Claire Hardgrove v Google Australia Pty Ltd
[2025] FWC 1714
•18 JUNE 2025
| [2025] FWC 1714 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Claire Hardgrove
v
Google Australia Pty Ltd
(C2024/7445)
| COMMISSIONER P RYAN | SYDNEY, 18 JUNE 2025 |
Application to deal with a dismissal dispute – application made out of time by 159 days – circumstances not exceptional – application dismissed
Introduction
This decision concerns an application by Ms Claire Hardgrove (Ms Hardgrove) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (SecondGP Application).
Ms Hardgrove states that her employment with Google Australia Pty Ltd (Google) was terminated with effect from 18 April 2024. The Second GP Application was made on 15 October 2024.
An application for the Commission to deal with a dismissal dispute must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows.[1] The period of 21 days ended at midnight on 9 May 2024. Therefore, the Second GP Application was made 159 days outside the 21-day period. Ms Hargrove asks the Commission to allow a further period for the Second GP Application to be made.
Upon the allocation of the matter to my Chambers, I directed the parties to file materials in support of, or in opposition to, the application for an extension of time.
The matter was heard on 30 January 2025. Although Ms Hardgrove was granted permission to be represented by a lawyer on the basis that I was satisfied as to the matter set out in s.596(2)(a) of the FW Act, Ms Hardgrove was self-represented at the hearing. Google was represented by Mr S Marriott of Australian Industry Group.
Evidence and Materials
The following witness statements and documents were admitted into evidence:
· Witness statement of Ms Hardgrove dated, 20 November 2024 (Exhibit A1);
· Witness statement of Ms Hardgrove dated, 17 December 2024 (Exhibit A2);
· Ms Hardgrove’s Bundle of Documents (Exhibit A3); and
· Google’s Bundle of Documents (Exhibit R1).
Ms Hardgrove also gave evidence at the hearing.
For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.366(2).
Relevant Background
Ms Hardgrove was employed by Google as a software engineer from 4 January 2021.
On 8 November 2023, Ms Hardgrove made two complaints about alleged psychosocial hazards in the workplace at Google. One complaint was made internally to Google, and the second complaint was made as a request for service lodged with Safework NSW.[2]
On 12 November 2023, Ms Hargrove attended a Google conference overseas.[3]
On 20 November 2023, Ms Hardgrove returned to Australia and was offered, and accepted, a transfer of employment to Google DeepMind.[4]
On 21 November 2023, Google directed Ms Hardgrove to attend an independent medical examination (IME), alleging that she had suffered psychological shock at the overseas conference. Ms Hardgrove refused to attend the IME and provided a certificate of fitness for work stating that she was not suffering from any psychological or psychiatric condition.[5]
On 5 December 2023, Ms Hardgrove made another complaint to Safework NSW regarding the direction to attend an IME as well as alleging she was subjected to workplace bullying by Google’s human resources staff.[6]
In mid-December 2023, Ms Hardgrove took a period sick leave for other unrelated medical conditions and submitted a further certificate of fitness for work to Google on 26 December 2023.[7]
Throughout December 2023 and January 2024, Google issued further directions to Ms Hardgrove to attend an IME.[8]
On 9 January 2024, Google cancelled Ms Hardgrove’s transfer of employment to Google DeepMind.[9]
On 23 February 2024, Google issued a show cause letter to Ms Hardgrove regarding her repeated refusal to attend an IME as well as other alleged conduct.[10]
On 11 March 2024, Ms Hardgrove made an online enquiry through the website of a law firm (Law Firm A).[11]
On 18 April 2024 and following an investigation, Ms Hardgrove attended a meeting with Google via video conference during which her employment was terminated. Google subsequently sent a letter of termination by email, which was annexed to the Employer’s Form F8A Response, and relevantly states:
As discussed, Google Australia Pty Ltd ("Google") has taken into account all of the relevant evidence in the course of the investigation and has formed a view that, on balance, in refusing to carry out the lawful and reasonable instruction to attend an IME, your conduct amounts to:
·persistent misconduct;
·a serious breach of Google’s Policy on Harassment, discrimination, misconduct, retaliation, standards of conduct and workplace concerns (Australia) in particular, insubordination (refusing a reasonable work assignment or refusing to follow work-related instructions); and
·conduct that is in breach of your employment contract dated 19 March 2020 (“Employment Contract”) with Google, including failure to comply with Google’s policies (clause 8.2).
…
Google considers that the substantiated conduct amounts to persistent misconduct and
accordingly, Google could terminate your employment without notice in accordance with clause 12.3(a), 12.3(b) or 12.3(c) of your Employment Contract. Notwithstanding this, and in recognition of your prior service with Google, Google has elected to terminate your employment with notice, pursuant to clause 12.1 of the Contract, by way of making you a payment in lieu of notice as contemplated by that clause.This means that your last date of employment with the Company will be today, 18 April 2024.
At 9:27pm on 18 April 2024, Ms Hardgrove made an application for an unfair dismissal remedy (UFD Application). The UFD Application was lodged through the Commission’s Online Lodgment Service (OLS).
At 10:57pm on 18 April 2024, Ms Hardgrove made an application for the Commission to deal with a dismissal dispute (First GP Application). The First GP Application was also lodged through the Commission’s OLS.
During April 2024, Ms Hardgrove was travelling overseas and has been predominantly based overseas since her dismissal.[12]
On or about 24 April 2024, Ms Hardgrove instructed Law Firm A to represent her.[13] As part of her instructions to Law Firm A, Ms Hardgrove sent correspondence stating:
“Here is the unfair dismissal one. It seems like they have created a case for both and I would have to withdraw one?
Unless there is both an unfair dismissal regarding the termination and a general protection regarding cancelling my transfer to DeepMind and placing me on leave in the first place. I don't know enough about how that works.”[14]
On or about 3 May 2024, Ms Hardgrove had a conference with Law Firm A and discussed the “appropriate avenue and direction of [her] matter”. Ms Hardgrove states at this stage she was confused and not sure if she was in the correct jurisdiction.[15]
On or about 6 May 2024, Ms Hardgrove attended a conference with Law Firm A and Barrister A. Ms Hardgrove stated that during this conference she was advised that she cannot pursue both the UFD Application and the First GP Application, and that she should pursue the UFD Application. Ms Hardgrove stated that it was not explained why she should do that.[16]
At 7:03am (AEST) on 7 May 2024, Ms Hardgrove sent an email to Law Firm A stating:[17]
Regarding the general protections application, I would like to know how compelling is the following:
·the issuance of the improvement notice to Google on 4 April indicating the decision to place me on leave and require an IME was without medical evidence
·the existence of this notice was drawn to the attention of the investigation team and decision maker who considered it in making the decision to terminate me.
·the 14 day deadline by which the business is taken to have accepted the notice in the absence of any appeal
·the apparent urgency of the termination meeting being ordered on 18 April
·after I requested to use annual leave and reschedule in order to sleep and to be fit to attend after travelling, I was instead fired on that day. This occurred although the ER team first indicated they would enquire whether the meeting could be rescheduled but then refused to do so.
Do you have time to advise on the merits of the general protections claim, considering the improvement notice issued by SafeWork, before I wake?
Without your further advice my default position is that the unfair dismissal will be easier to pursue, and hopefully results in reinstatement, which would allow me in conjunction with SafeWork to resolve the various disagreements and reasonable concerns as part of the return to work process.
(Emphasis added).
Ms Hardgrove states that she sent this email because these matters were not addressed during the conference on 6 May 2024. Ms Hardgrove stated that after sending the email she went to bed and when she woke, she saw that she had not received a response and felt her request for advice regarding the merits of the First GP Claim was not being addressed.[18]
Ms Hardgrove then sent a further email to Law Firm A at 9.13pm on 7 May 2024 which stated:[19]
I think I will go the unfair dismissal route.
It is the most obvious.Not only had SafeWork been involved but the relevant IME the basis for which the termination decision was made are the two in December and January. I could not attend the first because I had pneumonia and was required to consent to the second while I was in the hospital emergency department being treated for an allergic reaction to antibiotics (for the pneumonia), which the employer knew about. I obviously could not consent in these circumstances.
The psychosocial risk created by the protracted investigation and social isolation made it difficult for me to respond to the allegations, on top of the various procedural unfairness and shifting reasons they gave over time.
I think unfair dismissal involves the least effort on my part and I would want to seek reinstatement so that they are required to address the improvement notice.
(Emphasis added).
At 9.36pm (AEST) on 7 May 2024, Law Firm A sent a reply by email stating:[20]
Thank you for confirming your instructions.
We did forward your latest documents from SafeWork to the Counsel for an updated advice.
According to the Counsel, the latest correspondence from SafeWork does not change the advice of the Counsel so far as it relates to the General Protections claim.
We shall confirm tomorrow with the Counsel as to whether we should withdraw both applications and lodge a fresh unfair dismissal claim, or otherwise withdraw the general protection claim and proceed with the existing unfair dismissal one.
(Emphasis added).
In her evidence in chief, Ms Hardgrove stated that as at 7 May 2024, she had not been advised that compensation under a general protections application was not capped, whereas under an unfair dismissal application compensation was capped at 6 months’ pay.[21] Ms Hardgrove also stated that she felt that her instructions were being ignored by Law Firm A, that she was not provided with an adequate opportunity to receive advice about whether she should pursue the First GP Application, and that Law Firm A “proceeded” with pursuing the UFD Application.[22]
On 8 May 2024, Ms Hardgrove sent correspondence by email to the Commission, attached to which was a completed Form F50 Notice of discontinuance for the First GP Application. The covering email stated:[23]
Please find attached my notice of discontinuance of the previously lodged protections application. It is my intention to instead pursue the unfair dismissal application already lodged.
Additionally, could you please advise how I may authorise [Law Firm A] to act on my behalf in the unfair dismissal matter? In case this email is sufficient, I authorise them.
(Emphasis added).
On 22 May 2024, Ms Hardgrove participated in a conciliation conference before the Commission in relation to the UFD Application. Ms Hardgrove was represented by Law Firm A and Barrister B at the conciliation conference as Barrister A was not available. Ms Hardgrove stated during the conciliation conference, it became apparent to her that there was no prospect of reinstatement and that the issues in the unfair dismissal matter were too narrowly focused and did not address the real issues of concern.[24]
Notwithstanding Ms Hardgrove’s concerns, the conciliation conference ended with Ms Hardgrove being granted a 7-day period to consider a settlement proposal.[25]
On 24 May 2024, Ms Hardgrove sent an email to the Australian Human Rights Commission stating:[26]
“Hello
I was dismissed after failing to consent to attend an IME, which was requested after I raised complaints about workplace psychosocial hazards.
I have an unfair dismissal application under foot and wish to know whether, if a dismissal is being challenged on procedural fairness grounds, I may make a parallel application with the AHRC in relation to bullying?
I think the repeated demands I attend an IME without engaging in genuine dialogue about matters that impact on worker psychosocial wellbeing are a contravention of the Safe Work Act and constitute bullying. The unfair dismissal would not be seeking to address that: only to show either that it wasn't a reasonable and lawful direction or that there were procedural fairness issues in the dismissal process.
Conciliation is open on the unfair dismissal until the 29th morning so I would appreciate your earliest response so that I may consider it in my decision whether to withdraw the unfair dismissal application and file in a different jurisdiction.
Thank you”
(Emphasis added).
On 25 May 2024, Ms Hardgrove sent lengthy correspondence to the Commission seeking ‘permission’ to lodge a general protections application out of time, which relevantly stated:[27]
“This is an extremely unusual situation where the jurisdiction is contested and I have not had access to the material facts upon which both my dismissal and decision making under WHS legislation rest. I would like leave for an extension of time to file a general protections claim until the outcome of my request for a review of decision RAC24-101-102 with IPC is finally determined.”
On or before 28 May 2024, Ms Hardgrove sent correspondence to the Commission advising that she rejected Google’s settlement proposal.[28]
On 28 May 2024, Law Firm A sent an email to Ms Hardgrove titled “Clear Instructions Required”, attached to which was a letter stating:[29]
Advise and act for you in relation to your employment dispute before the Fair Work Commission.
We refer to our earlier correspondence on the matter.
We have gone through the emails you sent to us over the weekend and confirm that:
1.At the conclusion of the conciliation conference, Google offered you [Redacted] as the full and final settlement of all claims, including other features such as converting termination into resignation and statement of service. Obviously, the full and final settlement would mean that you would be barred from proceeding with any other matters against Google, except for a workers' compensation and statutory superannuation claim.
2.You have emailed the conciliator to confirm that you have decided to reject the offer.
3.You have also emailed the Commission with a request to re-lodge an application under the general protections provision.
4.You have emailed us indicating your options for reviewing the SafeWork findings and contacting the office of DPP regarding the criminal charges against Google for potential violation of WHS Act provisions.
We observe the following:
5.So far, we have obtained expert legal advice from two Counsels, namely, [Barrister A] and [Barrister B], both of whom were of the view that lodging a general protections claim is unlikely to put you in a better position to have your employment with Google reinstated. We note that reinstatement is your preferred remedy.
6.We also advised you of the time limit within which a general protections claim can be lodged as of right.
7.We note that our Counsel, [Barrister B], advised you during the conciliation that under the unfair dismissal claim, the offer that you received from Google was reasonable considering all the remedies available under that jurisdiction and recommended that you should consider the offer seriously.
8.We note that you were uncomfortable with the fact that accepting the offer would settle all your claims against Google and potentially all its employees associated with the proceedings.
9.We cannot decide for you, and it is always your decision to make whether you accept or reject an offer.
10.As you have decided to reject the offer, the next step in relation to the unfair dismissal claim is for the Fair Work Commission to list the proceedings for directions at which it will set:
a.A timetable for the parties to lodge their evidence and
b.A date for the hearing.
11.We further note that you have written emails to the Commission directly indicating your intention to withdraw the unfair dismissal proceedings and lodge a fresh claim under general protections out of time.
12.In our opinion, a general protections claim will be more complex and challenging to establish than an unfair dismissal claim. Furthermore, you can only lodge such a claim now with the leave of the Commission, as it is out of time. We opined that it is unlikely that you will be granted this leave.
13.It will likely be easier for Google to defend a general protections claim because of the different legal thresholds that apply to each jurisdiction.
14.With the benefit of our advice, you advise that you have considered both of your options carefully and decided to make a general protections claim and withdraw the unfair dismissal claim.
15.We opine that your prospect of reinstatement into employment was very low under both unfair dismissals and general protections jurisdiction.
16.We advised you that there is a maximum award of compensation under the jurisdiction of unfair dismissals, and we further note that you expressed your concerns that even if maximum compensation is awarded, it would not be adequate to compensate you for your loss of employment with Google.
17.Although there is no maximum award of compensation under general protections jurisdiction, it is more complex and challenging to prove such a claim.
Next Steps
18.Please confirm whether you want to proceed with the unfair dismissal claim, in which case the matter will be scheduled for a hearing before the Commission.
19.Should you decide to withdraw the unfair dismissal claim and lodge a general protections claim out of time, we will not act for you. We have provided you with advice in relation to the time limit within which to lodge a general protections claim. We cannot mislead the Commission, accordingly, it is not in your interest to have us act for you in relation to this claim.
20.Please confirm your decision by 3:00pm on 29 May 2024 (Sydney time).
21.Please confirm your instructions as to whether you want [sic] to act for reviewing the SafeWork findings. This would be a separate matter to look at from your unfair dismissal claim.
22.Please note that it is difficult for us to act for you if you contact other parties without informing us in advance. It is equally difficult for us to act for you if you do not provide us with clear instructions as to what you want out of the proceedings and what your expectations are. Please note that the legal framework might act differently than what you would expect.
(Emphasis added).
Later that day, Ms Hardgrove sent a reply to Law Firm A stating:[30]
I cannot respond to your letter in time because I just woken up and it is 6:47am here.
Neither of the barristers have seen the letter from Jess where she specifically I dictated that I was required to attend the IME to meet their WHS requirements.
[Barrister B] told me accepting that offer would bar me from pursuing the matter with SafeWork and sooo.
I don’t have clear advice to act on and don’t know whether a claim at AHRC may be possible.
All [Barrister B] said was that they are quite technical.
[Barrister A] hasn’t reviewed the information sent over the weekend and I couldn’t get it drop [sic] my union until I was at conciliation because they don’t feel it’s urgent enough.
I can’t make a decision on this because I don’t have enough information. So I have to guess what to do.
If it listed [sic] for hearing and I get more information later, can I withdraw the matter and lodge in another jurisdiction?
You have told me the SafeWork and unfair dismissal re [sic] separate but [Barrister B] told me I cannot pursue criminal charges against Google (or Aideen) if I settle unfair dismissal. This is really confusing.
A short time later Ms Hardgrove sent further correspondence to Law Firm A stating:[31]
I also haven't said I intend to withdraw the unfair dismissal, but asked if it is possible to get an extension of time for general protections because it's unclear to my [sic] which jurisdiction applies after receiving the decision to set aside the safe work notice.
Is it possible to have a phone call?
There is a lot of uncertainty in the various correspondence and it's hard to resolve it by email.
Thanks.
(Emphasis added).
Law Firm A sent a response to Ms Hardgrove advising that the matters raised by her will be discussed in a meeting on 29 May 2025. There is no evidence before of what was discussed at that meeting.
On 31 May 2024, Ms Hardgrove sent correspondence to the Commission titled “Procedural questions” stating:[32]
Hello
I have not had any chance to conciliate the unfair dismissal matter or explain my point of view because the barristers just talked to each other instead of discussing with me.
How much time do I have to withdraw a complaint and file in another jurisdiction?
Does unfair dismissal preclude an application at the AHRC or are parallel claims?
Thanks
(Emphasis added).
On 6 June 2024, the Chambers of Deputy President Easton sent correspondence in reply to Ms Hardgrove stating:[33]
I refer to the above matter and advise that the matter is now with Deputy President Easton’s Chambers for allocation.
Deputy President Easton advises that the Commission is not able to provide legal advice on your application. However, provides the following general information.
You are able to withdraw your unfair dismissal application with the Commission at any time. Per ss.725 – 732 of the Fair Work Act 2009 (Cth) you are not able to have multiple applications on foot at the same time relating to the ending of your employment. You should seek specific legal advice from your representative on your circumstances to determine which application is best for you.
Please advise by no later than 5:00pm AEST Friday 21 June 2024 if you wish to continue with your unfair dismissal application.
(Emphasis in original).
Ms Hardgrove subsequently requested and was granted an extension until Wednesday 26 June 2024.[34]
On 26 June 2026, Ms Hardgrove sent correspondence to the Chambers of Deputy President Easton stating:[35]
Could you please push this deadline until Friday so that I have a chance to hear advice from another counsel? Given the extremely sensitive circumstances involved in the dismissal, I would appreciate the opportunity to hear this before it is listed.
(Emphasis added).
Ms Hardgrove was granted the requested extension of time.[36]
On 28 June 2024, Ms Hardgrove sent correspondence to the Chambers of Deputy President Easton stating:[37]
I intend to continue the unfair dismissal application but request another week before the matter is listed for a hearing.
I have briefed new counsel who advise the significant volume of correspondence requires another week to thoroughly review, in an effort to resolve by conciliation.
I would appreciate the opportunity to present an argument in conciliation before the matter becomes public, given it involves allegations regarding extremely sensitive personal information and allegations over my mental fitness.
(Emphasis added).
On 3 July 2024, the UFD Application was reallocated to my Chambers.[38] I conducted a case management hearing on 8 July 2024. Ms Hardgrove was represented at the case management hearing by her new lawyers, Law Firm B.
On 12 July 2024, the UFD Application was listed for conciliation before me. Ms Hardgrove was represented by Law Firm B. The outcome of the conciliation conference was that the parties reached a settlement in principle.[39]
On 29 July 2024, my Chambers sent correspondence to the parties in the UFD Application, seeking an update on the status of the matter.[40]
Later that day, Ms Hardgrove sent correspondence to my Chambers which relevantly stated:[41]
I’m not satisfied with the current terms of the settlement.
It’s not reasonable that an employer can fabricate an allegation of a worker being in psychological shock, when that is patently untrue, and then lock them out of a workplace for raising safety issues around workplace bullying.
I have new information from the GIPA process that suggests general protections or the AHRC might be a more appropriate jurisdiction, especially as the behaviour of the respondent suggests they are unwilling to consider reinstatement.
t over the wrongdoings of
On 31 July 2024, my Chambers sent the correspondence to the parties in the UFD Application advising of the hearing date and directions for the preparation of the matter for hearing. That correspondence also included the following:[42]
Finally, it is noted that the Applicant stated she might pursue a different type of Application. If that is the case and the Applicant does not wish to pursue this matter, that should be communicated to the Chambers of Commissioner Ryan as soon as possible.
On 15 August 2024, Ms Hardgrove attended a conference with lawyers from Law Firm B and a new barrister, Barrister C. Ms Hardgrove states that she was provided with advice and options during that conference.[43]
On 21 August 2024, Ms Hardgrove instructed Law Firm B to discontinue the UFD Application and lodge a general protections application involving dismissal.[44] Ms Hardgrove stated that she did so because she “did not think [the UFD Application] was the appropriate action to take” and wanted to “stop costs from being further incurred” in relation to the UFD Application.[45] The UFD Application was discontinued later that day. The Commission’s notice of discontinuance form provides for three options:
1. The applicant wholly discontinues the matter;
2. The applicant wholly discontinues this matter as part of a settlement agreement;
3. The applicant wholly discontinues this matter to pursue an alternate application.
The notice of discontinue filed in relation to the UFD Application selected the first option, that Ms Hardgrove wholly discontinues the matter.
Ms Hardgrove stated that between 21 August 2024 and 17 September 2024, she was exchanging emails with Law Firm B on “an almost daily basis” seeking updates on the preparation of the general protections application. Under cross examination, Ms Hardgrove stated that the first draft contained considerable factual errors which needed to be corrected, and it took several requests by her to correct those matters.[46]
On 17 September 2024, the draft application was sent to Barrister C to review and settle.[47]
On 18 September 2024, Barrister C requested copies of Ms Hardgrove’s contract of employment and the letter of termination. These were provided on 19 September 2024.[48] Barrister C provided a final draft of the general protections application to Law Firm B and Ms Hardgrove on 24 September 2024.[49]
Ms Hardgrove stated that she then went through the draft application with Law Firm B and there were “a few rounds of amendments.” Ms Hardgrove stated that this phase of preparing the application was hampered by the different time zones in which Ms Hardgrove and Law Firm B were located and injuries she had suffered during a flight from Paris to Los Angeles.[50]
On 15 October 2024, Law Firm B lodged the Second GP Application. The Second GP Application was subsequently allocated to my Chambers.
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, 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.[51] 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.[52]
The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[53]
I now consider these matters in the context of this application.
s.366(2)(a) – Reason for the delay
The FW 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. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, however all of the circumstances must be considered.[54]
Ms Hardgrove submits the following reasons for the delay:
(i)Representative error;
(ii)Medical incapacity; and
(iii)Impact of time zone/geographical location.
Representative error
In written submissions filed on behalf of Ms Hardgrove it was submitted that the fundamental reason for the delay is that she received incomplete or negligent advice that her original general protections dismissal application was not the appropriate form of legislative remedy for her to pursue in relation to her dismissal.
It was submitted that the advice provided by Law Firm A, Barrister A and Barrister B was incomplete or negligent because:[55]
a. the Applicant had workplace rights within the meaning of s. 341(1)(c)(i) and (ii) of the FW Act to make complaints to her employer in relation to her employment, and to the regulator SafeWork NSW (SafeWork);
b. the history of the Applicant’s employment shows that she exercised those workplace rights on several occasions during her employment (namely, 7 July 2023, 8 November 2023 and 5 December 2023), such that the Applicant was afforded the protection against ‘adverse action’ being taken by Google because she exercised those rights (s. 340(1)(a));
c. that history also shows that there was a series of escalating disciplinary actions taken by Google after the Applicant made her complaints to both Google and SafeWork, culminating in a form of adverse action identified in s. 342 of the FW Act, namely the Applicant’s dismissal;
d. the Applicant was also entitled to the protection against discrimination in her employment on the basis of a physical or mental disability under s. 351 of the FW Act;
e. the Applicant’s employment history shows that she was directed by Google to attend psychiatric IME’s apparently on the basis that a mental disability was imputed to her by her employer;
f. the general protections application would attract the operation of the ‘reverse onus of proof’ under s. 361 of the FW Act;
g. there is no legislative cap on the amount of compensation that may be awarded to the Applicant in a general protections application;
h. reinstatement is a remedy that may be granted in a general protections application (just as in an unfair dismissal application).
It was submitted that based on the incorrect advice given to Ms Hardgrove, the First GP Application was incorrectly withdrawn against Ms Hardgrove’s preference, and that the delay in commencing the Second GP Application fundamentally arises from this erroneous advice.
It was also submitted that the length of delay in making the Second GP Application after the UFD Application was discontinued was due to Law Firm B’s delay in preparing the application.
In oral submissions, Ms Hardgrove submitted that the volume of evidence was overwhelming and she had difficulty understanding the relevant facts of her case in order to form an opinion of the most appropriate jurisdiction.
Ms Hardgrove submitted that her legal representatives were resistant to running a general protections application and she did not receive advice relating to the merits of a general protections application until she spoke with Barrister C. Ms Hardgrove submitted that because of the statutory time limit she felt she had to pursue the UFD Application.
The giving of wrong advice by a legal or industrial representative or advisor is a species of representative error.[56] The relevant principles of representative error were established in Clark v Ringwood Private Hospital[57] (Clark) and were summarised by the Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal & Islander Child Care Agency[58] as follows:
‘In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be considered.’[59]
Having regard to these principles and the evidence before me, I am not satisfied that there is any basis to contend that representative error, whether through alleged incomplete or negligent advice, or delay, is an acceptable or reasonable explanation for the following reasons.
First, Ms Hardgrove contends that the incomplete or negligent advice was given during conferences with Law Firm A on 3 May 2024, Law Firm A and Barrister A on 6 May 2024, and Law Firm A and Barrister B on 22 May 2024. In each case, Ms Hardgrove has not particularised the questions or advice she sought or the response that was given. Although Ms Hardgrove sent correspondence to Law Firm A on 7 May 2024 seeking further advice, including advice on the merits of a general protections application in light of correspondence from SafeWork NSW, Law Firm A confirmed later that day that the SafeWork NSW correspondence does not change the advice of Barrister A given on 6 May 2024.
Second, the email correspondence sent by Ms Hardgrove to Law Firm A on 7 May 2024 refers to the UFD Application being “easier to pursue”, “the most obvious”, and “the least effort”. It is difficult to see how Ms Hardgrove was able to form those views if she had not received any advice about the merits of the First GP Application and the way in which a general protections application proceeds through the Commission and the Federal Court, compared to pursuing the UFD Application.
Third, the matters set out in Ms Hardgrove’s submissions as purportedly justifying the receipt of incomplete or negligent advice[60] are no more than generalised statements regarding alleged factual matters, the rights and entitlements under Part 3-1 of the FW Act, matters relevant to the conduct of a general protections court application, and the remedies that might be awarded. They cast no light on whether Ms Hardgrove was provided with incomplete or negligent advice.
Fourth, I reject Ms Hardgrove’s contention that Law Firm A “proceeded” with pursuing the UFD Application contrary to her wishes. That contention flies in the face of the correspondence that she sent to the Commission on 8 May 2024 stating it was her intention to pursue the UFD Application.
Fifth, the correspondence sent to Ms Hardgrove by Law Firm A on 28 May 2024 refers to Ms Hardgrove having received advice regarding general protections applications from Barrister A, Barrister B and Law Firm A, including, contrary to Ms Hardgrove’s evidence, advice about the compensation limits that apply in the different applications. That correspondence also refers to the advantages and disadvantages of the different application types and requests that Ms Hardgrove provide instructions as to how she wishes to proceed. There is nothing in that correspondence that could be characterised as Law Firm A acting against, or resisting, Ms Hardgrove’s instructions.
Sixth, the contention that the delay in making the Second GP Application arose from the erroneous advice regarding the withdrawal of the First GP Application is inconsistent with Ms Hardgrove seeking advice from her new lawyers, Law Firm B, in late June 2024 and her subsequent correspondence to the Commission that she wishes to continue with the UFD Application. To the extent that Ms Hardgrove contends that Law Firm B also railroaded her into continuing with the UFD Application, there is no evidence to support that.
Seventh, there is no evidence of the advice provided by Barrister C, and how that differed from, or was more complete and/or accurate than the advice provided by Law Firm A, Barrister A, or Barrister B in relation to Ms Hardgrove’s decision to pursue the UFD application on 8 May 2024, or Law Firm B in relation to Ms Hardgrove’s decision to pursue the UFD Application on 28 June 2024.
Eighth, there is no evidence to support the contention that the delay in making the Second GP Application be apportioned to Law Firm B. In the period between 21 August 2024 and 17 September 2024, Ms Hardgrove described the frequency of her email communications with Law Firm B as being “almost daily.”[61] Ms Hardgrove also stated that upon receiving the draft application prepared by Barrister C, it took “a few rounds of amendments” between her and Law Firm B to finalise it. Despite referring to the existence of almost daily written communications and “a few rounds of amendments”, Ms Hardgrove has not sought to tender any of that material into evidence or otherwise explained how (or why) any delay over this period should be properly apportioned to Law Firm B. In the absence of this material, I cannot be satisfied that Ms Hardgrove was blameless, noting that the conduct an applicant is a central consideration in deciding whether representative error provides an acceptable or reasonable explanation for the delay.
Representative error - conclusion
There is simply no evidence to support what is described as the fundamental reason for the delay: that Ms Hardgrove was provided with negligent or incomplete advice. That a written submission of that nature was made by Barrister C against Law Firm A, Barrister A and Barrister B in the absence of any direct evidence of the advice those legal practitioners provided is concerning to say the least. There is also no evidence to support a conclusion that Ms Hardgrove was blameless in relation to that part of the delay following the discontinuance of the UFD Application.
On the material before me, there is no reason to doubt that the legal advice and conduct of Law Firm A, Barrister A, Barrister B and Law Firm B was anything other than sound. It follows that I do not consider that representative error is an acceptable or reasonable explanation for the delay in making the Second GP Application.
Medical incapacity
Ms Hardgrove submitted that she suffered a number of physical injuries which affected her mobility and capacity throughout the period of delay.[62]
In Victor Blanco v White Bathroom,[63] Deputy President Easton set out a helpful summary of the relevant authorities in the context of an application for an extension of time as follows:
[44] Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.
[45] In Roberts v Westech IT Solutions Pty Ltd. Senior Deputy President O’Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the Applicant’s depression. The Applicant provided advice from his doctor that included details of the Applicant’s clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the Applicant also said he had been “given the run around by the phone system which took some time to navigate around”, the effect of which appears to have been made worse by the Applicant’s mental health.
[46] Similarly in Beard v Valley Industries Limited Deputy President Saunders found that there were exceptional circumstances “as a result of the significant deterioration in his mental state shortly after his dismissal, [the applicant] was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal.” In that matter the Applicant’s claim was supported by medical evidence from his GP, including evidence that two different medications prescribed to the Applicant that had negative side effects. The Deputy President noted that “after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission”.
[47] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual.
[48] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the Applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however “[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period.” The Full Bench affirmed the finding at first instance that the medical evidence “did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame” and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O’Callaghan in Roberts but found “the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context.”
[49] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant’s evidence from her treating psychologist concerning her “major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder” primarily by reference to the psychologist’s assessment of the Applicant’s capacity to act. The Full Bench endorsed the finding at first instance that on the evidence “the appellant’s mental state did not prevent her capacity to engage in day to day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay.”
[50] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit without proper and specific medical evidence.
[51] In summary the following principles apply:
(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the Applicant’s capacity to lodge the application within the statutory time limit (per Roberts, Beard and Underwood);
(iii) the evidence should positively demonstrate that the Applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Beard, Underwood and Merhi); and(iv) an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).
[Footnotes omitted]
In Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd,[64] a Full Bench of the Commission stated:
[26] There was no medical evidence concerning the reason for delay in filing the Application between the expiry of the 21-day period on 18 January 2023 and when the application was filed on 9 February 2023. The absence of any such evidence left the Deputy President with no basis upon which she could find there where was a credible explanation for that period of delay.
[27] In an appeal of a decision that dealt with the granting of an extension of time for a late application for an unfair dismissal remedy, the Full Bench in Australian Postal Corporation v Lili (Karen) Zhang (Zhang) was required to similarly consider medical evidence advanced in support of the claim that the applicant in that matter had been incapacitated by trauma, stress and depression. The Full Bench relevantly stated as follows in relation to the absence of direct medical evidence going to the period of delay:“[21] Drawing on the above, it does not appear that Ms Zhang was incapacitated for the period January 2015 until 24 April 2015 when her application was received by the Commission when, based on her own submissions, she was attending interviews for jobs. Nor does it appear that she was incapacitated prior to 20 September 2014 when she collected her possessions from Australia Post. More significantly, however, it is not clear to us on what basis the Commissioner felt qualified to make a determination that Ms Zhang suffered from PTSD in the immediate aftermath of her termination.
[22] In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application.”
[28] The Full Bench’s comments in Zhang stand for the proposition that more than lay person opinion is required to support a claim that a person was medically incapacitated such that they could not have filed an application for a general protections dismissal or unfair dismissal application earlier than they did. We concur with the Full Bench’s comments in Zhang that ‘compelling medical evidence’ is required to support a conclusion that the reason for the delay was due to the individual’s medical condition. The Deputy President in the present matter had no medical evidence before her, let alone ‘compelling medical evidence’, to explain the delay in filing the Application. Were the Deputy President to have accepted the Appellant’s opinion that she was medically incapacitated between 28 December 2022 and 9 February 2023, the Deputy President would in our view have fallen into the same error identified by the Full Bench in Zhang.
In Woolworths Limited v Lin,[65] a Full Bench of the Commission found that medical evidence that was generalised and did not address an applicant’s capacity to make an unfair dismiss application was not sufficient to explain the reason for the delay.[66]
The authorities set out above are clear that if a medical condition or incapacity is relied on, there should be compelling medical evidence demonstrating that it had a material impact upon an applicant’s capacity to make an application within the statutory time limit and that an applicant’s self-assessment of their medical or psychological incapacity is unlikely to be sufficient.
There is no medical evidence before me that speaks to Ms Hardgrove’s medical conditions or incapacity. In the proceedings before me, Ms Hardgrove stated that she provided medical evidence to Law Firm B and submitted (or at least questioned) whether Law Firm B’s purported failure to provide that information to the Commission constituted representative error.[67]
I do not accept this submission. Ms Hardgrove communicated regularly with her legal representatives and the Commission by email. As stated earlier, in the period between 21 August 2024 and 17 September 2024, Ms Hardgrove described the frequency of her email communications with Law Firm B as being “almost daily.”[68] If Ms Hardgrove did provide medical evidence to Law Firm B, along with instructions to submit to the Commission that she was incapacitated and that her incapacity contributed to the delay in making the Second GP Application, then it is most likely there would be email correspondence evidencing that.
However, even if there was medical evidence regarding Ms Hardgrove’s medical condition or incapacity, that does not require the Commission to conclude that simply because it declares a person to be suffering from a relevant condition that it renders the person incapable of completing and lodging an application under the FW Act within the required time.[69] The opinion of a person’s medical practitioner or treating professional is a relevant consideration to be taken into account together with all the other available information before the Commission.[70]
The other available information relevant to my consideration is that Ms Hardgrove made applications to the Commission on 18 April 2024 and was regularly communicating in writing with her legal representatives and the Commission up to 21 August 2024. There is nothing in those communications that supports a conclusion that Ms Hardgrove’s physical injuries were such to prevent or delay the making of the Second GP Application. From 21 August 2024 to 15 October 2024 – the period during which Ms Hardgrove contends she was suffering from a number of physical injuries – Ms Hargrove was able to communicate on an almost daily basis with Law Firm B, as well as review and amend the draft application.
For the reasons set out above, I am not satisfied that medical incapacity is an acceptable or reasonable explanation for the delay.
Impact of time zone/geographical location
Ms Hardgrove contends that the time difference between her overseas location and Australia had a “significant impact” in preparing the Second GP Application.
I accept that the time difference between those locations will cause some delay and inconvenience. However, Ms Hardgrove has not demonstrated how the time difference had a “significant impact” on the preparation of the Second GP Application. As stated earlier, Ms Hardgrove has been located predominantly overseas since at least April 2024 and the time difference does not appear to have had any significant impact. In that time, Ms Hardgrove made two applications on 18 April 2024 and has regularly corresponded with the Commission and her legal representatives,
Accordingly, I am not satisfied that the time difference and/or Ms Hardgrove’s location is an acceptable or reasonable explanation for the delay.
Reason for delay - Conclusion
For the reasons set out above, I do not consider the matters raised by Ms Hardgrove, individually or together, constitute an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances.
s.366(2)(b) – Action taken to dispute the dismissal
Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[71]
In Hunter Valley Developments Pty Ltd v Cohen[72], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[73]
Ms Hardgrove submitted that she took action to contest her termination by making the UFD application and the First GP Application on the day of her dismissal.
Google does not dispute that Ms Hardgrove took this action to contest her termination. However, Google submits that it was entitled to believe that any active contest ceased on 21 August 2024, when Ms Hardgrove wholly discontinued the UFD Application and then did not make the Second GP Application for 55 days.
In reply, Ms Hardgrove submitted that Google was on notice from 29 July 2024 that she was considering making a general protections application.
I accept that Ms Hardgrove took action to contest her dismissal by making the UFD Application and the First GP Application, and by sending the correspondence dated 29 July 2024 stating that she was considering making a general protections application.
The correspondence sent on 29 July 2024 was sent 23 days prior to discontinuing the UFD Application. The Second GP Application was then made 55 days after the UFD Application was discontinued. The combined effect of the UFD Application being wholly discontinued and the period of time that elapsed between that discontinuance and the making of the Second GP Application supports a view that Google was allowed to believe that the matter was finally concluded.
In the circumstances of this matter, and having regard to the competing positions, I consider this factor is a neutral consideration.
s.366(2)(c) – Prejudice to the employer
Google submitted that upon Ms Hardgrove discontinuing the UFD Application, it was entitled to assume that she no longer contested her dismissal and that it could proceed to re-allocate Ms Hardgrove’s duties. Google submitted that it will be prejudiced if an extension of time is granted.
Ms Hardgrove submitted that there will be no prejudice to Google if the extension of time is granted. Ms Hardgrove submitted that despite the information on the notice of discontinuance, Google was on notice that a general protections application or complaint to the Australian Human Rights Commission was being considered.
Beyond making the bare assertion, Google did not lead any evidence as to how it has dealt with Ms Hardgrove’s role or duties since 18 April 2024. Accordingly, Google has not demonstrated how, or to what extent, it will be prejudiced if the extension of time is granted.
Having said that, it is well accepted that a lengthy delay gives rise to a general presumption of prejudice.[74] In the context of a general protections application, a 159-day delay can only be described as lengthy. If no other application had been made prior to the Second GP Application, I would have found the length of delay as giving rise to a relevant prejudice.
However, Ms Hardgrove made the UFD Application on the same day as her dismissal and discontinued that matter about 2 weeks prior to the hearing. Those circumstances mitigate against any presumption of prejudice.
Accordingly, I cannot identify any prejudice that would accrue to Google, if an extension of time were to be granted. Despite that, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.
s.366(2)(d) – Merits of the application
The FW Act requires me to take into account the merits of the application in considering whether to grant an extension of time.
Ms Hardgrove submits that the merits are strong and establish a sound basis for an allegation of conduct constituting unlawful adverse action. Ms Hardgrove submits that after she made complaints to Google and SafeWork NSW, Google engaged in range of prejudicial behaviour towards her. This included making an allegation that she was unwell, directing her to attend an IME, cancelling the job transfer to Google DeepMind, and directing her not to attend work until she had attended an IME.
Google rejects Ms Hardgrove’s contentions and submits the sole reason for her dismissal was Ms Hardgrove’s refusal to attend an IME. Google submits that it had genuine concerns for Ms Hardgrove arising from a number of different issues which justify its decision to issue that direction.
It is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
s.366(2)(e) – Fairness as between the person and other persons in a similar position
Ms Hardgrove submitted that this factor is not relevant in this case.
Google submitted that this factor should weigh against a finding that there are exceptional circumstances having regard to the approach taken by the Commission in other cases.
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.”[75]
There have been a number of cases before the Commission where an applicant has lodged an unfair dismissal application or a general protections application involving dismissal before withdrawing that application and lodging the alternative application. The Commission has generally found that there is nothing unusual about this and, without more, this circumstance is not an acceptable or reasonable explanation for the delay.[76]
Adopting a position as to fairness between Ms Hardgrove and other persons in a similar position, this factor does not weigh in favour of a conclusion that there are exceptional circumstances.
Conclusion
Whether to make an unfair dismissal application or a general protections application is a decision many applicants seeking to contest their dismissal encounter each day. In this matter, Ms Hardgrove made two dismissal related applications on the day of her dismissal. The multiple actions provisions set out at ss.725-732 of the FW Act prevent Ms Hardgrove from continuing with both of those applications. Ms Hardgrove received legal advice in relation to both applications and made the forensic decision to pursue the UFD Application. At that stage she was still within 21 days of her dismissal.
In late June 2024, Ms Hardgrove foreshadowed pursuing the matter in a different jurisdiction and was granted an opportunity by the Commission to seek legal advice. After seeking advice from new lawyers, Ms Hardgrove made another forensic decision to pursue the UFD Application.
As it turns, Ms Hardgrove later withdrew the UFD Application and commenced the Second GP Application. It is not unusual or exceptional for an applicant choosing to challenge a dismissal by first filing an unfair dismissal application before withdrawing it and filing a general protections application instead.
However, where a new application is made, any applicable time limit must be complied with unless an extension of time is granted. An extension of time can only be granted if the Commission is satisfied that there are exceptional circumstances having regard to the matters set out in s.366(2) of the FW Act. The test of ‘exceptional circumstances’ establishes a ‘high hurdle’.
Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by Ms Hardgrove and Google, I am not satisfied that there are exceptional circumstances. In undertaking this evaluative assessment, I have taken into account each of the matters set out in s.366(2)(a) to (e). I have found that these matters weigh against a finding of exceptional circumstances (s.366(2)(a)), do not weigh in favour of a finding of exceptional circumstances (s.366(2)(e)), or are neutral (s.366(2)(b), (c), and (d)).
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2).
Accordingly, this application must be dismissed. An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
C. Hardgrove, the Applicant.
S. Marriott, of Australian Industry Group for Google Australia Pty Ltd.
Hearing details:
2025.
Sydney (via Microsoft Teams video-link):
30 January.
[1] See s.366 of the FW Act.
[2] Exhibit A1 at [10].
[3] Exhibit A1 at [11].
[4] Exhibit A1 at [13].
[5] Exhibit A1 at [14]-[15].
[6] Exhibit A1 at [17].
[7] Exhibit A1 at [16]-[20].
[8] Exhibit A1 at [18], [21] and [23].
[9] Exhibit A1 at [22].
[10] Exhibit A1 at [24]; Form F8A, Annexure 6; Transcript at PN360.
[11] Exhibit R1 (HB2 at p.10).
[12] Exhibit A1 at [29]; Transcript at PN360.
[13] Exhibit A1 at [37]; Exhibit A2 at [7].
[14] Exhibit A2 at [7].
[15] Exhibit A2 at [8].
[16] Exhibit A2 at [9].
[17] Exhibit A2 at [10]; Exhibit R1 (HB2 at p.11).
[18] Exhibit A2 at [11]-[12].
[19] Exhibit A2 at [12]; Exhibit R1 (HB2 at p.12).
[20] Exhibit A2 at [13]; Exhibit R1 (HB2 at p.12).
[21] Exhibit A2 at [15].
[22] Exhibit A1 at [39]-[40]; Transcript at PN766-PN790.
[23] Exhibit A2 at [16]
[24] Exhibit A1 at [41]; Exhibit A2 at [18].
[25] Exhibit A3 (HB2 at pp.175-176); Exhibit R1 (HB2 at p.16).
[26] Exhibit A2 at [19].
[27] Exhibit A2 at [20]; Exhibit A3 (HB2 at pp.163-165).
[28] Exhibit R1 (HB2 at p.16).
[29] Exhibit R1 (HB2 at pp.16-18),
[30] Exhibit A2 at [22]-[24]; Exhibit R1 (HB2 at p.19).
[31] Exhibit R1 (HB2 at p.20).
[32] Exhibit A3 (HB2 at p.173).
[33] Exhibit A3 (HB2 at p.172).
[34] Exhibit A3 (HB2 at pp.168-169).
[35] Exhibit A3 (HB2 at p.167).
[36] Exhibit A3 (HB2 at p.166).
[37] Exhibit A3 (HB2 at p.166).
[38] Exhibit R1 (HB2 at p.4).
[39] Exhibit A1 at [42]-[43]; Exhibit R1 (HB2 at p.9).
[40] Exhibit R1 (HB2 at p.9).
[41] Exhibit R1 (HB2 at p.8).
[42] Exhibit R1 (HB2 at p.7).
[43] Exhibit A1 at [50]-[52].
[44] Exhibit A1 at [53]-[54]; Transcript at PN759.
[45] Exhibit A1 at [53].
[46] Exhibit A1 at [55]; Transcript at PN757, PN763.
[47] Exhibit A1 at [55].
[48] Exhibit A1 at [56].
[49] Exhibit A1 at [57].
[50] Exhibit A1 at [57]; Transcript at PN713, PN988.
[51] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty) at [13].
[52] Ibid.
[53] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[54] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[55] Applicant’s Outline of Submissions at [24].
[56] Carlito Cruz v Australia Post Corporation [2008] AIRCFB 452 at [35].
[57] (1997) 74 IR 413.
[58] (1988) 105 IR 1.
[59] Davidson at p.6.
[60] See paragraph [70] above.
[61] Transcript at PN763.
[62] Exhibit A1 at [61]; Transcript at PN713-PN715, PN988.
[63] [2021] FWC 4694 at [44]-[51].
[64] [2023] FWCFB 113 at [26]-[28], citing Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285.
[65] [2018] FWCFB 1643.
[66] Ibid at [67].
[67] Transcript at PN713-PN726.
[68] Transcript at PN763.
[69] Weir v HydroChem Pty Ltd[2017] FWCFB 758 at [37].
[70] Ibid.
[71] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[72] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.
[73] Ibid at [19].
[74] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 556; Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300; GHD Pty Ltd T/A GHD v Kevin Alan Black[2023] FWCFB 38 at [51].
[75] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 at [41].
[76] See for example, GHD Pty Ltd T/A GHD v Kevin Alan Black[2023] FWCFB 38 at [77-[78]; Karen Tan v Viv May, Lisa Miscamble, Kathryn Baget-Juleff, Wingecarribee Shire Council[2025] FWC 548 at [47]-[48], [57], upheld on appeal in Karen Tan v Wingecarribee Shire Council and Others [2025] FWCFB 88; Catherine Kennedy v Reece Australia Pty Ltd [2023] FWC 1098 at [27]-[28].
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