Kerrina Christiansen v Coffey Testing Pty Ltd

[2025] FWC 2773

[2025] FWC 2773

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Kerrina Christiansen
v

Coffey Testing Pty Ltd

(C2025/6956)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 17 SEPTEMBER 2025

General protections application filed out of time – representative error – circumstances exceptional – extension of time granted.

Introduction

1. This decision concerns an application by Ms Kerrina Christiansen (Applicant) for the Fair Work Commission (Commission) to deal with a general protections dispute (Application) pursuant to s 365 of the Fair Work Act 2009 (Act) against her former employer, Coffey Testing Pty Ltd (Respondent).

1. The Respondent initially objected to the Application on the basis that it was filed one day late. Understandably, the Respondent withdrew this jurisdictional objection after it was served with the Applicant’s witness statements and submissions in support of her request for an extension of time. Notwithstanding that the Respondent has withdrawn its jurisdictional objection, I must be satisfied that there are exceptional circumstances warranting the exercise of a discretion to extend time. I am so satisfied, for the brief reasons set out below.

1. The Act allows the Commission to extend the period within which a general protections application 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.[1] 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.[2]

1. 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.

1. 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.

1. 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. I will now consider these matters.

Reasons for the delay

1. The delay required to be considered in s 366(2)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

1. The 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 the applicant’s favour, however all of the circumstances must be considered.[5]

1. I am satisfied, based on the material before the Commission, that the one day delay in filing the Application was caused by representative error and no part of the delay was occasioned by the conduct of the Applicant; I consider that she is blameless for the delay.

1. I am satisfied that the Applicant has an acceptable explanation for the one day delay in lodging her Application in the Commission. This weighs in favour of a conclusion that there are exceptional circumstances.

Action taken to dispute the dismissal

1. There is no suggestion in the material before the Commission that the Applicant took any step to dispute her dismissal other than filing her Application in the Commission. This is a neutral consideration.

Prejudice to the employer

1. I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

1. The claim made by the Applicant is arguable, as is the response filed by the Respondent. I consider the merits of the Application to be a neutral consideration.

Fairness as between the person and other persons in a similar position

1. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.

1. Neither party made any submissions in relation to this factor. In all the circumstances, I consider this factor to be a neutral consideration.

Conclusion

1. Taking into consideration the matters I am required to take into account under s 366(2) of the Act and all the matters raised by the parties, I am satisfied that there are exceptional circumstances in this case and it is appropriate to exercise my discretion to extend time for the Application to be lodged in the Commission. The circumstances of this case are out of the ordinary course, unusual, and special because an applicant can reasonably expect that if they engage a solicitor to act on their behalf shortly after their dismissal, their solicitor will be aware of, and comply with, the 21 day time period to lodge a general protections application in the Commission. The Applicant’s lawyers did not meet this standard and, as a result, did not lodge the Application in the Commission within 21 days of the dismissal. This provided the Applicant with an acceptable reason for the delay. The remaining factors under s 366(2) are neutral or of little weight. In my view, it is in the interests of justice that the Applicant, whose conduct did not contribute to the delay in lodging her Application, be permitted to pursue her general protections case.

For the reasons given, I will extend the time for the Applicant to lodge her Application to 15 July 2025. An order will be issued to that effect [PR791810].

DEPUTY PRESIDENT

[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

[2] Ibid.

[3] Long v Keolis Downer[2018] FWCFB 4109 at [40]

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

Printed by authority of the Commonwealth Government Printer

<PR791809>