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

1. 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)).

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).

1. 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.

1. 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 exceptional circumstances in Ms Hardgrove’s case, and that accordingly there was no basis for him to allow a further period under s 366(2).

Permission to appeal

1. There is no right to an appeal from the Commissioner’s decision. An appeal may only be brought with the permission of the Commission under s 604(1). Section 604(2) provides that the Commission must grant permission if it is satisfied that it is in the public interest to do so. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]). Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or where the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 at [27]). Where the public interest is not engaged, the Commission may grant permission to appeal on general discretionary grounds.

1. In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds (Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82]). However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. An appellant must ordinarily demonstrate that there is such a case in order to be granted permission to appeal, as an appeal cannot succeed in the absence of error (Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204). However, the fact that a member at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.

Grounds of appeal

1. Ms Hardgrove’s grounds of appeal are contained in a 57-page document attached to her notice of appeal. The document recounts in great detail the history of her disputation with the respondent, her decision to lodge an earlier general protections claim as well as an unfair dismissal claim, her interactions with various lawyers and the Commission, the details of her traumatic brain injury and medical treatment, her dealings with WorkSafe NSW, her correspondence with the Commissioner, and many other matters. Ms Hardgrove also sent a large number of emails and documents to the Commission elaborating upon these and other matters. We would observe that Ms Hardgrove appears to become lost in the sheer volume and detail of her materials, and that she fails to distil the salient points of her appeal into a coherent argument. Nevertheless, we have striven to identify the essential points. In this regard, Ms Hardgrove makes various assertions to the effect that the Commissioner’s decision contains errors of law and fact, as well as various inconsistencies. We will not recite them.

1. We do not consider that Ms Hardgrove has established an arguable case of error in the Commissioner’s decision. Ms Hardgrove believes that the Commissioner should have accepted her arguments in respect of the reasons for delay, the existence of exceptional circumstances, and other matters, and that he ought to have granted her an additional period within which to bring her application under s 365. However, an insistence that the mandatory considerations should have been evaluated differently, and that the Commissioner should have concluded that there were exceptional circumstances, does not speak to any appealable error in the Commissioner’s decision.

1. Further, to the extent that Ms Hardgrove challenges the Commissioner’s factual findings, it is well established that on appeal, the findings of a member at first instance should generally stand, unless they are demonstrably wrong, glaringly improbable, or contrary to compelling inferences (see Robinson Helicopter v McDermott [2016] HCA 22, and AEU v Bendigo Kangan Institute of TAFE[2021] FWCFB 3649 at [36]-[39]). We do not consider there to be an arguable case that any of the Commissioner’s factual findings are of such a nature.

Conclusion and disposition

1. The grounds of appeal do not disclose an arguable case of error. We are not satisfied that it is in the public interest to grant permission to appeal, nor do we consider that permission to appeal should be granted on general discretionary grounds.

1. Permission to appeal is refused.

DEPUTY PRESIDENT

Determined on the papers

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