s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] Ziyun Wang (Applicant) has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Act) alleging she was dismissed in contravention of the general protections' provisions in Part 3-1 of the Act. Studylink Service Pty Ltd (Respondent) is the Respondent to the application.

• [2] Section 366(1) of the Act provides that an application under s.365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows under s.366(2) of the Act.

• [3] The Applicant was dismissed on 26 September 2024. The 21 day period ended on 17 October 2024. The application was lodged on 14 December 2024, outside of the 21 day period. The Applicant therefore requires an extension of time if the application is to proceed.

• [4] Section 366(2) of the Act provides that the Commission may allow a further period if it is satisfied that there are exceptional circumstances taking into account:

(a) the reason for the delay; and

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

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

(d) the merits of the application; and

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

• [5] A hearing was held on 14 February 2025 to determine whether an extension of time should be granted. Both parties sought to be represented by a lawyer. Section 596(2) of the Act has the effect that the Commission may only grant permission for a person to be represented by a lawyer in a matter before it if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

• [6] The Applicant sought to rely on s.596(2)(b) because English is not the Applicant's first language, and she needs assistance in making representations to the Commission and in understanding the legal framework. The Respondent did not object to the Applicant being represented by a lawyer. The Respondent also sought to rely on s.596(2)(b) because the representative of the Respondent had limited proficiency in English and was a small business owner with limited knowledge of the legal framework. The Applicant did not object to the Respondent being represented by a lawyer.

• [7] Having regard to the limited proficiency that the parties had in relation to the English language and the assistance needed to provide representations to the Commission in those circumstances, I granted permission to both parties to be represented by a lawyer pursuant to s.596(2)(b) of the Act.

• [8] Both the Applicant and Respondent filed submissions in relation to the question of whether an extension of time should be granted and the Applicant filed submissions in reply. The Applicant also filed a witness statement and associated materials and, during the hearing, gave evidence on her own behalf. The Respondent filed witness statements in respect of Ms Weiqun Wang (Wang), the Respondent's Director, and Jie Zhao (Zhao), the Respondent's Officer Supervisor, who also gave evidence at the hearing.

• [9] Prior to making the general protections application the subject of these proceedings, the Applicant had made an unfair dismissal application within 21 days of her dismissal. The parties participated in a conciliation conference before the Commission and exchanged draft settlement terms however there was a disagreement about whether taxation was to be deducted from the settlement figure and the matter did not resolve. The Applicant discontinued the unfair dismissal application and lodged a general protections application that same day, being 14 December 2024.

Section 366(2)(a) - the reason for the delay

• [10] The Applicant submitted that the reason for the delay was because she received incorrect legal advice regarding the appropriate form to file from her previous legal representatives, Juris Chambers Lawyers.[1]

• [11] In particular, the Applicant's evidence was that on 11 October 2024 she sought legal advice from Juris Chambers Lawyers[2] and told them that she wished to be paid relevant redundancy entitlements, overtime entitlements, incentives, accrued annual leave and her income between September 2024 and March 2026.[3]

• Juris Chamber Lawyers advised her that she should file an unfair dismissal application, and she filed the Form F2, within 21 days of her dismissal, pursuant to this advice;
• at no time did Juris Chamber Lawyers advise her that in most cases the Commission could only order reinstatement and compensation for some loss of income;

• • at no time did Juris Chambers Lawyers advise her that the Respondent's action potentially constitutes adverse action against the Applicant resulting from her request to be paid entitled incentives in full.[4]

• [13] The Applicant's evidence was that her full reliance on the advice of Juris Chambers Lawyers was because English is not her first language and because she suffered from anxiety and stress from the dismissal.[5] During cross examination the Applicant's evidence was that she spoke to Juris Chamber Lawyers in Mandarin.

• [14] The Applicant submitted that she was blameless in respect of the incorrect lodgement of the Form F2 as Juris Chambers Lawyers did not advise her of the possibility of adverse action.[6] The Applicant submitted that her understanding was that the Commission could grant her the relief sought and that she relied on Juris Chambers Lawyers' Advice that a Form F2 was sufficient for the relief sought.[7] The Applicant's Form F2 sought payment of annual leave, overtime, superannuation and incentives. It did not make reference to lost income between September 2024 and March 2026.

• [15] The Applicant submitted that she attended a conciliation conference on 15 November 2024 and following the conference the parties exchanged draft settlement terms.[8] The matter did not settle due to a misunderstanding about whether tax was to be withheld.[9] The Applicant's evidence was that she only became aware that the Respondent's actions potentially constituted adverse action after consultation with her current legal representative on or around 2 December 2024.[10] As noted above, the application the subject of these proceedings was filed on 14 December 2024.

• [16] The Applicant submitted that she could not have sought a second opinion within the prescribed timeframe as she had no knowledge of different application forms.[11]

• [17] The Respondent submitted that there was no sufficient explanation or compelling reason provided by the Applicant to justify the delay[12] and that:

• the Applicant did not provide sufficient evidence to demonstrate exceptional circumstances;
• reliance on incorrect legal advice does not generally constitute an exceptional circumstance under established case law; and

• • the Applicant had an opportunity to seek clarification or obtain a second opinion within the prescribed timeframe.[13]

• [18] During the hearing the Respondent submitted that it is insufficient to claim that legal advice is incorrect without having proof of this.

• [19] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[14] The Act does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.

• [20] The Applicant's evidence was that she told Juris Chambers Lawyers that she wished to be paid relevant redundancy entitlements, overtime entitlements, incentives, accrued annual leave and her income between September 2024 and March 2026.[15] Among the material filed by the Applicant with her evidence was a letter from Juris Chamber Lawyers to the Respondent dated 13 October 2024 outlining a settlement offer and which stated:

We are instructed to lodge a claim to the Fair Work Commission as our client believes that her dismissal is unfair for the following reasons:

1. You have failed to follow the Small Business Fair Dismissal Code. A copy of Code is enclosed for your attention. You are required to complete and return the Code to us urgently;
2. Should the reason of dismissal redundant, it is not a genuine redundancy; and
3. The dismissal is harsh and unreasonable.

We hereby enclose a copy of the application form our client intends to lodge for your reference.

In addition to the claim for unfair dismissal, our client is also entitled to the following payments:

1. Working days that has been wrongfully taken as annual leave

During 27 January 2024 to 27 February 2024, while our client was taking the annual lease, our client was required to work for the reason that her work cannot be assigned to any other colleagues. The total working days are estimated 20 working days which has been wrongfully taken as annual leave but shall be paid as working days.

During our client's employment, she has been asked to work overtime in the late night, and work outside her scope of job. For example, our client has been asked to escort the clients' business visiting in Sydney. The total estimated over time working time is at least 221 hours, which includes the working with boss and supervisor only. Those workings with colleagues have not been taken into account yet.

According to our client's calculation, the company has failed to pay the bonus/incentive pursuant to clause 8 of the employment agreement dated 15 March 2023 as follows:

As at the date of this letter, our client has not received payment of $2,012.49 for superannuation according to the Redundancy Payment dated 8 October 2024".

• [21] Despite the Applicant raising with Juris Chambers Lawyers that she wished to be paid relevant redundancy entitlements, overtime entitlements, incentives, accrued annual leave, which present as underpayment concerns, the correspondence above does contemplate the making of an unfair dismissal application. It is likely that this is because the Applicant also raised a concern about her dismissal and her evidence was that she told Juris Chambers Lawyers she was also seeking 'lost income between September 2024 and March 2026'.[16]

• [22] During cross examination the Applicant acknowledged that she raised her concern about annual leave payment with the Respondent after her dismissal. During cross examination the Applicant was questioned about whether she asked the Respondent about her overtime entitlements before or after the dismissal and the Applicant indicated that she did, although she could not recall the dates on which she made these enquiries because she "mentioned this face to face" to her supervisor Ms Zhao. Ms Wang's evidence was that the Applicant did not raise concerns regarding overtime or holiday pay during her employment or at the time of termination of her employment.[17] During cross examination the Applicant was also asked about when she raised her concerns about payment of incentives and the Applicant indicated that she discussed this "a couple of times" with Ms Zhao and indicated that there were emails establishing this. In this regard Ms Zhao's evidence was that in July 2024 the Applicant sent multiple emails to query her commission which were responded to and that on 17 or 18 September 2024 the Applicant contacted her again via WeChat to inquire about the commission calculation.[18] Ms Zhao said she informed the Applicant that there was a discrepancy in the calculation method and advised her to address the matter directly with Ms Wang.[19]

• [23] An email provided to the Commission dated 2 July 2024 from the Applicant to Ms Zhao states:

"You talked to me face to face on the morning of 18 July,2024. after we talked further, according to your requirements, I made a detailed list, the following are the names of detailed applicants...

I am writing to inquire about the commission payments for the visa application work I have completed. I have not received the commission that was agreed upon for these applicantion (sic) visa..."

• [24] A further email filed with the Commission shows that Ms Zhao replied to the Applicant on 31 July 2024 indicating that commission would not be paid in respect of "handover work for former staff", that travel visas were "part of the job, which is already included in the annual payment" and that there would be no extra commission in respect of them. It is apparent from the email exchange that Ms Zhao and the Applicant did not share the same understanding as to how commission would be calculated.

• [25] It is a common occurrence in that applicants and their representatives may need to consider the best type of application to make in an applicant's particular circumstances. This may not only involve consideration of the causes of action available but the features of the jurisdictions in which those actions are determined and an applicant's specific circumstances. I accept that the Applicant raised concerns about payment of her incentives prior to her dismissal. However, beyond articulating the outcome she was seeking, it is unclear what the Applicant said to Juris Chamber Lawyers about this in the context of her concerns about dismissal.

• [26] The Form F2 application that was ultimately filed states:

'1) The employer has failed to follow the Small Business Fair Dismissal Code.

2. Should the reason of dismissal redundant, it is not a genuine redundancy.

3. The dismissal is harsh - according to clause 17 of the employment agreement, the employer shall provide one month's notice to terminate the employment. However, the employer only provided 3 days' notice in this case.

4. The dismissal is unreasonable - A the employer has not provided reason of dismiss yet, I am not able to see whether it is reasonable or unreasonable.'

• [27] The 'desired outcome' expressed in the Form F2 application was:

'1) 20 working days' payment that has been wrongfully taken as annual leave.

3. Bonus/Incentive payment in amount of $ 17.875.00 in total.

• [28] In Annexure A to her Form F8, the Applicant referred to the matter of Gough v LifeAid Pty Ltd[20] in which the Applicant sought an extension of time to lodge an application under s.365 of the Act. In that matter the applicant made a complaint to Fair Work Ombudsman about discrimination and the applicant's evidence was that he was advised by the Fair Work Ombudsman that the application he made was inappropriate and that she should make an application to Fair Work Australia under s.365 or s.773 of the Act. The Applicant then discontinued his anti-discrimination complaint with the Fair Work Ombudsman and made an application with Fair Work Australia under s.365 of the Act. In that matter the Senior Deputy President granted an extension of time after finding:

• • the Applicant had made an application, within the relevant time period, to the Fair Work Ombudsman which, despite the advice given, fell within its jurisdiction; [21]
• • the Applicant made his application believing a claim to the Fair Work Ombudsman was the Fair Work Commission; [22]
• • there was a delay in responding by the Fair Work Ombudsman and by the time the Fair Work Ombudsman responded to the Applicant, the period for making an application under s.365 of the Act had been exceeded;[23]
• • the Fair Work Ombudsman did not facilitate the Applicant's further application under s.365 to Fair Work Australia and the Applicant was left to his own devices which led to further inadvertent delay;[24]
• • the Applicant became agitated by the absence of any acknowledgement of his application from Fair Work Australia and when the Fair Work Ombudsman contacted him, they advised him to be patient in waiting for a response, despite its time sensitive nature;[25]
• • the Applicant had made an inadvertent error in making his second application in that he faxed it to the wrong fax number[26] but the Fair Work Ombudsman's advice caused the Applicant not to act upon his concerns about the lack of response from Fair Work Australia and follow up earlier than he otherwise would have.[27]

• [29] The Senior Deputy President found the reasons for the delay were exceptional because the of various interventions of the Fair Work Ombudsman in the application process which led the applicant on a course of conduct which caused a delay in his application under s.365.[28] The facts of this matter are distinguishable from those in Gough v LifeAid Pty Ltd[29] in that the applicant in that matter made an application which appeared to be within the Fair Work Ombudsman's jurisdiction yet interventions made by the Fair Work Ombudsman leading the Applicant to the view that it was not the right place to bring an application and that they were not sensitive to the time limitations around filing applications resulted in a circumstances in which the Applicant would have, but for the extension of time, been unable to have their case dealt with by the Commission. However, in the current matter:

• the Applicant did make a dismissal related application on time, being the unfair dismissal application;
• the Respondent responded to the application; and
• the application was dealt with by the Commission via conciliation with the assistance of interpreters.

• [30] While the Applicant did not get the outcome she was seeking during conciliation, it is far from clear that the unfair dismissal application was not available to the Applicant at the time it was made. In this regard, the Applicant also referred to the matter of Lane v Kangaroo Island & Dive Adventures Pty Ltd[30] _i_n Annexure A to her Form F8. In that matter the applicant sought an extension of time to lodge an application under s.365 of the Act after making an application pursuant to s.773 of the Act. Section 773 of the Act enables an application to be made by an employee or industrial association where an employer has terminated an employee's employment and the employee, or industrial association entitled to represent the employee's industrial interests, alleges that the employee's employment was terminated in contravention of s.772(1). Section 772(1) provides that an employer must not terminate an employee's employment for one or more of the reasons prescribed by s.772(1). In that matter the Senior Deputy President found that one of the reasons for the delay was that the Applicant was advised to make an application pursuant to s.773. The Senior Deputy President concluded that the s.773 was not available in the Applicant's situation and that he did not become aware of this until a conference before the Commission on 15 April 2010.

• [31] As noted above, the unfair dismissal stated that the outcome sought was payment in relation to annual leave, overtime, incentives and superannuation. While the Applicant's evidence was that she told Juris Chamber Lawyers she was also seeking lost income, this was not reflected in the outcome sought in the Form F2. The outcome sought in the Form F2 application is not the type of remedy that can be granted by the Commission in an unfair dismissal application, however unlike the circumstances in Lane v Kangaroo Island & Dive Adventures Pty Ltd[31] it does not necessarily follow that an application of the nature initially made by the Applicant, being an unfair dismissal application, was not available to the Applicant in her situation. Further, while the Applicant has nominated Juris Chamber Lawyers as her representative, the Form F2 indicates that it is the Applicant herself that completed and lodged the application. It is a common circumstance that applicants will identify an outcome in their Form F2 that does not align with the Commission's powers concerning remedy, such as provision of a statement of service, apology or remediation of underpayments and this does not invalidate an application.

• [32] It is apparent that the Applicant is still seeking to pursue an application concerning her dismissal, yet it is unclear what information was provided to Juris Chamber Lawyers by the Applicant regarding her circumstances to inform its advice about the type of dismissal application she should make. The evidence suggests that the Applicant formed the view that a more suitable type of claim was available to her after seeking a second opinion from another lawyer when her unfair dismissal claim failed to settle, and I find that this was the reason for the delay. However, I am unable to conclude that the advice of Juris Chamber Lawyers was "incorrect" as the Applicant asserts in circumstances where it is unclear as to what the Applicant told Juris Chamber Lawyers about the circumstances regarding her dismissal beyond stating the relief she was seeking.[32]

Section 366(2)(b) - any action taken by the person to dispute the dismissal

• [33] The Applicant submitted that she questioned her dismissal via email on 4 October 2025.[33] The Applicant also submitted that she first contested her dismissal within time.[34] In this regard, the Applicant filed a Form F2 unfair dismissal application on 15 October 2024 within 21 days of her dismissal.

• [34] I am satisfied that the Applicant took the above action to dispute the dismissal.

Section 366(2)(c) - prejudice to the employer (including prejudice caused by the delay)

• [35] The Applicant submitted that there is no prejudice to the employer[35] because:

• • the Form F2 and Form F8 deal with the same set of facts and relief sought and the response required by the Respondent will be substantively the same;[36]

• on 11 December 2024 the Applicant's current legal representative sent correspondence to the Respondent explaining the relevant circumstances, detailing the potential contraventions of the general protections provisions of the Act and offering to settle the dispute;

• • on 13 December 2024 the Respondent's legal representative advised that the general protections allegations would 'fail on the question of causation'. [37]

• [36] In its Form F8A response to the application, the Respondent submitted:

• the Applicant previously filed an unfair dismissal application;
• this application was actively addressed by the Respondent with both parties participating in a conciliation conference in November;
• the Applicant's subsequent decision to discontinue the application and file a general protections application reflects an attempt to revisit issues already considered and addressed;
• the Applicant's actions indicate 'forum shopping' by seeking alternative avenues for redress after discontinuing the prior unfair dismissal application;

• • this causes unnecessary inconvenience and expense to the Respondent.[38]

• [37] The Respondent submitted that both the Applicant's first and second applications are based on the same facts and if the Applicant is allowed to file another claim without solid evidence that she received incorrect legal advice it would give rise to unfairness to the Respondent who would have to defend against the same case twice from two different perspectives. The Respondent submits that:

• it has already incurred legal costs in responding to the unfair dismissal application;
• its business operations could be disputed by the extended proceedings, diverting resources and attention from core business activities to address ongoing claims; and
• the delay prolongs uncertainty impacting the Respondent's ability to effectively plan and manage its workforce;

• • the parties have already had the opportunity to resolve the matter through conciliation in relation to the unfair dismissal application and the Applicant's inability to finalise settlement terms does not justify reopening the case through a new application.[39]

• [38] The Applicant refuted that the commencement of the Form F8 application creates more uncertainty in resolution. [40] The Applicant also denied that it was her 'inability' to finalise settlement terms that resulted in settlement not being reached rather, the parties did not reach agreement at the conciliation conference.[41]

• [39] I am satisfied that granting an extension of time would give rise to prejudice to the Respondent in circumstances where the Respondent has already directed resources toward defending against another type of dismissal application and participating in conciliation. In circumstances where the unfair dismissal Application did not deliver the outcome the Applicant is seeking and she now seeks to secure her desired outcome by making an application under the general protections provisions, this takes on the flavour 'forum shopping' as described by the Respondent and would likely subject the Respondent to further cost and inconvenience if an extension of time was to be granted.

Section 366(2)(d) - the merits of the application

• [40] The Applicant submitted that the application is a 'highly meritorious claim'[42] because her dismissal is caused by an exercise of her workplace right by requesting that her incentives be paid in full.[43]

• [41] In her Form F8 application (Form F8) the Applicant submitted:

• she commenced employment with the Respondent as a student advisor on 20 March 2023 pursuant to an employment agreement that had an end date of 20 March 2026;
• the employment agreement provided that the Applicant was to receive incentives and overtime;
• on 23 January 2024 the Applicant approached her supervisor, Ms Zhao, in relation to the payment of 2023 incentives;
• on 22 July 2024 the Applicant chased up again in relation to the payment of her 2023 and 2024 incentives;
• on 31 July 2024 Ms Zhao refused the Applicant's request for full payment of her incentives;
• the Applicant chased up the payment a few other times between August and September 2024, highlighting that her entitlement to incentives was stipulated in her employment agreement;
• on 23 September 2024 the Applicant was informed that her employment was terminated, without explanation;
• on 26 September 2024 the Applicant was given a 'Separation Settlement' for execution, which indicated she had resigned however the Applicant refused to sign it as she believed its contents were not truthful;

• • on 9 October 2024, the Respondent informed the Applicant that she had been made redundant;[44]

• the Respondent's refusal to pay her incentives in full was a breach of s.323(1) of the Act;
• she exercised a workplace right in requesting full payment of her incentives pursuant to s.341(1)(a) of the Act;
• the dismissal was adverse action within the meaning of s.342(1) of the Act;
• the dismissal was motivated by, or for reasons including, the Applicant's exercise of her workplace right to be paid;
• there is a causal link between the adverse action and the unlawful reasons alleged including:
  • the proximity between the Applicant's exercise of her workplace right and the Respondent taking adverse action;
  • the Respondent's request for the Applicant to admit that she voluntarily resigned and its assertion that she had been made redundancy when she refused;

• o the fact that there was no other reason for the adverse action.[45]

• [42] The Applicant filed a copy of her employment agreement which sets out a commission structure. As noted above, the email exchange between the Applicant and Ms Zhao in July 2024 suggests a lack of alignment between the Applicant and Ms Zhao around how this was to be applied.

• [43] In its Form F8A response the Respondent submitted that the Applicant's role was redundant due to a shift of business operations to overseas.[46] The Respondent submitted that while this reason may not have been provided to the Applicant in writing at the time of the termination of her employment it was communicated to her on several occasions beforehand.[47]

• [44] The Respondent elaborated on this in its submissions, submitting that:

• the Applicant was employed as a Student Advisor responsible for preparing international student visa applicants and the Respondent made a strategic decision to shift these services for Chinese client students to China;
• this decision was driven by the fact that almost all the students were from China and their applications are now being handled by a dedicated team in the Respondent's China office;
• the move to centralise these services in China, where the student market is concentrated, eliminated the need for the applicant's role in Australia;

• • as a result, the Applicant's job was no longer required, and the tasks previously performed locally are now managed entirely by the team in China.[48]

• it complied with its consultation obligations;
• the Applicant was informed of the redundancy decision and the reasons behind the shift of work to China;
• the applicant's skills and duties were directly tied to the specific student visa processing tasks that are now performed entirely by the offshore team.

• • it explored potential options for redeployment, but no suitable roles were available within its Australian operations, as all work related to student visa applications was being shifted overseas.[49]

• [46] In this regard, Ms Wang's evidence was that:

• • the Respondent is an international education agency for universities in Australia and its primary clients are high school graduates from China seeking to enter Australian universities;[50]
• • in late August and early September 2024 news emerged indicating that the government would implement a cap on international student numbers starting in 2025;[51]
• • during the Applicant's leave in August, she had to reassign the Applicant's workload to staff in China and recognised that the tasks were managed more effectively by the Chinese office due to local proximity and time zone alignment;[52]
• • she determined that the Applicant's position in Australia was no longer necessary;[53]
• • on 23 September 2024 she had a face-to-face meeting with the Applicant and informed her that her position would be made redundant, effective 26 September 2024[54] and on that same day emailed the Applicant to confirm that her outstanding commission would be calculated and paid by 10 October;[55]
• • in subsequent emails the applicant sought clarification on her commission entitlement, Ms Wang explained that partial commissions applied to incomplete tasks and assured her that all entitled commissions would be paid;[56]
• • on 8 October 2024 Ms Wang sent the applicant a redundancy payment notice to finalise the matter.[57]

• [47] Section 323(1) of the Act provides that an employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a) in full (except as provided by s.324); and

(b) in money but one, or a combination, of the methods referred to in subsection (2); and

(c) at least monthly.

• [48] The Respondent further submitted that:

• the Applicant's claim regarding unpaid incentives does not constitute a breach of s.323(1) of the Act;
• the Respondent's director has never declined to pay the Applicant's incentives, but the amount remains unclear because the work required to determine the incentives was not fully completed;
• at no point during her employment or prior to her dismissal did the Applicant raise any concerns or disputes about overtime payments or annual leave entitlements and these allegations, introduced only after her dismissal, lack credibility and are irrelevant to the current application;
• the Applicant's assertion that her dismissal constitutes adverse action under s.342(1) of the Act is without merit;
• the decision to terminate the Applicant's employment was a business decision driven by operational needs and not by any alleged exercise of workplace rights;

• • the request for the Applicant to sign the 'Separation Settlement' was a procedural step to formalise the termination and was not an act of coercion or misrepresentation.[58]

• [49] It is apparent that the reasons for the Applicant's dismissal are in contest with the Applicant suggesting that her dismissal was caused by an exercise of her workplace right by requesting that her incentives be paid in full[59] and the Respondent suggesting the reason for the dismissal was redundancy. Having regard to the matters referred to above, I find that the merits of the application will necessarily turn on the evidence and that it is not possible to make an assessment of the merits of the application based on the limited material before me.

Section 366(2)(e) - fairness between the person and other persons in a like position.

• [50] As a Full Bench has noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[60] In particular, the history of this provision indicates that it refers to "other employees of the employer agitating the same or similar substantive issues".[61]

• [51] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

• [52] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding the matters in s.366(2) of the Act. By way of summary, these include that:

• the reason for the delay was because Applicant formed the view that a general protections application was more suitable after seeking a second opinion from another lawyer when her unfair dismissal claim failed to settle, and not necessarily because she received incorrect legal advice;
• that the Applicant took actions to dispute her dismissal, including making an unfair dismissal claim within 21 days;
• the Respondent would likely incur further cost and inconvenience if an extension of time was to be granted in circumstances where it has already responded to a dismissal related application and participated in conciliation in relation to that application and would therefore suffer prejudice;
• the merits of the application will necessarily turn on the evidence and that it is not possible to make an assessment of the merits of the application based on the limited material before me; and
• neither party brought to my attention any relevant matter concerning s.366(2)(e) and I am unaware of any relevant matter.

• [53] Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[62] Exceptional circumstances may 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.[63] I am not satisfied that there are exceptional circumstances after considering the above matters individually as well as in combination. Further, even if it could be established that the general protections application was a more suitable application for the Applicant's specific circumstances than an unfair dismissal application, which is far from clear based on the evidence, and that Juris Chamber Lawyers failed to advise her of this, in my view and taking into account the other considerations in s.366(2), it would not be enough to outweigh prejudice that the Respondent would incur in having to respond to and participate in proceedings concerning two dismissal related claims in relation to the same dismissal.

• [54] Having regard to all of the matters at s.366(2) of the Act, I am not satisfied that there are exceptional circumstances and as such there is no basis for the Commission to allow an extension of time.

• [55] The application is dismissed under s.587(1)(a) of the Act.

14 February at 10:00am by Video using Microsoft Teams.

[1] Applicant's Outline of argument: Extension of time, p. 4.

[4] Applicant's Outline of argument: Extension of time, p. 4; Applicant's Form F8 application, Annexure A at [20] - [22].

[6] Applicant's Form F8 application, Annexure A at [3].

[7] Applicant's Form F8 application, Annexure A at [28].

[8] Applicant's Form F8 application, Annexure A at [30].

[9] Applicant's Form F8 application, Annexure A at [30].

[11] Applicant's submissions in reply at [6].

[12] Respondent's Form F8 response, response to q. 1.2.

[13] Respondent's Outline of Argument: Objections, p. 4.

[14] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[18] Zhao Statement at [7] and [9].

[20] [2010] FWA 2481.

[21] [2010] FWA 248 at [19].

[22] [2010] FWA 248 at [21].

[23] [2010] FWA 248 at [19].

[24] [2010] FWA 248 at [24].

[25] [2010] FWA 248 at [25].

[26] [2010] FWA 248 at [14].

[27] [2010] FWA 248 at [26].

[28] [2010] FWA 248 at [27].

[29] [2010] FWA 2481.

[30] [2010] FWA 3939.

[31] [2010] FWA 3939.

[32] See Applicant's Statement at [14].

[33] Applicant's Outline of Argument, response to q.5.

[34] Applicant's Form F8 Application, Annexure A at [3].

[35] Applicant's Form F8 Application, Annexure A at [3].

[36] Applicant's Form F8 Application, Annexure A at [37]; Applicant's Outline of Argument, response to q.6.

[37] Applicant's Form F8 Application, Annexure A at [37]; Applicant's Outline of Argument, response to q.6.

[38] Respondent's Form F8A response, response to q. 1.2.

[39] Respondent's Outline of Argument, response to q. 1g.

[40] Applicant's submissions in reply at [5].

[41] Applicant's submissions in reply at [9].

[42] Applicant's Form F8 Application, Annexure A at [3], [35].

[43] Applicant's Form F8 Application, Annexure A at [35]; Applicant's Outline of Argument, response to q.7.

[44] Applicant's Form F8 application, response to q. 3.1, Attachment A.

[45] Applicant's Form F8 application, response to q. 3.4, Attachment at [36]; Applicant's Outline of Argument, response to q.8.

[46] Respondent's Form F8A Application, response to q.1.4 and 3.1.

[47] Respondent's Form F8A Application, response to q. 3.1.

[48] Respondent's Outline of Argument, response to q. 1h.

[49] Respondent's Outline of Argument, response to q. 1h.

[58] Respondent's Form F8A Application, response to q. 3.1.

[59] Applicant's Form F8 Application, Annexure A at [35]; Applicant's Outline of Argument, response to q.7.

[60] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

[61] See El Rifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090, [19].

[62] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

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