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

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).

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 Notwithstanding that the Respondent has withdrawn its jurisdictional objection, I must be satisfied that there are exceptional circumstances warranting the exercise of a discretion to extend time.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.

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]

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. I will now consider these matters.

Reasons for the delay

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…

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] FWC 2773
Decision Date: 17 SEPTEMBER 2025

CaseChat Overview and Summary

Kerrina Christiansen has lodged an application with the Fair Work Commission (Commission) seeking to pursue a general protections dispute against her former employer, Coffey Testing Pty Ltd. The Respondent raised a jurisdictional objection on the basis that the application was filed one day late, but subsequently withdrew this objection. The Deputy President was required to determine whether there were exceptional circumstances warranting an extension of time for the application to be lodged. The Deputy President found that the delay in filing the application was due to representative error and did not result from any conduct of the Applicant. The Deputy President concluded that there were exceptional circumstances and granted an extension of time for the application to be lodged.

The legal issue before the Deputy President was whether there were exceptional circumstances warranting an extension of time for the Applicant to lodge her application with the Commission. The Deputy President noted that the Fair Work Act 2009 requires that there be exceptional circumstances before time can be extended under section 366(2). The Deputy President considered the relevant matters under section 366(2) of the Act, including the reason for the delay, any action taken by the person to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between the person and other persons in a similar position. The Deputy President found that the reason for the delay was due to representative error, and that the Applicant had taken no steps to dispute the dismissal other than lodging the application with the Commission. The Deputy President also found that there was no significant prejudice to the employer, and that the merits of the application were arguable.

The Deputy President concluded that there were exceptional circumstances warranting an extension of time for the Applicant to lodge her application with the Commission. The Deputy President found that the circumstances of the case were 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 Deputy President noted that 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. The Deputy President found that this provided the Applicant with an acceptable reason for the delay, and that the remaining factors under section 366(2) were neutral or of little weight. The Deputy President concluded that it was 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.

The Deputy President extended the time for the Applicant to lodge her application to 15 July 2025 and issued an order to that effect. The Applicant is now able to pursue her general protections dispute against her former employer, Coffey Testing Pty Ltd.

Orders