Deborah Holzer v Melbourne Grammar School

[2024] FWC 3315

[2024] FWC 3315

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Deborah Holzer
v

Melbourne Grammar School

(C2024/7707)

DEPUTY PRESIDENT COLMAN MELBOURNE, 29 NOVEMBER 2024

Application made under s 365 – whether to extend time – application dismissed

1. Deborah Holzer has made an application under s 365 of the Fair Work Act 2009 (Act) in which she alleges that she was dismissed by Melbourne Grammar School (MGS) in contravention of the general protections provisions in Part 3-1 of the Act. Section 366(1) requires that such applications be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2). Ms Holzer’s dismissal occurred on 26 September 2024. The 21-day period ended on 17 October 2024. The application was lodged on 24 October 2024. For the application to proceed, Ms Holzer requires an extension of time. The Commission may allow a further period only if it is satisfied that there are ‘exceptional circumstances’, taking into account the factors in s 366(2)(a) to (e) of the Act.

1. As to the reason for the delay (s 366(2)(a)), Ms Holzer submitted that she initially lodged an unfair dismissal application by mistake, and that it was a simple case of using the wrong form. Ms Holzer also submitted that she and her previous representative (her ‘life partner’) then considered making an unlawful termination application and on 17 October 2024 they sought information from the Commission about what was the ‘correct’ application to make but received no substantive reply. After receiving MGS’s F3 response, Ms Holzer and her representative concluded that she should have filed an application under s 365 rather than an unfair dismissal application. They discontinued the unfair dismissal application and lodged a s 365 application instead.

1. These matters do not constitute a good reason for the delay. First, I do not accept that Ms Holzer made a mistake by filing the wrong form. She lodged an F2 unfair dismissal application and stated in that application that she had been unfairly dismissed. She was perfectly eligible to make such an application. MGS raised no objection to it. It was not the ‘wrong’ application to make. Later, having read MGS’s F3 reply, she decided to pursue a s 365 application instead. Evidently she considered a s 365 application would be a better claim. In short, Ms Holzer changed her mind about what application to make.

1. Secondly, I reject the suggestion that the Commission somehow contributed to the delay by not providing a substantive response to Ms Holzer’s inquiry about what claim to make. It is not the job of the Commission to provide advice to parties. Information about applications is available on the Commission’s website. Ms Holzer said that this information is not easy to understand. I reject this. It is difficult to imagine how the Commission could possibly do any more to make itself accessible and understandable to any person wanting to bring an employment-related claim against his or her employer.

1. Thirdly, I reject Ms Holzer’s submission that MGS contributed to the delay by lodging a late reply to the unfair dismissal claim. The reply was not late. It was filed within 7 days of service of the F2, in compliance with the Fair Work Commission Rules 2024.

1. Fourthly, I reject the submission that representative error was the cause of the delay. It has not been established that Ms Holzer was reliant upon her life partner in any relevant way. And he did not commit any error. Ms Holzer said that the F3 confirmed to her that she should have lodged a s 365 application. But that was a matter of opinion. The decisions to make and then cease the unfair dismissal claim, and later to lodge the s 365 application, were all forensic choices of the kind that applicants have to make every day. These were not exceptional circumstances. Of course, lodging a s 365 application would require an extension of time, a matter to which the form F8 directs attention. But this was part of the forensic choice.

1. Ms Holzer said that her s 365 application was ‘only’ 7 days late, that she acted reasonably by lodging her unfair dismissal application within 21 days of her dismissal, and by later lodging her s 365 application the day after deciding to do so. I find that none of these matters are exceptional or otherwise speak in favour of an extension. I am not persuaded that Ms Holzer had a good reason for her delay, or that the delay involved exceptional circumstances. The reasons for the delay weigh against an extension of time in this matter.

1. As to the other mandatory considerations, Ms Holzer took action to dispute the dismissal by lodging her unfair dismissal application (s 366(2)(b)). This weighs in favour of an extension. I do not consider there to be any significant prejudice to the employer (s 366(2)(c)). And I do not consider that there are any matters that are relevant to fairness between Ms Holzer and other persons in a like position (s 366(2)(e)). As to the merits (s 366(2)(d)), Ms Holzer stated that her dismissal was unlawful because she was dismissed for making a whistleblower complaint. MGS said that it dismissed Ms Holzer because she did not have the capacity to perform the inherent requirements of her role. The merits would depend on factual findings made at a final hearing. Based on the information before me, I consider that Ms Holzer has an arguable case to which MGS has a plausible defence.

1. The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking account of s 366(2), I am not satisfied that there are such circumstances in this case. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

R. Veith for Ms Holzer
S. Rose for Melbourne Grammar School

Hearing details:

2024
Melbourne (by telephone)
29 November

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