Claire Hardgrove

[2025] FWC 2933

[2025] FWC 2933

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.773—Termination of employment

Claire Hardgrove

(C2025/8474)

DEPUTY PRESIDENT EASTON SYDNEY, 1 OCTOBER 2025

Application to deal with an unlawful termination dispute – dismissal under s.587 at the Commission’s initiative - application has no reasonable prospects of success

1. Miss Claire Hardgrove has made an unlawful dismissal application to the Fair Work Commission under s.773 of the Fair Work Act 2009 (Cth). Ms Hardgrove’s application relates to a dismissal in April 2024. That dismissal was the subject of proceedings in the Commission and two published decisions: Hardgrove v Google Australia Pty Ltd[2025] FWC 1714 and on appeal Hardgrove v Google Australia Pty Ltd[2025] FWCFB 160.

1. The first decision relates to a general protections application made by Ms Hardgrove under s.365 of the Act on 15 October 2024, being approximately six months after the dismissal took effect. On 18 June 2025 Commissioner Ryan declined to grant Ms Hardgrove an extension of time to file her s.365 application.

1. Ms Hardgrove appealed the Commissioner’s decision. In the second decision referred to above a Full Bench of the Commission refused permission to appeal Commissioner Ryan’s decision.

1. The Full Bench announced its decision on 31 July 2025. Ms Hardgrove’s application under s.773 was made 4 weeks later on 29 August 2025.

1. I had several concerns about Ms Hardgrove’s application – all of which were raised on a preliminary basis with Ms Hardgrove. Firstly, the application appears to be an appeal against the Full Bench decision. It is not possible to file an appeal in the Fair Work Commission against a decision of a Full Bench of the Commission (see Patial v Kailash Lawyers[2024] FWC 3388 and on appeal Patial v Kailash Lawyers[2025] FWCFB 41). Secondly, the application was filed out of time and given the result of the previous two cases in the Commission, it is unlikely that Ms Hardgrove would be able to establish that there are exceptional circumstances that could allow the Commission to grant an extension of time.

1. Perhaps more significantly, Google Australia Pty Ltd is a National System Employer. As such Ms Hardgrove was prima-facie eligible to make a general protections application under s.365, particularly in light of the fact that she had already made an application under s.365 against Google Australia Pty Ltd. If the Applicant is entitled to make an application under s.365 she is not entitled to make an application under s.773 because of s.723 of the Act, viz:

“723 Unlawful termination applications

A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.”

1. These concerns were raised with Ms Hardgrove by email on 10 September 2025. Ms Hardgrove was invited to respond by email and provide a factual and legal basis for establishing, amongst other matters, that she is eligible to make an unlawful termination application under s.773.

1. Miss Hardgrove responded, however did not provide any relevant information or argument that supports her eligibility to make the application under s.773.

1. The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]-[16] (Bond)). An application should not be dismissed under s.587 unless it is very clear that there are no reasonable prospects of success. As such the power under s.587 is not available if there are disputed facts that could affect the outcome of the proceedings.

1. Importantly, applicants must be given a fair opportunity to show that their application does in fact have some reasonable prospects of success.

1. The information provided by Miss Hardgrove on her Form F9 application strongly indicates that she is not eligible to make an unlawful termination application because she appears to be a National System Employee.

1. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

1. Miss Hargrove has not provided any information that establishes that her unlawful termination claim has any reasonable prospects of success.

1. I am satisfied that Miss Hardgrove has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application under s.587. In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Miss Hardgrove’s application. I make the following order:

A.The application under s.773 of the Fair Work Act 2009 (Cth) made by Miss Claire Hardgrove on 29 August 2025 is dismissed.

DEPUTY PRESIDENT

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