Claire Hardgrove v Google Australia Pty Ltd - [2025] FWCFB 160

[2025] FWCFB 160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Claire Hardgrove
v

Google Australia Pty Ltd

(C2025/6325)

DEPUTY PRESIDENT COLMAN
COMMISSIONER HUNT
COMMISSIONER DURHAM

MELBOURNE, 31 JULY 2025

Appeal against decision [2025] FWC 1714 of Commissioner P. Ryan at Sydney on 18 June 2025 in matter number C2025/7445 – permission to appeal refused

Claire Hardgrove has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner P. Ryan issued on 18 June 2025 ([2025] FWC 1714) in which the Commissioner declined to grant an extension of time for Ms Hardgrove’s application under s 365 of the Act, and dismissed the application. The matter was listed for permission to appeal only. The parties consented to the Full Bench determining the matter without holding a hearing, and we are satisfied that it can be adequately determined without the parties making oral submissions (see s 607(1)).

Section 366(1) provides that an application under s 365 must be made within 21 days after the dismissal took effect, or such further period as the Commission allows. Section 366(2) states that the Commission may allow a further period if it is satisfied that there are exceptional circumstances, taking into account the matters in s 366(2)(a) to (e). Ms Hardgrove’s application was lodged some 5 months after the end of the 21-day period. She asked the Commissioner to allow a further period under s 366(2).

In his decision, the Commissioner examined in detail Ms Hardgrove’s arguments in relation to each of the matters in s 366(2). As to s 366(2)(a), the Commissioner was not satisfied that the various reasons for delay cited by Ms Hardgrove were acceptable or reasonable explanations for the delay, and concluded that this weighed against an extension of time. First, the Commissioner found that there was no evidence to support Ms Hardgrove’s contention that negligent or incomplete advice from her various lawyers was the reason for delay. Secondly, he found that there was no medical evidence that spoke to Ms Hardgrove’s medical conditions or incapacity, whereas there was evidence of her regular communications with legal representatives following her dismissal, none of which supported a conclusion that her condition prevented or delayed her application. Thirdly, the Commissioner was not satisfied that Ms Hardgrove’s location and the time zone difference with Australia had a significant impact on her, or that it was an acceptable reason for the delay.

As to the other mandatory considerations in s 366(2), the Commissioner accepted that Ms Hardgrove took action to dispute her dismissal but considered this a neutral consideration. He identified no prejudice to the employer, and considered that the merits would turn on contested points of fact; both of these factors he regarded as neutral matters. He also considered that the question of fairness between Ms Hardgrove and other persons in a similar position did not weigh in her favour. The Commissioner concluded that he was not satisfied that there were…

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

Case: [2025] FWCFB 160
Decision Date: 31 JULY 2025

CaseChat Overview and Summary

Claire Hardgrove has appealed a decision of Commissioner P. Ryan, who dismissed her application for unfair dismissal. The application was lodged more than five months after the expiry of the 21-day period allowed under the Fair Work Act 2009. Hardgrove sought an extension of time on the basis of exceptional circumstances. The appeal was heard by the Full Bench of the Fair Work Commission, who considered the matter on the papers without a hearing. The Full Bench was tasked with determining whether there were grounds for the appeal, and if permission to appeal should be granted. The appeal was based on a number of arguments, including that the Commissioner erred in his evaluation of the reasons for delay, failed to properly consider the exceptional circumstances, and made factual errors. The Full Bench found that Hardgrove had not made out an arguable case of appealable error. The Full Bench concluded that the Commissioner's decision did not manifest an injustice or contain an error of law, and that there was no basis to grant permission to appeal. Permission to appeal was refused.

The appeal process under the Fair Work Act 2009 is governed by section 604. Permission to appeal is not a right, but must be granted by the Commission. The Full Bench considered whether it was in the public interest to grant permission to appeal, and whether there were other general discretionary grounds to do so. The Full Bench found that the grounds of appeal did not disclose an arguable case of appealable error, and that the appeal was not in the public interest. The Full Bench also found that there were no other grounds to grant permission to appeal. The Full Bench refused permission to appeal.

Orders