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

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.

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.

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.

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.

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.

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.”

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.

Miss Hardgrove…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Claire Hardgrove [2025] FWC 2933
Case: [2025] FWC 2933
Decision Date: 1 OCTOBER 2025

CaseChat Overview and Summary

In the Fair Work Commission, Deputy President Easton dismissed an application for unlawful termination made by Miss Claire Hardgrove against Google Australia Pty Ltd. The application was dismissed under section 587 of the Fair Work Act 2009. This dismissal followed previous proceedings in the Commission concerning the same dismissal, including a general protections application and an appeal against a decision declining an extension of time to file that application.

The legal issues in this case centred around the eligibility of Miss Hardgrove to make an unlawful termination application under section 773 of the Fair Work Act. Notably, the court had to determine whether Miss Hardgrove, as a National System Employee, was eligible to make an application under section 773 when she had already made a general protections application under section 365. Additionally, the court needed to assess whether the application was filed within the requisite time frame and if there were exceptional circumstances to justify an extension of time. Furthermore, the court examined whether the application had any reasonable prospects of success and if procedural fairness had been afforded to Miss Hardgrove.

Deputy President Easton concluded that Miss Hardgrove's application was ineligible under section 773 of the Act due to her status as a National System Employee. This conclusion was based on section 723 of the Act, which prohibits making an unlawful termination application if a general protections application is eligible. The court also noted that Miss Hardgrove had not provided any information to demonstrate that her application had reasonable prospects of success, nor did she address the concerns about the timing of the application. The Deputy President held that procedural fairness had been observed by providing Miss Hardgrove with an opportunity to respond to the concerns raised. Given these factors, the court dismissed the application under section 587, finding that there were no reasonable prospects of success.

The court ordered that the application made by Miss Claire Hardgrove on 29 August 2025 under section 773 of the Fair Work Act 2009 is dismissed.

Orders