Linda Gelvin v Mandurah Lotteries House Inc
[2025] FWC 3125
•17 OCTOBER 2025
| [2025] FWC 3125 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 394—Unfair dismissal
Linda Gelvin
v
Mandurah Lotteries House Inc.
(U2025/13545)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 17 OCTOBER 2025 |
First unfair dismissal application in WAIRC dismissed; unfair dismissal application filed late; extension of time
The issue and outcome
On 19 August 2025, Linda Gelvin (the Applicant) applied for an unfair dismissal remedy having been dismissed by Mandurah Lotteries house Inc (the Respondent) on 1 May 2025. The Respondent objected to the unfair dismissal application on the basis that it was made outside of the statutory time limit prescribed by s 394(2)(a) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with the out of time objection.
Section 396 of the Act provides that the Fair Work Commission (the Commission) must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect. The other three matters are not relevant for present purposes.
Whilst the Act requires the application to have been made within 21 days of the dismissal taking effect, s 394(2)(b) of the Act permits an application to be made within a further period. The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in s 394(3)(a)–(f) are taken into account.
The application was made 89 days outside of the statutory period. The Applicant contends that the circumstances are exceptional based on her age (71) and mental health during the relevant period. Both are said to have contributed to the Applicant having initially made an unfair dismissal application (WAIRC Application) in the Western Australian Industrial Relations Commission (WAIRC). The Applicant filed her unfair dismissal application in the WAIRC on 19 May 2025 within the 21-day period prescribed by the Act.
However, having had regard to the factors in s 394(3) of the Act, I do not consider the circumstances exceptional. It therefore proves unnecessary to consider whether it is fair and equitable that time should be extended. An extension of time for making the application is therefore declined and accordingly, the application is dismissed. An Order[1] to this effect will issue concurrently with this decision. My detailed reasons follow.
Extension of time – exceptional circumstances
There is discretion to extend the 21-day period set by the Act for making an application for an unfair dismissal remedy. That discretion can be exercised only in exceptional circumstances where the matters specified in s 394(3)(a)–(f) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[2]
In the decision of Nulty v Blue Star Group Pty Ltd (‘Nulty’), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains a discretion to grant or refuse an extension of time.[3] Whilst Nulty considered the general protections provisions of the Act, its reasoning is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[4] Exceptional circumstances can 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.[5]
In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the following observation remains relevant:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[6]
2.1 Reasons for the delay in filing the application
Consideration turns to whether the Applicant has provided a credible reason for the whole of the period that her application was delayed.[7] The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.[8] It does not include the period from the date of the dismissal to the end of the 21-day period. The circumstances from the time of the dismissal, however, are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.[9]
The Commission has previously expressed that there is nothing exceptional about lodging an unfair dismissal application in the WAIRC when the application should have been lodged in the Commission.[10] In Welthy v J Factor Holdings Pty Ltd, it was said that ‘[i]t is not unusual for employees in Western Australia to confuse the WAIRC and Fair Work Commission’.[11] However, these propositions should not be read as a carte blanche statement that all applications mistakenly lodged in the WAIRC are by their nature unexceptional or that the mistaken lodgement in an ‘equivalent’ state jurisdiction may not constitute a plausible reason for the delay or part thereof.
Several decisions of this Commission have considered circumstances where an applicant initially lodges an unfair dismissal application in the WAIRC. In Palmer v RCR Engineering Pty Ltd (‘Palmer’), the applicant requested an extension of time primarily on the ground that he had wrongly lodged an application in the WAIRC.[12] In arriving at his decision to allow an extension of time, Deputy President McCarthy considered that the applicant had taken action to contest his dismissal almost immediately but in the wrong jurisdiction and that was the primary reason for the delay[13]. Further, having lodged the application in the WAIRC, the respondent whilst compliant with the timeframes within that jurisdiction for lodging a response, took some 20 days to notify of its jurisdictional objection to the WAIRC dealing with the application.[14] The effect of this was that the respondent had lodged the jurisdictional objection in the WAIRC beyond the time allowed for the applicant to lodge an application in Fair Work Australia.[15] The Deputy President observed that on becoming aware of the jurisdictional objection, the applicant lodged his application in Fair Work Australia within three days.[16] Having considered the other factors, the Deputy President determined the circumstances to be exceptional.[17]
In Snyder v Helena College Council, Inc (‘Snyder’),[18] the applicant, Mr Snyder, had initially made an unfair dismissal application in the WAIRC. The Full Bench considered whether the Commissioner at first instance had fallen into error in the consideration of the delay period. The Full Bench outlined that the evidence indicated that Mr Snyder:
· was on notice regarding the Respondent’s jurisdictional objection from at least 12 March 2018;
· was then in immediate contact with his lawyers;
· received advice from his lawyers that the Educational Services (Teachers) Award 2010 was likely to apply to his employment, at 5.28pm on 13 March 2028;
· received a preliminary view from his lawyers that the [sic] neither the WA Agreement nor the WA State Award applied to his employment, at 5.43pm on 13 March 2018; and
· received advice from his lawyers on 14 March 2018 which variously stated:
o “…Your former employer is incorporated and provides education services for fees. This means the legal argument that it is within the federal industrial relations system, rather than within the Western Australian industrial relations system, is strong and persuasive.”
o “Based on your instructions to us about your employment law matter, we advise that there is a strong legal argument that the Former Employer (the Respondent) is a national system employer and you are a national system employee, which means the FWC, rather than the WAIRC may be the appropriate tribunal for your dismissal dispute.”
o “On the other hand, the Helena College (Inc) Collective Agreement is registered with the WAIRC, supporting the legal argument that your employment is within the Western Australian industrial relations system and the WAIRC should have jurisdiction and power to determine your employment disputes.”[19]
The Full Bench further articulated that it did not agree with Mr Snyder’s proposition that in spite of having received the Form 5 and legal advice from his lawyers, his explanation for the delay between 12 March and 22 March 2018 was acceptable on the basis of the Respondent’s previous misrepresentation as to the applicable industrial instrument.[20]
The Full Bench found that the Mr Snyder was on notice from 12 March 2018, that the Respondent had raised a jurisdictional objection to the WAIRC application and from 14 March 2018, he had received advice from his lawyers (as outlined above). As to the respondent’s agreement to proceed to the conciliation conference before the WAIRC on 22 March 2018, the Full Bench considered it was not a matter of great moment because ultimately the decision as to whether the Applicant either continued to pursue or withdraw the WAIRC application was a matter for him, not the Respondent.[21]
The Full Bench in Snyder concluded that the Commissioner reasonably concluded on the material before him that Mr Snyder was aware of the jurisdictional hurdle before him but chose to allow the WAIRC application to continue in the hope of reaching agreement with the respondent at the conciliation on 22 March 2018.[22] In these circumstances, the Full Bench was unpersuaded that the Commissioner erred in his conclusion that Mr Snyder had failed to provide an acceptable explanation for the delay from the time he received the Form F5 until 22 March 2018.[23]
In King v Gourmet Beef Pty Ltd (‘King’), the applicant’s employment ended on 8 December 2016 and on 9 December 2016, he filed an application in the WAIRC asserting that he was harshly, oppressively or unfairly dismissed by the respondent.[24] On 16 May 2017 that application was dismissed by the WAIRC for want of jurisdiction.[25] Regarding the reasons proffered for the delay, the applicant submitted he was unaware he was employed by a constitutional corporation and as a consequence filed an application for an unfair dismissal remedy in the wrong jurisdiction. Further, the applicant asserted that he was unaware that he could voluntarily withdraw his application from the WAIRC and maintained that he was of a strong understanding that his employer was an unincorporated entity.
In his consideration of the reason for the delay, Deputy President Gostencnik, as he was then, was prepared to accept that the erroneous lodgement of the application in the WAIRC was understandable given the applicant was unrepresented and unfamiliar with the niceties of the legal fiction that is a corporation and the quite complex divide between that which is covered by state industrial law in Western Australia and that which is covered by federal law.[26] The Deputy President observed that the Applicant had acted expeditiously in lodging the application after his resignation took effect and therefore, the Deputy President was prepared to accept that up until the respondent filed its response to the application in the WAIRC, there was nothing to alert the applicant to the fact he had filed the application in the incorrect jurisdiction.[27]
In respect to the response filed by the respondent, the Deputy President accepted that there was reasonable explanation for the delay notwithstanding that the response raised the jurisdictional objection to the application.[28] The Deputy President stated that the response (Notice of Answer) contained little more than an assertion and the applicant was not given any documents to support the respondent’s objection.[29] The Deputy President further stated that no document was produced to suggest that the company was the applicant’s employer or that it was a trading corporation, and the response was expressed in legalese and difficult for an unrepresented person to comprehend.[30]
The Deputy President similarly considered that there was a plausible reason for the delay until the time that final documents were filed with the WAIRC regarding the jurisdictional objection.[31] Prior to that date, the Respondent had filed in the WAIRC and served on the applicant its written submissions and supporting documents. A hearing had been held, but the WAIRC required further documentation to be filed after the hearing.[32] As noted, as of the date of the lodgement of final documents the Deputy President considered there was plausible reason for the delay to that point. However, after the lodgement of the final documents, the Deputy President considered that it should have been reasonably apparent to the applicant that there was a real risk that his application might have been lodged in the incorrect jurisdiction. The Deputy President expressed that at this stage, the applicant had possession of all necessary documents, which should have alerted the applicant to seek legal advice or other advice about whether his application had been lodged in the correct jurisdiction.[33] As the applicant did not take that step, it was not accepted that the applicant had provided an acceptable explanation for the period between the lodgement of final documents and the date on which the application was made.[34]
Turning to the Applicant’s reasons for delay, the Applicant stated that on 1 May 2025 she was dismissed in the foyer of the Respondent building in front of staff and clients. Leading up to her dismissal, the Applicant had been provided with a letter outlining of the Respondent’s concerns about the Applicant’s performance. The letter was dated 17 April 2025 but referred to a meeting that had taken place between the Respondent and the Applicant on 22 April 2025. The letter detailed, amongst other matters, issues with the Applicant’s performance and a direction that the Applicant respond to those issues by 24 April 2025.
The Applicant stated that prior to her dismissal, she had taken personal leave on 28 April and 30 April 2025 and that her daughter became very worried about her mental health. The Applicant notes that her daughter made an appointment for her to see a doctor. Included in the Applicant’s evidence was a medical certificate dated 30 April 2025, which noted that the Applicant was suffering from an acute stress reaction, and a mental health care treatment plan would be initiated in the coming week. At hearing, the Applicant’s daughter, Simone Talbot, confirmed the contents of her witness statement, and observations about the Applicant’s mental health.
In respect of the delay, the Applicant explained that because she was not thinking logically and not functioning properly after the traumatic event of her dismissal, she let other people guide her, and, unfortunately, they gave her the wrong advice hence her lodgement of the WAIRC Application, which she states she now knows was incorrect. At hearing, the Applicant gave evidence that she had completed the WAIRC Application herself and had ‘googled’ information about making an unfair dismissal application.
The Applicant gave further evidence that because of her mental state at the time, it took her two weeks to get everything together for her WAIRC Application. That WAIRC Application was filed within 21-days of the Applicant’s dismissal taking effect.
The Applicant noted that the Respondent did not lodge its response to her WAIRC Application until the 8June 2025, when it outlined its jurisdictional objection. The Applicant records in her written evidence that she was unaware that the WAIRC was not the correct jurisdiction. At hearing, the Applicant confirmed that as of 8 June 2025 she was notified of the Respondent’s jurisdictional objection that the Respondent was not a national system employer.
In respect of the Respondent’s response to the WAIRC Application, the Applicant pressed that it was because of the Respondent’s late response that the 21 days for lodgement of an unfair dismissal application with the Commission were well and truly over. The Applicant further pressed that because she had already lodged the WAIRC Application, she could not lodge another one. Expanding upon this point at hearing, the Applicant explained that she had contacted the Fair Work Commission (albeit a date was not provided) and that the Commission explained that the Applicant could not lodge an unfair dismissal application given the extant WAIRC Application. The Applicant provided no further evidence to support her contention that this had occurred. However, there was no indication that the Applicant was providing an account that was other than candid on this point.
According to the Applicant, a hearing was held at the WAIRC on 15 August 2025, and her application was dismissed because it was not within the jurisdiction of the WAIRC.
The Respondent submits that the Applicant was placed on notice on 9 June 2025, when the Respondent filed and served on the Applicant its response to the WAIRC Application, that the WAIRC did not have jurisdiction to hear her application. The Respondent further submits that it made it clear in its response that the Respondent’s position was that it was a ‘national system employer’ and the justification for that position.
The Respondent observes that there is no evidence that the Applicant sought advice or took any action after receiving the Respondent’s response to her WAIRC Application to check if she had made her application to the correct body, prior to the hearing on 15 August 2025 before the WAIRC.
The Respondent contends that not only was it open to the Applicant to obtain advice or conduct research into the question of jurisdiction, but it was also incumbent on her to do so in order to reduce the delay in her making the correct application.
It is uncontroversial that on 19 May 2025, the Applicant lodged the WAIRC Application.
On 8 June 2025, the Respondent filed its Employer Response to WAIRC Application in the WAIRC, the receipt of which was confirmed by the WAIRC on 9 June 2025. That Employer Response identified that the Respondent had raised a jurisdictional objection. The jurisdictional objection was set out in the following terms:
1. The Respondent objects to this application because it is a national system
employer.
2. S.14 of the Fair Work Act 2009 (“FW Act”) states that a national system employer
means, inter alia, a constitutional corporation to which section 51(xx) of the
Australian Constitution applies, which includes ‘foreign corporations and financial
or trading corporations formed within the limits of the Commonwealth’.
3. As an incorporated association the Respondent falls within the purview of the
Associations Incorporations Act 2015 (WA) (AI Act). Under s 4(a)(i) of the AI Act,
an association is eligible to be incorporated under the Act if it has a ‘charitable or
benevolent purpose’.
4. The Respondent is registered as a not-for profit charity by the Australian Charities
and Not-for Profits Commission (“ACNC”).
5. An understanding of the Respondent’s financial position can be garnered initially
by way of overview via the ACNC webpage and thereafter, the 2024 the
Respondent’s Annual Report.
6. According to the ACNC, 100% of the Respondent’s revenue is derived from goods
or services. The 2024 annual report shows that those goods and services are the
provision of office space in exchange for rent and the hire of rooms in the building.
7. These activities are trading activities in that the Respondent receives monies for
the provision of the rooms in the building and therefore, Respondent is a trading
corporation.
8. It then follows that Respondent meets the definition under s.14 of the FW Act and
so is a national system employer.
9. As a result, the WAIRC does not have jurisdiction to determine this application.
10. The Respondent wishes to have its jurisdictional objection heard and determined
prior to any conciliation of this application being conducted.
On 15 August 2025, the WAIRC Application proceeded to a hearing before Commissioner Walkington to address the Respondent’s jurisdictional objection. It is apparent that, during that hearing, the Applicant discontinued the WAIRC Application notwithstanding that the Applicant purports that it was dismissed. In that hearing, the Applicant accepted that the Respondent was trading and that it was incorporated.
It is trite to observe that much will turn on the facts of the matter. The facts before me differ to those presented in the decisions of Snyder, King, and Palmer.
First, the Applicant points to her age and her health as contributing to her having made the WAIRC Application and not her ignorance of the law.
Turning to the Applicant’s health, it is accepted that an applicant’s medical condition can be so significant that it affects the applicant’s mental capacity to prepare and file an application with the Commission. However, much may turn on the evidence adduced to support such a proposition. In Underwood v Terra Firma Pty Ltd, the Full Bench accepted the finding made at first instance that the applicant had failed to positively demonstrate that his depressive illness had impacted his mental capacity so as to prevent him from making the application within 21 days.[35] The Full Bench affirmed the findings that the medical evidence relied upon ‘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 that no exceptional circumstances were established.[36]
In Merhi v Commonwealth,[37] 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’.
The evidence before the Commission demonstrates that as of 30 April 2025, the Applicant was certified as suffering from an acute stress reaction necessitating the establishment of a mental health care treatment plan ‘in the coming week’. There was no documentary evidence of that treatment plan, and no further documentary evidence to suggest the period of the acute stress reaction.
Although the Applicant was suffering an acute stress reaction, it is not apparent that this impaired her ability to make an application for an unfair dismissal remedy albeit the application appears to have been made in the ‘incorrect’ jurisdiction. The Applicant explained that she completed the WAIRC Application herself and that she had utilised ‘google’ to assist her in the process. It therefore cannot be said that the Applicant was rendered so incapacitated that she was incapable of making an unfair dismissal application. In the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish they were prevented from lodging an application due to a medical condition where the employee demonstrates capacity to act by performing other tasks following the dismissal.[38] In this case, there is no probative medical evidence showing incapacity at a particular time or times in the delay period from 22 May 2025.
However, as was the case in King, I am prepared to accept that the erroneous lodgement of the application in the WAIRC was understandable given the Applicant was unrepresented and unfamiliar with the niceties of the legal fiction that is a corporation and the quite complex divide between that which is covered by state industrial law in Western Australia and that which is covered by federal law.[39] Whilst the Applicant did not purport to rely upon ignorance of the law, it is apparent from the materials filed and the Applicant’s reference to the Respondent as a ‘National Service Provider’ that she was unaware at the time of lodging the WAIRC Application that the WAIRC was not the correct jurisdiction. It follows that in the period of 22 May 2025 to 9 June 2025 there is a plausible reason for the delay in making the unfair dismissal application.
At hearing, the Applicant conceded that she was notified of the Respondent’s jurisdictional objection as of 8 June 2025. However, I am appreciative that the Respondent’s response to the WAIRC Application was stamped with the dates of 8 June 2025 and 9 June 2025. Therefore, I am content to rely on the latter date of 9 June 2025, as the date that the Applicant was placed on notice that the Respondent considered it was a national system employer, citing reasons in its WAIRC response for having reached that position.
Evidently, the Applicant was aware of the jurisdictional objection to the WAIRC Application and the implication of the same. So much was evinced in the Applicant’s account, which I accept, that she contacted the Commission regarding the lodgement of an unfair dismissal application in the Commission. If the Applicant is to be believed, clearly, this was at a time when the WAIRC Application remained on foot, as according to the Applicant, having contacted the Fair Work Commission in respect to making an unfair dismissal application, she was informed that she could not have two unfair dismissal applications in place simultaneously
In my view, the Applicant had sufficient capacity and the necessary document for her to have taken further steps to enquire about whether she could discontinue her WAIRC Application and file an unfair dismissal application in the Commission from 9 June 2025 up until the date of lodgement. Nevertheless, the Applicant proceeded on the basis that she had selected the correct jurisdiction in which to make her application and waited for the WAIRC to hear the jurisdictional objection. That is a choice that the Applicant made.
Whilst the Applicant referred to her mental health and her age impacting her ability to think clearly, the Applicant possessed sufficient competence to conduct google research, to lodge the WAIRC Application, and in response to the Respondent’s response to the WAIRC Application, contact the Fair Work Commission to ask about the lodgement of simultaneous unfair dismissal applications. The evidence does not positively demonstrate that the Applicant’s mental health or age impacted her capacity so as to preclude the lodgement of an unfair dismissal application at an earlier stage in the delay period.
Whilst appreciative that the Applicant has experienced a most challenging period, the Applicant’s self-assessment of her alleged psychological incapacity and her daughter’s evaluation of the same, is an inadequate basis for arriving at conclusion that the Applicant’s mental health was a plausible reason for the delay period. As noted, the evidence provided by the Applicant did not address whether a treatment plan was established and the period of the acute stress reaction. As observed, the Applicant had competence within the delay period to make enquiries in respect of the Respondent’s jurisdictional objection within the WAIRC.
The Applicant has provided an acceptable reason for part of the delay period up to 9 June 2025. However, beyond that period, I am not satisfied that the Applicant’s reason for the delay in making the application was reasonable.
I further observe that as from 15 August 2025, the Applicant was aware that her WAIRC Application had come to an end. The Applicant then waited until 19 August 2025 to lodge her unfair dismissal application with the Commission. It was not the case that the Applicant addressed her lodgement of her unfair dismissal application in the Commission with any sense of urgency. Arguably, it was open to the Applicant to have lodged the Form F2 in the Commission on the day her WAIRC Application ended.
Whilst the Applicant has provided a credible explanation for part of the delay, I am not satisfied that the Applicant had a reasonable explanation for the whole period of the delay. In this particular case, this factor therefore weighs against a finding that there are exceptional circumstances. In arriving at this conclusion, I have considered the delay as the period beyond the 21-day period. However, regard has been had to the circumstances from the date the dismissal took effect.
2.2 Whether the Applicant became aware of the dismissal after it took effect
At all material times from the time the Applicant was dismissed until the date the unfair dismissal application was made, the Applicant knew she had been dismissed as of 1 May 2025. The Applicant therefore had 21 days in which to lodge her application. This factor therefore weighs against a finding of exceptional circumstances.
2.3 Action taken to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[40] This consideration enquires as to whether the respondent was somehow forewarned of the application in the period between dismissal and the application. That is, if an applicant disputes a dismissal with her or his employer before lodging the application in the Commission and after the dismissal takes effect, the effect of that dispute is to at least put the employer on notice that there is a controversy about the dismissal.[41] It has been said before, that if such circumstances arise, the fact that there was notice of a dispute about the dismissal prior to the making of the unfair dismissal application, may weigh in an applicant’s favour, even though the application was lodged out of time.[42]
I have considered all the evidence in this respect, including the lodgement of WAIRC Application, and consider that the Respondent was forewarned of the unfair dismissal application, given the lodgement of the WAIRC Application within the statutory period of 21-days. I therefore consider that this factor weighs toward a finding of exceptional circumstances.
2.4 Prejudice to the employer
The Respondent concedes that there is no particular prejudice it would accrue if an extension of time were granted.
Arguably, the Respondent would not be in the position it is today, of having dealt with an unfair dismissal application in the wrong jurisdiction to the point of attending proceedings before the Commissioner, had the Applicant, instead of persisting with that WAIRC Application after being put on notice of the objection, undertook further research or sought further guidance or advice on the discontinuance of the WAIRC Application at an earlier stage.
However, given the Respondent’s concession, I accept that this is a neutral factor in the present case, noting that the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.[43]
2.5 Merits of the application
The nature of the matter is such that consideration must be given to whether the application was made within the period required in s 394(2)(a) of the Act and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.
In Telstra-Network Technology Group v Kornicki,[44] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said in respect to ‘merit’:
If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[45]
In respect of the application, there are several contentious issues that would require attention should an extension of time be granted. Part of that factual matrix concerns circumstances where the Applicant received a letter (dated 17 April 2025) from the Respondent in the latter part of April 2025, which outlined that her relationship with the Respondent as a contractor was not a correct characterisation and that due to the changes in the Act, the Applicant was in fact an employee and would be back paid as such from 26 August 2024. Having been dismissed on 1 May 2025, and in circumstances where the Respondent asserts it was a small business employer, the Respondent submits that the Applicant has therefore not met the minimum employment period. The Applicant rejects the Respondent’s contention.
Concerning the merits of the application, it is evident that there are disputed facts. The letter provided to the Applicant in the latter part of April 2025, outlined that due to the Applicant now becoming an employee, a new employment contract would be required and as such the Applicant was advised that the role of building manager required her to undertake 17 duties. In addition, it outlined multiple issues with the Applicant’s performance, which required a response by 24 April 2025. It would fair to say that the performance issues identified were significant. The Applicant responded in writing by letter of 23 April 2025.
Included in the evidence was a letter of 30 April 2025 from the Respondent to the Applicant. That letter recorded that on 24 April 2025 the Applicant was instructed to meet with the Acting Chair of the Respondent and a Vicki Pollard. It is further recorded that the Applicant refused to do so and, in addition, shouted at Vicki Pollard aggressively and inappropriately. The letter sets out that the Respondent did not accept the Applicant’s responsive explanations for each issue raised and that the Respondent remained dissatisfied with the Applicant’s performance. The letter of 30 April 2025 thereafter notifies the Applicant of her dismissal with payment in lieu of notice.
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to the applicant to lodge her application.[46] The factual contentions and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time were granted and the matter proceeded.
It is apparent from the evidence and submissions that there are factual disputes as to the minimum employment period and as to whether the Applicant was underperforming and the management of the same, in addition to the Applicant’s purported conduct at any meeting. These factual disputes would warrant further exploration at a hearing and the making of findings. It follows that whilst it cannot be said the unfair dismissal application is ‘without merit’, it is the case that this factor is neutral in all the circumstances.
2.6 Fairness between the person and other persons in a similar position
In Morphett v Pearcedale Egg Farm, Deputy President Gostencnik, as he then was, considered this criterion and said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[47]
I am satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration. In King, the Deputy President considered those cases (one of which is referred to in this decision) where an extension of time was sought after having lodged an unfair dismissal application in the WAIRC. At paragraph [62] of King, the Deputy President referred to the decisions of Matthiessen v Pilbara Ports Authority[48] and Palmer. He concluded that a significant factor in cases of this kind is the steps that an applicant took to seek advice after becoming aware that there was a jurisdictional problem with her or his state industrial law application. The Deputy President observed that the applicant in King took no such step to seek advice to ensure that he was pursuing the claim in the correct jurisdiction.
In the present case, the Applicant expressed that she enquired with the Commission about making an unfair dismissal application and says she was advised that she could not have two applications on foot – one in the WAIRC and one in the Commission. However, there is little to no evidence to support a finding that the Applicant took steps after 9 June 2025 to seek advice or research further to ensure that she was pursuing her application in the correct jurisdiction or to ascertain whether the WAIRC Application could be discontinued prior to 15 August 2025.
To the extent that I have addressed similar cases where an unfair dismissal application has been made in the WAIRC, and noting the above, I am persuaded that this factor weighs against a finding of exceptional circumstances.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one.
Based on the evidence before me, the Applicant has provided a satisfactory explanation for part of the period of the delay in making her application and, for the other part of the delay period, she has not. I have ultimately found that this factor weighs against a finding of exceptional circumstances having considered all the evidence. Regarding the remaining factors I am required to take into account, s 394(c) of the Act weighs toward a finding of exceptional circumstances, whilst s 394(3)(b) and (f) weigh against such a finding. I am satisfied that s 394(d) and (e) are neutral considerations. On balance, and having considered all the evidence, I am unpersuaded there are exceptional circumstances and that an extension of time should be granted.
An extension of time for making the application is therefore declined and accordingly, the application is dismissed.
DEPUTY PRESIDENT
Appearances:
L Gelvin, the Applicant
S Farrell for the Respondent
Hearing details:
2025.
Perth (by telephone):
8 October.
[1] PR792772.
[2] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [21].
[3] [2011] FWAFB 975, [15].
[4] Ibid [13].
[5] Ibid.
[6] [2018] FWCFB 901, [38] (emphasis in original).
[7] Cheval Properties Pty Ltd v Smithers[2010] FWAFB 7251, [17]–[18].
[8] Henderson v Hoban Recruitment Pty Ltd [2016] FWC 5041, [10].
[9] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31]; Diotti v Lenswood Cold Stores Co-op Society[2016] FWCFB 349, [29]–[31].
[10] Robertson v Zeugma Electrical & Communication Services Pty Ltd[2010] FWA 4525, [12].
[11] [2016] FWC 1978, [15] (emphasis added).
[12] Palmer v RCR Engineering Pty Ltd[2009] FWA 1431, [2].
[13] Ibid [8].
[14] Ibid [9].
[15] Ibid.
[16] Ibid.
[17] Ibid [10]–[12].
[18] [2018] FWCFB 4734.
[19] Ibid [56].
[20] Ibid [57].
[21] Ibid [60].
[22] Ibid [63].
[23] Ibid.
[24] [2017] FWC 3866, [2] (‘King’).
[25] Ibid, citing 2017 WAIRC 00272.
[26] King (n 24) [37].
[27] Ibid.
[28] Ibid [38].
[29] Ibid.
[30] Ibid.
[31] Ibid [39].
[32] Ibid.
[33] Ibid [40]
[34] Ibid.
[35] [2015] FWCFB 3435.
[36] Ibid [16].
[37] [2020] FWCFB 3523, [8], [37]–[39]
[38] See Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645, [15].
[39] King (n 24) [37].
[40] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299–300 (‘Brodie-Hanns’).
[41] Chumber v Laverton Cold Storage[2024] FWC 238, [20].
[42] Ibid.
[43] Brodie-Hanns (n 40) 299–300
[44] (1997) 140 IR 1.
[45] Ibid 11.
[46] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
[47] [2015] FWC 8885, [29].
[48] [2016] FWC 1532.
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