than 5 months. Referable to the period in which the application was required to be made, the delay is not inconsiderable. In that context the explanation and the period of delay each weigh against time being extended.

Action taken by the respondent to contest the termination

1. The applicant made his FWC application promptly. However, his actions thereafter are detailed above in respect of his explanation for delay and as already discussed, were an election to pursue a difference cause of action. This lack of relevant action also weighs against time being extended.

1. In terms of prejudice, if the time to make the application to this Court were not extended, the applicant's proceedings will be at an end.
2. If time were to be extended, the respondent says that it would be prejudiced in circumstances where two salient witnesses are no longer in its employ.[8] The respondent says that, had the applicant brought the instant application within the requested 14 day period, the situation in relation to those witnesses may not have been one which it faced. Further, the respondent says that in circumstances where the subject matter of the small claims proceeding was an alleged underpayment of wages, it was therefore not progressing the taking of witness statements in a general protections context, such that its evidence-gathering ability has been adversely affected by the applicant's election to pursue a different claim, which would also prejudice it in these proceedings if time were extended.
3. As such there, there is relative prejudice to each party depending on the possible contingent outcomes. Accordingly, I am satisfied that the question of prejudice weighs neutrally, if not slightly in favour of time being extended. However, that is only the case if the merits of the applicant's claim are sufficiently strong. If not, then the prejudice to the applicant in being closed out of proceedings which lack a reasonable prospect of success, even at an impressionistic level, cannot be said to be significant and the question of prejudice would tend in favour of time not being extended. This factor will be revisited again after the assessment of merits.

1. The respondent points to the same matters detailed above in respect of prejudice as also informing the question of fairness. I accept that submission and would repeat my observations from the preceding paragraph in respect of this factor also.

1. The applicant alleges a breach of s 340 of the FW Act. Section 340(1) relevantly provides:

Protection

(1) A person must not take adverse action against another person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4 - 1).

(2) A person must not take adverse action against another person (the second person ) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.

Note: This subsection is a civil remedy provision (see Part 4 - 1).

Meaning of workplace right

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee--in relation to his or her employment.

1. The alleged inquiry the applicant says he made which was an actuating reason for the termination of his employment is set out at [6] above.
2. In the recent decision of Xu v Servants of Jesus Community Pty Ltd [2025] FedCFamC2G 1369, Judge Manousaridis said the following about the making of an inquiry[9] (footnotes omitted, original emphasis):

Complaint or inquiry.

43. The Full Federal Court recently explained the notion of "complaint" for the purposes of s 341(1)(c) of the FW Act as follows:

In the context of s 341(1)(c), the term "complaint" connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: Cummins South Pacific at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding of fault: Shea v TRU energy at [579]-[581]; Cummins South Pacific at [13] per Dodds-Streeton J. Her Honour continued, at [626]-[627], by saying that it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether or expressly or implicitly, that the recipient at least take notice of, and consider, it. The characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.

The distinction between a complaint and a mere request for assistance had been made in earlier authorities: Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99; (2005) 144 FCR 347 at [36]-[37]; and Hill v Compass Ten Pty Ltd [2012] FCA 761; (2012) 205 FCR 94 at [48]. It is possible that some requests for assistance may be able to be characterised as "inquiries" for the purposes of s 341(1)(c) (for example, an inquiry as to whether the recipient is able to provide the requested assistance) but it was not suggested that a characterisation of that kind was appropriate in relation to any of the appellant's alleged requests or inquiries.

44. The ordinary meaning of "inquiry" is the act of seeking information about or concerning something.

"Is able to"

45. There has been a divergence of views among the Judges of the Federal Court of Australia about whether the expression "is able to" imports a requirement that an ability to make a complaint or inquiry must be "underpinned by an entitlement or right". The High Court, however, appears to have settled that question in Qantas Airways Ltd v Transport Workers Union of Australia, where the plurality construed "is able to" in s 341(1)(c) of the FW Act without reference to any "entitlement or right" to make a complaint or inquiry. The plurality said:

The words "is able to" in s 341(1)(b) and (c), while not words of limitation, necessarily indicate that circumstances have come into existence in which the person has a present capacity to exercise a power or freedom. These powers and freedoms are specifically identified in s 341(1)(b) (read with s 341(2)) and in s 341(1)(c).

46. The consequence of the construction the plurality in Qantas gave to the expression "is able to" is that it is not necessary for an applicant who relies on the workplace right provided for in s 341(1)(c)(ii) of the FW Act to allege he or she had some underlying entitlement or right to make a complaint or inquiry in relation to his or her employment; all that is required is that "circumstances have come into existence in which the [applicant] has a present capacity to exercise a relevant power or freedom", that freedom or power, in relation to s 341(1)(c)(ii), being the freedom the applicant has to make a complaint or inquiry in relation to his or her employment. This appears to be the view Rares ACJ and Katzmann J expressed in Construction, Forestry, Maritime, Mining and Energy Union v Quirk, although Colvin J may have held a different view.

"In relation to"

47. In Henry v Leighton Admin Services Pty Ltd I considered the construction of the expression "in relation to" as used in s 341(1)(c)(ii) of the FW Act, and concluded that a person will make a complaint or inquiry "in relation to" his or her employment if the complaint is about his or her employment rights or obligations, or "about a subject that may prejudice the person in his or her employment".

1. Even taken at the most impressionistic level, I am not satisfied that the applicant's inquiry as to whether he might find homosexual companionship among his fellow abattoir workers for recreational purposes, was an inquiry in relation to his employment as that concept is understood in the context of the Act. As such, it is difficult to see how the applicant could have any reasonably arguable case as presently pleaded in respect of s 340 of the FW Act.
2. The second aspect to the applicant's claim appears to be an allegation brought pursuant to s 351(1) of the FW Act, which relevantly provides:

Discrimination

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.

1. As noted at the outset of these reasons, the applicant seems to be alleging that adverse action was taken against him by the respondent because of his sexual orientation. However, when regard is had to the preliminary evidence for the respondent on this issue,[10] it reveals that the applicant has selectively ignored the multiple misconduct warnings which led to the termination of his employment. The allegations which led to the warnings related to behaviour and inappropriate conversations of a sexual nature, instigated by the applicant. I am satisfied that even at an impressionistic level, the allegation lacks a reasonable prospect of success to even engage the reverse onus.
2. Accordingly, the merits of the application are not such as to warrant time being extended such that they can be ventilated at a trial.

1. In circumstances where I have concluded that the merits in the instant case also do not weigh in favour of time being extended, then having regard to the earlier observations about prejudice and fairness, these factors now also tends against an extension of time (see [29] above).
2. Accordingly, none of the relevant factors tend in favour of time be extended. I am not satisfied that the significant extension sought in which to bring the application the subject of these proceedings should be extended. As such, the application for an extension is refused and the proceedings are therefore dismissed.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

[1] The same defined terms will be adopted for these reasons for judgment also

[2] Transport Workers Union v School Bus Contractors [2011] FMCA 28; (2011) 246 FLR 430, Lucev FM (as his Honour then was)

[4] First written submission at [11] and [6]

[5] First written submission, second paragraph under heading "Summary"

[6] The top right-hand corner of the document bears the date and time "29/10/2025, 09:20". It can be inferred relative to the date of the interlocutory hearing that this is the date and time when a copy of Exhibit "1A" was printed for tender at the interlocutory hearing

[7] Transcript 29 October 2025 T07.45 to T08.04 and T08.24 to T08.26

[8] Wilson Affidavit at [22] to [23]

[9] Citing Alam v National Australia Bank Ltd [2021] FCAFC 178; (2021) 288 FCR 301 per White, O'Callaghan and Colvin JJ at [59] to [60]