[2021] FWC 1284

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Kerri Kendal
v
Greatful Pty Ltd T/A Northern Beaches Dental Care
(U2020/16058)

DEPUTY PRESIDENT ASBURY

BRISBANE, 7 APRIL 2021

Application for an unfair dismissal remedy – jurisdictional objection – application filed outside time required in s. 394(2) – Representative error – Exceptional circumstances established – Further period granted.

Introduction

[1] This Decision concerns an application by Ms Kerri Kendal (the Applicant) under s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in respect of her dismissal by Greatful Pty Ltd T/A Northern Beaches Dental Care (the Respondent). In her Form F2 Application for an unfair dismissal remedy, the Applicant states that she was advised of her dismissal on 10 September 2020 and the dismissal took effect on 9 October 2020. There is no dispute from the Respondent as to the date of termination and its effect.

[2] This is the second unfair dismissal application that the Applicant has made under s. 394 of the FW Act in respect of her dismissal from the Respondent’s employment. The second application was filed by the Applicant in the Commission on 19 December 2020. By virtue of s.394(2) of the Act, an application under s.394 of the FW Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). On the basis that the employment relationship was terminated on 9 October 2020, the application was required to be made by midnight on 30 October 2020. The application was made 47 days outside the time required in s.394(2) of the FW Act and it is therefore necessary to determine whether a further period should be allowed under s. 394(3) for the application to be made.

[3] In the Form F2 Unfair dismissal application filed by the Applicant she asserts that the reason for the delay in making the second application is that she made an earlier application within time (the first application) and it was withdrawn by her previous legal representative in circumstances where the Applicant did not authorise the withdrawal and was still considering her options to proceed with the first application.

[4] The Respondent filed its Form F3 – Employer Response on 7 January 2021, raising jurisdictional objections, including that the application was filed out of time and that the Applicant had made multiple applications in respect of the same facts and dismissal. It was also asserted that the Applicant’s dismissal was a case of genuine redundancy.

[5] On 20 January 2021, the Associate to Vice President Catanzariti corresponded with the Applicant requesting that she provide reasons as to why an extension should be granted having regard to the matters in s.394(2) of the FW Act. The matter was subsequently allocated to me for determination and I issued Directions requiring the parties to file any additional material they sought to rely on in relation to whether a further period should be granted.

[6] The matter was listed for Jurisdictional Hearing on 15 February 2021. At that hearing I granted the Applicant a further period in which to file further material in relation to email correspondence from her former legal representative and in relation to assertions she made about the impact of her interactions with the Commission on the delay in filing her application. The matter was listed for further Jurisdictional Hearing on 25 February 2021.

[7] The Applicant appeared on her own behalf at the telephone hearings. The Respondent was represented by Ms Sarah Christie of Employsure Law. The Respondent was granted permission to be legally represented pursuant to s. 596 of the FW Act on the basis that I was satisfied that some complexity was involved and it would enable the matter to be dealt with more efficiently.

Approach to deciding whether to grant further period

[8] The FW Act allows the Commission to grant a further period for a person to make an unfair dismissal application, 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 factor, 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

[9] The requirement that there be exceptional circumstances before time can be extended under s 394(3) 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.

[10] Section 394(3) requires that, in considering whether to grant a further period to make an unfair dismissal application, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[11] 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 now consider these matters in the context of the Application.

Procedural history

[12] It is necessary to set out the procedural history of the Applicant’s dealings with the Commission as found on the Commission’s case management system. The Applicant states in both the first and the second applications (and it is not disputed) that she was notified of her dismissal on 10 September 2020, and that it took effect on 9 October 2020. The Commission’s records indicate that the Applicant filed the first application for an unfair dismissal remedy on 29 October 2020 3 within the time required in s. 394(2) of the FW Act. The Form F2 filed in relation to the first application was filed on behalf of the Applicant by her then legal representative. On 4 November 2020, the legal representative also filed a Form F53 – Notice that lawyer or paid agent acts for a person. The Respondent’s representative filed a Form F3 Response to the application on 10 November 2020.

[13] A conciliation conference was conducted by a Staff Conciliator on 17 November 2020. The Staff Conciliator sent a follow up email to the parties on 24 November 2020, and the Applicant’s representative replied on the same day stating that the matter was subject to “ongoing settlement negotiations” and requesting a further 24 hour period to enable instructions to be sought from the Applicant with respect to a settlement offer.

[14] On 27 November 2020, the Conciliator sent a further email requesting a progress report from the parties. The Applicant’s then legal representative responded on 2 December 2020, stating that:

“We confirm that we have been instructed to not move forward with the above application. We will arrange for the notice of discontinuance to be filed shortly.”

[15] There is nothing on the Commission’s case management system to indicate that the Notice of discontinuance was filed. There is also nothing to indicate that the Applicant’s legal representative filed a Notice advising that the legal representative ceased to act for the Applicant. The staff Conciliator entered a result into the system on 2 December 2020 indicating that the matter had been settled and that the settlement did not include the payment of a monetary amount. The file was closed on that date. The effect is that the Applicant was taken to have withdrawn the application. On 10 December 2020 at 1.29 pm, the Applicant emailed the Conciliator stating:

“…I wanted to inform you that I’ve spoken with Fair Work Ombudsman and they have advised me not to file the discontinuance regarding the unfair dismissal. As you know [representative], will no longer be representing me as I cannot proceed forward with her financially. Instead I have made an appointment with legal aid to move forward with the unfair dismissal. I’m awaiting my appointment date to be advised as to the next step forward. If you have any further questions regarding this matter you may contact me directly.”

[16] The Conciliator sent an email in response stating that the role of the Conciliator had ceased and that the Applicant’s representative had informed the Commission in writing that the application was withdrawn. The Conciliator also informed the Applicant that she may wish to seek legal advice in relation to the matter.

[17] Also on 10 December, a Fair Work Commission case manager had a telephone conversation with the Applicant and a file note was made to the following effect:

A: T/C with Kerri Kendal stating that she spoke to the FWO who apparently advised her that she should not discontinue her matter and complained that her solicitor did not give her appropriate advice. Furthermore she complained about the legal costs and I referred her to the QLD Law Society. She advised she wanted to pursue her matter to arbitration, I advised if a NOD [notice of discontinuance] had been signed it would be difficult to bring the matter back on with the commission. She advised she has not signed a NOD or any TOS [terms of settlement]. She asked how she can have the matter referred to arbitration, I asked her to put something in writing. (RO 10/12)

[18] The matter was then allocated to Commissioner Bissett, the National Practice Leader for unfair dismissals, to deal with a request by the Applicant that the matter proceed to hearing. Commissioner Bissett’s Chambers sent correspondence to the Applicant, copied to the Respondent, on 14 December 2020 stating:

“Dear Ms Kendal,

I refer to your correspondence with the Commission in which you say you wish to have your unfair dismissal application “move forward to arbitration” and advise that your previous representative is no longer acting for you.

Your request has been forwarded to Commissioner Bissett, National Practice Leader for unfair dismissals.

As the Commissioner understands has been explained to you, the Commission records indicate that your representative advised on 2 December 2020:

“We confirm that we have been instructed to not move forward with the above application”.

On this basis the Commission closed the file on the grounds that the application had been discontinued/withdrawn.

The Commissioner has asked that I advise you of the following procedural matters:

1. The Commission does not have the power to set aside a withdrawal or notice of discontinuance of an application (see AB V Tabcorp Holdings Limited [2015] FWCFB 523).

2. If you withdrew your application not as part of a settlement, you can make a fresh application. You will have to seek an extension of time as part of that application and will have to explain the circumstances surrounding the first application, why it was withdrawn etc. There is a question about this on the application form. Your extension of time request will then be considered by a Member and, if granted, your application considered.

If you intend to make a fresh application a quick note confirming this would be of assistance.

3. If you withdrew your application as part of a binding agreement between you and the Respondent it is unlikely your application could proceed because that binding agreement settled your application. If this is the case your advice of this would be appreciated and your advice as to whether you wish to continue with your application.

If there is some other basis for the withdrawal of your application your advice of this would be appreciated so that it may be considered by the Commissioner.

Your reply to this email will assist the Commissioner in the further consideration of this matter.

Your response by 4.00pm Friday 18 December 2020 would be appreciated. Should you wish to discuss this please contact the chambers of Commissioner Bissett on the number below.”

[19] The Applicant provided a response on 14 December 2020 stating:

Chambers-Bissett - I would like to make a fresh new application on my unfair dismissal. It has been unfortunate to discover that my solicitor [name deleted] did not provide me with all my options when representing me. It wasn’t until dealing with [name deleted], from Fair Work Ombudsman, that it was pointed out to me that my solicitor should have never advised me to file an investigation with Ombudsman, and I should have never discontinued my unfair dismissal. Originally my Solicitor was going for the maximum of 42 weeks paid wages for the unfair dismissal which for me is 26,000. My Employer did not agree to this during the conciliation process; at which time being unemployed I also ran out of money to continue this matter proceeding to arbitration and having [name deleted] represent me. I was advised by Fair Work Ombudsman that my solicitor should have discussed lowering the amount we were going for to 20,000 then taking her to a small claims court for this amount. My solicitor never provided me with this option; I wasn’t aware of this until speaking with Ombudsman. Also I would like to point out that [name deleted], was only meant to tell [conciliator] verbally that we were going to discontinue the unfair dismissal; it was up to me to file the actual paperwork for the discontinuance. I never signed any paperwork agreeing to discontinue my unfair dismissal. I also never gave [name deleted], permission to put anything in writing. It was to my knowledge and understanding that I would be filling out that paperwork. The bottom line is I’m not happy with the representation that I received and was misguided. I would like to pursue this matter in small claims court, and I would like the help of Legal Aid in assisting me in the matter. I have an appointment with them on January 4, 2021. This is the earliest appointment. I hope you kindly acknowledge my circumstances, and lack of knowledge when navigating the Australian work place laws. As I’m A former United States Citizen. This has been a learning curve for me, and I hope to have your support so that I may have the Opportunity for Victory.”

[20] Commissioner Bissett’s Chambers corresponded with the Applicant on 15 December 2020 regarding filing a new application. That correspondence was in the following terms:

“If you wish to make a further application for unfair dismissal you should do this as soon as possible and not wait until January. You can do this without legal representation. The appropriate form to complete is a Form F2 which can be found on the Commission’s website at

You have previously made an application and you may be able to use that same information on this application. It is not advised that you wait until you have an appointment with Legal Aid although you might mention in your application that you have an appointment with them on 4 Jan 2021.

You should note that the Commission is not a “small claims tribunal” and will not determine an amount of money owed to you. The application you indicate you wish to make is that you were unfairly dismissed. As indicated in the earlier email from Chambers you will first have to be granted an extension of time. If that is granted the Commission will then determine if you were unfairly dismissed and, if so, what remedy/compensation you should receive.

There is more information on unfair dismissals on the Commission’s website at

[21] The Applicant’s second application was filed on 16 December 2020, 68 days after the dismissal took effect and 47 days outside the statutory timeframe. In the second application the Applicant confirmed that it was filed outside the required time, and that her reason for the late filing was that she had not been properly advised of her options by her previous representative. The Applicant also stated in the second application that she did not complete the Notice of discontinuance regarding her original unfair dismissal application, and that she did not realise her representative had formally put anything in writing to the Conciliator about discontinuing the application.

[22] On 7 January 2021 the Respondent filed a Form F3 Response to the application raising jurisdictional objections on the grounds that: the application was filed out of time; the dismissal was a case of genuine redundancy; the small business fair dismissal code applies and was complied with; and the Applicant had filed multiple applications.

[23] On 20 January 2021, Vice President Catanzariti’s Chambers wrote to the Applicant seeking information as to whether the Applicant sought a further period in which to make the application and if so, the basis upon which such period was sought having regard to the matters in s. 394(3) of the FW Act. The Applicant provided a response on 20 January 2021 stating that she relied on the information set out in the Form F2 application. The matter was then allocated to me to determine whether a further period should be granted. Directions were issued for filing of any further materials for consideration of whether a further period should be granted.

[24] The matter was listed for hearing on 15 February 2021. At the hearing it became apparent that there was evidence, including a number of times of correspondence that the Applicant wished to rely on but had not been filed. I adjourned the hearing to allow the Applicant an opportunity to put further evidence before me. The Applicant filed an additional witness statement and the hearing was resumed on 25 February 2021.

Evidence and submissions

[25] In her second Form F2 – Application for unfair dismissal remedy, the Applicant stated in response to a question as to whether her application had been made within 21 calendar days of her dismissal taking effect:

“I need an extension; as the (sic) I did lodge the first application inside of the 21 days; however I wasn’t properly informed of all my options by my previous representative [name deleted]. After being better informed by the Fair Work Ombudsman I would like to move forward to Arbitration without [representative] and continue forward. I never wanted to withdrawl (sic) my unfair dismissal, but thought I had no other options. This was part of the reason why I never formally filled out the discontinuance paper work. I was awaiting a response from the Fair Work Ombudsman to provide me with further information so I could make a more informed decision. I only thought [representative] was verbalising with [Conciliator] did not realize she had formally placed things in writing. I did not ask [representative] to do this and it was to my knowledge that I would be filling out the discontinuance paper work. I have never signed anything stating that I wish to discontinue my unfair dismissal. Instead I would like to move forward with this matter as originally planned without the help of [representative]. I am seeking further legal Aid to help me in this matter as Ive (sic) run out of financial means to pay for a solicitor. I have an appointment with Legal Aid on 4 of January 2021. I hope you will consider this extention (sic), and grant me a way forward”.

[26] In response to the Directions, the Applicant filed two witness statements which she sought to rely on. In her first statement filed on 5 January 2021, the Applicant stated that she was informed of the proposed redundancy of her role, to take effect on 9 October 2020, and immediately took action against the Respondent with the assistance of a legal representative. In this regard I note that the Applicant’s former legal representative corresponded with the Respondent on 7 October 2020 prior to the Applicant’s dismissal. That correspondence is appended to the Applicant’s first unfair dismissal application. The Applicant stated that she signed an agreement with a law firm on 12 October 2020, to dispute her dismissal and stated that she has not stopped pursuing an outcome in this matter since 9 October 2020.

[27] The Applicant was legally represented at the conciliation of the first unfair dismissal application, where she was hopeful that the Respondent would accept an offer of settlement for what the Applicant views as an unreasonable and unjust dismissal. The offer of compensation was rejected by the Respondent and the Applicant contends that at that time, her legal representative did not advise her of all her legal options and instead advised that she should discontinue her first unfair dismissal application as the Applicant could not afford to pay another $10,000 to $15,000 to pursue litigation and arbitration in a higher court.

[28] The Applicant stated that at this point she had spent $12,000 to proceed to the conciliation stage of her first application and did not want to “call it quits”. The Applicant believes that her legal representative “steered her away” from achieving a result and then advised her to forget about her employment and just focus on a claim for unpaid wages through the Office of the Fair Work Ombudsman. The Applicant lodged a complaint with the Fair Work Ombudsman in relation to unpaid wages on 1 December 2020. The Applicant stated that the representative she spoke to was “dumbfounded” when informed that the Applicant had spent $12,000 on legal fees with no result. The Applicant said that she was also advised that her legal representative should have made a counteroffer and then taken the matter to the Magistrates Court as a small claim. It is the Applicant’s view – based on what she asserts that she was told by the staff member from the Office of the Fair Work Ombudsman – that if this action had been taken, she may have had a satisfactory result for what in her view was an unfair and harsh dismissal.

[29] The Applicant also said that her legal representative advised her to withdraw her first unfair dismissal application and sent her an email stating that she needed to fill out the “discontinuance paperwork” in relation to the first unfair dismissal application. The Applicant said that she withheld from signing a notice of discontinuance, pending a response from the Fair Work Ombudsman, regarding the complaint she had lodged with that organisation. The Applicant said that she understood that her former legal representative was going to verbally advise the Commission what was taking place without finalising the discontinuance. The Applicant also stated that for her application to be discontinued she had to sign the discontinuance form in accordance with the request made by her legal representative. The Applicant did not sign that form and later found that her legal representative had notified the Commission by email of the discontinuance of the first application without the Applicant signing the notice of discontinuance.

[30] In response to the further directions in this matter, the Applicant filed a second witness statement in which she contended that she terminated her relationship with her legal representative “after the conciliation conference on 30 November 2021”. The Applicant stated that on 1 December 2020, her legal representative sent her an email with a link to the notice of discontinuance form on the Commission’s web site. The email tendered by the Applicant in support of this contention is dated 30 November 2020, and was sent by her former representative. The body of the email contains a link to the Fair Work Ombudsmen’s website, and leads to a webpage of information about resolving workplace issues. The email does not contain any information about a notice of discontinuance.

[31] The Applicant also said that on the same date, her legal representative spoke to her by telephone and said: “Could you fill out the discontinuance application and email me a copy when you are finished, I have provided you a link to the Fair Work Commission website via email.” The Applicant confirmed that she did not fill out or file the notice of discontinuance with the Commission and her legal representative did not follow up with her to see if this had occurred. The Applicant also said that on 1 December 2020 she lodged a claim with the Fair Work Ombudsman regarding alleged unpaid wages and failure to provide payslips and on 1 December 2020 was advised by a person from the Fair Work Ombudsmen’s investigations unit that she should not file the discontinuance. The Applicant said that she immediately contacted the Fair Work Commission Conciliator on 10 December advising that she would not be filing notice of discontinuance on the advice of the Fair Work Ombudsman’s Office. The Applicant also said that she transcribed that phone call into an email to the staff Conciliator which was annexed to her further statement. The email appended to the Applicant’s second statement is the email sent to the Conciliator at 1.29 pm on 10 October 2020.

[32] The Applicant maintained that it was at the point she was informed that her legal representative had sent an email to the staff Conciliator withdrawing her unfair dismissal application. This upset the Applicant as it was her understanding that nothing was “set in stone” until she filed the notice of discontinuance, which she had not done. Upon being informed by the Commission that she could file a further unfair dismissal application the Applicant immediately did so. The Applicant also tendered the email sent to her from the Chambers of Commissioner Bissett on 14 December 2020 and her reply on the same date (set out above). The Applicant stated that upon receipt of this correspondence she filed her second application on 15 December 2020. As previously noted the second application was lodged on 16 December 2020.

[33] The Respondent confirmed that on 17 November 2020, the parties attended a conciliation conference and that the matter was not resolved. According to the Respondent, the matter was left open for one week for the parties to consider their positions, and during this time various offers to resolve the dispute were made but no agreement was reached between the parties.

[34] On 2 December 2020 the Respondent received email communication from the Commission in the following terms:

“Thank you for your participation in the conciliation of the above matter. As a result of the conciliation of the matter, the Applicant has advised that they wish to discontinue their application. The matter is now taken to have been discontinued in accordance with Rule 10 of the Fair Work Commission Rules 2013. The matter is now closed.”

[35] The Respondent considered the first application was discontinued and the matter closed. As to the Second Application, the Respondent submitted that it was filed in the Commission on 16 December 2020, being 47 days out of time and that there are no exceptional circumstances justifying a further period in which to make the application being granted.

[36] The Respondent submitted that while the Commission has previously accepted representative error as an exceptional circumstance, this is not to be applied broadly and should not be applied in this case. The Respondent submitted that the Applicant had legal representation and consulted with her representative throughout the conciliation and in the days that followed. The Respondent submits that the Applicant therefore understood the process and chose to discontinue the First Application. The Respondent submitted that the onus of proof lies with the Applicant to establish that her representative acted against her wishes.

[37] According to the Respondent the Applicant admitted that she was advised by her representative to discontinue the first application and it was valid for the Applicant’s representative to file the Form F50 Notice of Discontinuance on the Applicant’s behalf, provided the representative had instructions to do so. The Respondent submitted that the Applicant has not provided evidence in support of her assertion that she did not instruct her representative to discontinue the first application or that it was discontinued against her wishes, 4 or by mistake or under duress.5

[38] The Respondent submitted that the Applicant has asserted that her “indecision” regarding filing the F50 Notice of Discontinuance related to her discussions with the Fair Work Ombudsman. The Respondent submitted that complaints relating to underpayment of wages or entitlements are immaterial to the Commission’s unfair dismissal jurisdiction, and therefore such assertions are not a valid reason for delay nor do they demonstrate representative error. The Respondent submitted that a claim for Unfair Dismissal and issues pertaining to the Fair Work Ombudsman are distinct and separate legal claims.

[39] The Respondent also referred to the Applicant’s submission that the Ombudsman was “dumbfounded” that she had spent $12,000 to engage a legal representative in the matter without achieving a result and submitted that it is irrelevant to the Applicant’s claim of representative error that the Ombudsman thought the Applicant had paid an excessive amount in legal fees.

[40] The Respondent submitted that the Applicant commenced her discussions with the Ombudsman on the advice of her representative, after having decided to discontinue the first application. The Respondent submitted that the Applicant was fixated on her belief that the Respondent had not met its obligations to her in relation to her employment. The Respondent also submitted that after speaking to the Respondent, the Fair Work Ombudsman chose to immediately close the case and did not investigate the allegations raised by the Applicant. The Respondent submitted that the Fair Work Ombudsman determined that there were no outstanding issues relating to the Applicant’s employment, including the provisions of the Applicant’s payslips or alleged underpayments. The Respondent was informed of this on 11 December 2020.

[41] The Respondent submitted that the Applicant only recommenced her pursuit of the unfair dismissal application after being advised by the Ombudsman that she had no prospects of success and/or the Ombudsman chose not to investigate her allegations further. The Respondent also submitted that, on the information provided by the Applicant and the discussions between the parties to date, the Applicant was unhappy with the advice given by her legal representative and regrets her decision to instruct her representative to discontinue her first application.

[42] Regretting a decision to discontinue an application is not a valid reason to grant an extension of time and is not exceptional. Further, the Respondent submitted that being confused about the impact and consequence of discontinuing a claim is not a valid reason to grant an extension of time. 6 The Respondent also submitted that if the Applicant believed that her representative had not provided her with professional and strategic advice, overcharged her or acted in any manner that could be considered professional misconduct, then that is a matter for the Applicant, her representative and the Queensland Legal Services Commissioner.

[43] The Respondent further submitted that representative error in and of itself is neither rare nor exceptional and that the existence of representative error in many contexts is so well recognised that all legal practitioners are required to hold professional indemnity insurance so as to protect their clients against the consequences of representative error. Accordingly, the existence of representative error does not deprive an applicant of their remedy against an alleged wrong and the representative can be called upon to provide recompense to a wronged applicant.

[44] Accordingly, the Respondent contended that the Applicant cannot rely on the grounds of representative error and has not established exceptional circumstances to warrant a further period for filing. The Respondent also submitted that the Applicant has not provided an explanation for the delay between 2 December 2020 and 16 December 2020. The Respondent noted that the First Application was discontinued on 2 December 2020 and the Applicant did not re-agitate the matter until 16 December 2020, being a significant delay between when she instructed her representative to discontinue the matter, and when she filed the current Application in question. The Respondent also submitted this is only one factor in considering whether the Commission should accept an extension of time and submits that this factor weighs against the Applicant.

[45] In relation to action taken by the Applicant to dispute the dismissal the Respondent submits that other than between 14 December 2020 and 16 December 2020, the Applicant took no proper action to dispute the discontinuance of her First Application. The Respondent submitted that the Applicant took no action to dispute the discontinuance of the first application between 2 December and 14 December 2020.

[46] The Respondent accepted that granting an extension would provide minimal if any prejudice to the Respondent but submitted that absence of prejudice does not mean an extension of time should be granted. The Respondent submitted that it is entitled to rely upon the statutory time limit being complied with and is being put to additional cost by the request for extension of time. It was also contended that in seeking to extend time to progress the matter to hearing before the Commission, the Applicant is seeking to prejudice the Respondent by shifting the costs of the Applicant’s representative’s negligence on to the Respondent. The Respondent submitted that this should be a consideration weighing in favour of the Respondent.

[47] In relation to merits, the Respondent submitted that the Applicant’s substantive application has no prospects of success because the dismissal was a case of genuine redundancy in accordance with s.389 of the FW Act and referred to the following matters:

• The Respondent no longer required the Applicant’s job to be performed by anyone (s.389(1)(a));

• The Respondent complied with its obligation to consult with the Applicant regarding the redundancy (s.389(1)(b)); and

• The Applicant rejected the Respondent’s offer of re-deployment, there were no other opportunities for re-deployment, and the Respondent does not have any associated entities (s.389(2)).

[48] The Respondent submitted that on 20 August 2020, it wrote to the Applicant, inviting the Applicant to an at-risk meeting on Wednesday, 24 August 2020 at 1.45pm and at that meeting, advised the Applicant that it was making significant adjustments to its businesses operations, including a restructure of the business in response to government restrictions resulting from the COVID-19 pandemic.

[49] The Respondent submitted that the changed operational requirements meant that the Respondent no longer required the Applicant’s role of dental assistant to be performed by anyone on a full-time basis and this continues to be the case. The Respondent also submitted that the relevant test is whether the position survived the restructure, not whether the Applicant’s duties have survived in some form, 7 and the position of full-time dental assistant did not survive the restructure.

[50] The Respondent submitted that it has met the requirements under section 389(1)(b) of the FW Act and there were no other reasonable redeployment opportunities for the Applicant. While it offered the Applicant the role of part-time dental assistant, the Applicant rejected this role and there were no other redeployment opportunities, and the business has no associated entities.

[51] The Applicant has not satisfied the requirement of exceptional circumstances and has not established that representative error has occurred on the facts and further the substantive application has no merit as the dismissal was a case of genuine redundancy in accordance with s.389 of the FW Act. Accordingly, the Respondent submitted that the Applicant should not be granted a further period for filing her application in all of the circumstances, and that her application should be dismissed.

CONSIDERATION

Reason for the delay

[52] The delay required to be considered in s 394(3)(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. 8 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.9

[53] 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 the applicant’s favour, however all of the circumstances must be considered. 10 In the present case, the reason for the delay advanced by the Applicant is representative error.

[54] The concept of representative error as an acceptable explanation for delay was a departure from the traditional approach by courts and tribunals that delays by a solicitor should be visited on the client. A series of cases developed the concept that an inexcusable error for which the client is blameless, is a matter that may amount to an acceptable explanation for delay in filing an application. 11

[55] It is well established that representative error may provide an explanation for delay in making an unfair dismissal application that can weighed in favour of a finding that there are exceptional circumstances justifying the grant of a further period for an application to be made. 12 The following principles in relation to representative error set out by a Bull Bench of the Commission in Clark v Ringwood Private Hospital13 were distilled by a Full Bench of the Commission in Davidson v Aboriginal & Islander Child Care Agency14 as follows:

(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 accepted.

[56] In Clark and Davidson the provisions of the Act being considered were to the effect that the Commission may accept an application made out of time, if the Commission considered that it would be unfair not to do so. While there is a material difference between the former provisions and those in s. 394(3) the principles in relation to representative error continue to be relevant.

[57] In Robinson v Interstate Transport Pty Ltd 15 a Full Bench of the Commission held that depending on the particular circumstances of a case, representative error may constitute exceptional circumstances and be a sufficient reason to extend time. The Full Bench stated that the conduct of the Applicant is a central consideration to deciding whether representative error provides an acceptable explanation for delay. The Full Bench distinguished the case of an applicant who leaves the matter in the hands of a representative and takes no steps to inquire as to the status of their claim, from one where an applicant gives clear instructions to the representative to lodge a claim and the representative fails to carry out those instructions, through no fault of the applicant.

[58] In the latter case an applicant is blameless and it is more likely that representative error will be given significant weight in consideration of whether there are exceptional circumstances justifying a further period to make an application. 16 Representative error can include inactivity or carelessness of an applicant’s representative.17 It is also apparent from the case law concerning representative error as an explanation for delay that it is necessary to balance the nature of the error and to consider the contribution that the applicant’s conduct made to the error or the delay.

[59] In the present case the representative error is said to be the action taken by the Applicant’s legal representative to advise the Commission of the discontinuance of her application in circumstances where the Applicant did not instruct the representative to discontinue. Rule 10 of the Fair Work Commission Rules 2013 provides as follows:

10 Discontinuance

(1) An applicant in an application before the Commission may discontinue the application at any time.

(2) To discontinue the application, the applicant must notify the Commission by:

(a) lodging a notice of discontinuance; or

(b) advising the Commission, or a member of the staff of the Commission, by letter, email, fax or telephone, or orally in person, that the applicant:

(i) wishes to discontinue the application; or

(ii) has settled the application; or

(iii) wishes to withdraw the application; or

(iv) no longer needs the Commission to deal with the application; or

(3) To remove any doubt, this rule does not prevent the Commission from dismissing an application on its own initiative.

[60] It is clear the staff Conciliator treated the email correspondence from the Applicant’s legal representative as withdrawing the first unfair dismissal application. Given the terms of the correspondence this is understandable. The Commission does not have power to set aside a discontinuance or a withdrawal of an application, including where it is asserted that the withdrawal was a result of duress or mistake or error on the part of a legal representative. In AB v Tabcorp Holdings Pty Ltd a Full Bench of the Commission said:

[11] We agree with the proposition that in certain circumstances a notice of discontinuance can, in effect, be set aside if it was filed by mistake or under duress. However we doubt that such a power may be exercised by the Commission. It seems to us that any such application would have to be made to a court - for a declaration that the notice was a nullity. As an arbitral body the Commission cannot grant declaratory relief. The issue does not arise in this case because the Deputy President dismissed the application before her.

[12] Of course, as was observed in Narayan, filing a notice of discontinuance does not preclude the filing of a further unfair dismissal application (see Narayan at [15]-[30]), though such an application will be subject to the time periods specified in s.394(3). In deciding whether to extend the time for the filing of such an application it would be open to the Commission to consider the circumstances surrounding the filing of the earlier notice of discontinuance, including whether it was filed by mistake or under duress.

[61] There have been several cases where consideration has been given to whether a discontinuance of an unfair dismissal application effected by a legal representative, without express instructions from an applicant, is a representative error explaining a delay in filing a later unfair dismissal application. In Harland v Holcim (Australia) Pty Ltd 18 the applicant’s legal representative withdrew a general protections application after the applicant sent an email stating that “at this time I will not be proceeding with the matter”. After an unsuccessful attempt to reopen the matter the applicant in that case filed a second application and contended that the discontinuance of the first application was a representative error constituting exceptional circumstances so that a further period in which to make the second application should be granted. A further period was not granted in that case for reasons including that the applicant’s email was ambiguous and she did not give evidence that it was not her intention to discontinue her application or that the email did not contain valid instructions to discontinue.19 Further, it was found that there was a lack of timely activity on the part of the applicant to remedy the situation.20

[62] Johnston v East Gippsland Real Estate Pty Ltd 21 was another case where the applicant changed representatives and informed his original representative that he was not going to proceed any further with the firm. The applicant’s original representative filed a notice of discontinuance in relation to his application. The applicant in that case contended that he was not aware of the discontinuance until another legal representative that he subsequently engaged filed a notice advising of commencing to act in the original matter. The applicant also contended that the notice of discontinuance was lodged without his express instructions. Further, the applicant contended that the representative in his first matter may have misinterpreted his email advising that he no longer wished to be represented by them and that the discontinuance of the first matter was a representative error.

[63] In granting a further period for a second application in Johnston, the Commission heard evidence from the applicant and found that the applicant was blameless and had acted swiftly to file his second application upon finding that the first had been discontinued. The Commission in that case also found that it was apparent from the text of the applicant’s email that he wished to no longer be represented by the particular firm rather than to discontinue his application, and that the filing of the notice of discontinuance was a clear error on the part of the firm.

[64] In the present case, the Applicant was dismissed with effect from 9 October 2020. The first unfair dismissal application was filed on behalf of the Applicant on 29 October 2020 – twenty days after the dismissal took effect. The application was listed for conciliation on 17 November 2020. At this point the first application was still on foot and this provides an explanation for the period from 30 October (the last date upon which an unfair dismissal application could have been filed within time) until 17 November 2020 when the conciliation conference in relation to the first application was conducted. There is also evidence that by 24 November 2020 there were ongoing settlement negotiations as indicated in the email sent by the Applicant’s representative to the Conciliator on that date, asking for a 24 hour period to allow instructions to be taken from the Applicant. The application was still on foot on 27 November when the Conciliator again emailed the Applicant’s representative seeking an update in relation to whether the Applicant sought arbitration in relation to the matter.

[65] The matter remained on foot until it was taken by the Commission to have been withdrawn by the Applicant’s representative on 2 December 2020 by email sent on that date. The Applicant stated that her relationship with her former representative was terminated “after the conciliation on 30 November 2020”. Given that the date of the conciliation conference was 17 November 2020, and on the basis of the email communication between the Applicant’s then representative and the Conciliator on 24 and 27 November, it is probable that the Applicant’s then representative was involved in some settlement discussions with the former employer after the conference and that those discussions had concluded unsuccessfully by 2 December when the Applicant’s representative informed the Conciliator that the Applicant had decided not to move forward with the application. The email sent by the representative on 2 December 2020 is not consistent with the representative having ceased to act for the Applicant at that point.

[66] The Applicant’s evidence about when she ceased to be represented by the lawyer who assisted with her first application is not clear and in the face of the evidence that the representative sent an email on the Applicant’s behalf on 2 December 2020, it is probable that the relationship had not ceased at that date. The evidence also suggests that the Applicant acted on the advice of her representative that she should not pursue her unfair dismissal application but should instead lodge a complaint with the Office of Fair Work Ombudsman in relation to unpaid wages.

[67] The Applicant stated in her evidence that she lodged a complaint with the Fair Work Ombudsman on 1 December 2020 “regarding lost wages and unreceived payslips”. This is consistent with the advice that the Applicant said that she received from her representative to make such a complaint. The Applicant did not pursue her unfair dismissal application until after she had spoken to a staff member in the investigation unit of the Office of the Fair Work Ombudsman. An unfair dismissal application is entirely separate from any claim for unpaid wages, and there is no reason why – if the Applicant wished to pursue her unfair dismissal application – she could not have done so in tandem with a claim for unpaid wages. The Applicant provides no explanation for her failure to take steps to progress her unfair dismissal application in that time, other than she was waiting for advice from the Office of the Fair Work Ombudsman. This does not establish that the Applicant did not understand that her unfair dismissal claim was to be discontinued by her representative.

[68] The Applicant also said that her former representative emailed her 1 December 2020, providing her with a link to the notice of discontinuance and that this caused the Applicant to believe that the matter could only be discontinued if she completed the documentation. Despite being provided with an adjournment to enable her to provide this email to the Commission the Applicant did not do so. Instead, the email tendered by the Applicant from her former representative is dated 30 November 2020 and is a link to information on the Fair Work Ombudsmen’s website in relation to helping to resolve workplace issues by asking for help. It is not a link to a notice of discontinuance. This email is also consistent with the representative indicating to the Applicant that she should pursue her dispute with her former employer by means other than making an unfair dismissal application.

[69] The Applicant stated that she had a discussion on 10 December 2020 with a staff member from the investigation unit of the Office of the Fair Work Ombudsman and contends that she was advised that her representative should have made a counteroffer of an amount (which is within the limits of the small claims jurisdiction in the Federal Circuit Court) and filed an application as a small claim. The Applicant also stated that she was advised by the staff member from the Office of the Fair Work Ombudsman that she should not file the notice of discontinuance with respect to her unfair dismissal application. Further the Applicant contended that she was advised by her former representative to withdraw her unfair dismissal application before the Applicant knew that she could have achieved an outcome in the “Magistrates Court” for her unfair dismissal as advised by the Office of the Fair Work Ombudsman.

[70] If that advice was given by the Office of the Fair Work Ombudsman, it would be surprising. While an employee who is redundant may make a claim in a court for unpaid severance payments to which the employee is entitled under s. 119 of the FW Act, the Respondent in the present case appears to be a small business and was not obligated to pay severance payments to the Applicant. Further, the Court does not have jurisdiction in relation to unfair dismissal. The reality is that if the Applicant had a claim for unpaid wages including severance payments under the FW Act, she could have taken that claim to a court regardless of whether her unfair dismissal application had been withdrawn. The refusal of a further period for the Applicant to make a second unfair dismissal application will also not affect any claim she may have for unpaid wages including amounts such as annual leave loading.

[71] The Applicant provided no evidence about what occurred with respect to the complaint she made to the Office of the Fair Work Ombudsman. The Respondent submitted that the claim was not progressed and the Office of the Fair Work Ombudsman advised the Respondent on 11 December 2020 that the matter would be closed as there were no issues with respect to the claim. The Applicant did not dispute this assertion.

[72] These matters suggest that the Applicant only decided to pursue her unfair dismissal when she realised that a claim for unpaid wages would not be pursued by the Fair Work Ombudsman on her behalf. This is also apparent from the correspondence the Applicant sent to the Chambers of Commissioner Bissett on 14 December 2020 in which the Applicant stated that it was not until she had discussions with staff of the Fair Work Ombudsman that she was informed that her solicitor should not have advised her to make a claim for unpaid wages and she should never have discontinued her unfair dismissal application. Later in the same email the Applicant states that her legal representative was only meant to tell the Conciliator verbally that she was going to discontinue the application and it was up to the Applicant to file the actual paperwork. The Applicant’s language in the email to the Chambers of Commissioner Bissett on 14 December 2020, suggests that she knew (at least by that point) that her first application had been discontinued.

[73] A discontinuance does not require the completion of a Form F50 Notice of discontinuance to be effective and the Commission may accept an email or telephone advice of discontinuance. It is arguable that the Applicant decided to discontinue her application for an unfair dismissal remedy and communicated this to her then legal representative who carried out the Applicant’s instruction by email, and that the Applicant later changed her mind about discontinuing the application when she was informed that the Fair Work Ombudsman would not pursue a claim for unpaid wages on her behalf. If a member of staff of the Office of the Fair Work Ombudsman provided the advice recounted by the Applicant – particularly that the Applicant could pursue a claim for unfair dismissal in a Court after filing an unfair dismissal application with the Commission – then that advice is wrong. I think it more likely that the Applicant misunderstood what she was told. None of these matters involve representative error. I am also of the view that any grievance that the Applicant may have with her former legal representative in relation to legal fees is a matter that the Applicant should pursue through appropriate means and is not relevant to the grant of a further period in which to make her application.

[74] Notwithstanding these matters, I accept, on balance, that until 10 December 2020, when the Applicant had a discussion and an email exchange with the Conciliator, that she did not understand that her first application had been discontinued. I have reached this conclusion for the following reasons. First, the email the Applicant’s representative sent to the Commission on 2 December 2021 supports the Applicant’s evidence that she was informed that she was required to file a Form F50 notice of discontinuance in order to discontinue her application. In this regard, the email from the Applicant’s legal representative to the Conciliator states that the representative has been instructed that the Applicant does not wish to move forward with the application and that the representative would arrange for notice of discontinuance to be filed. It is notable that the email from the Applicant’s representative is not copied to the Applicant.

[75] Second, the Applicant maintains that she did not authorise the withdrawal of her first application. This is consistent with the Applicant’s email correspondence to the Conciliator on 10 December 2020 which indicates that she was not aware until that time that her application had been withdrawn. The Applicant states that the email she sent on that date repeats the contents of a telephone discussion with the Conciliator also on 10 December 2020. As previously noted, there is a record of that conversation prepared by the Conciliator on the Commission’s file, which supports the Applicant’s evidence about the discussion and that she was not aware at that point, that her representative had withdrawn her unfair dismissal application.

[76] Third, the Commission’s records do not contain a notice that the Applicant’s former representative ceased to act on her behalf indicating that when the email of 2 December 2020 was sent, the representative was still acting for the Applicant. Accordingly, if the email was sent in error, it was a representative error. Fourth, the terms of the email of 2 December are ambiguous. It is to be expected that a lawyer would understand the effect of Rule 10 and would clearly state whether or not the intention was to withdraw an application. The email does not make this clear and while it is understandable that it was accepted as a withdrawal by Commission staff, the ambiguity of the communication is itself, an error.

[77] As a result of these findings, I am satisfied that the Applicant has provided a reasonable explanation for the delay in filing her second unfair dismissal application. The fact that there were settlement discussions in relation to the first unfair dismissal applicant explains the delay in filing her unfair dismissal application between 17 November (when the conciliation conference was conducted) and 2 December 2020 when the ambiguous email was sent by the representative. The delay in the period from 2 December to 10 December 2020 is explained by the Applicant’s lack of knowledge that her first application had been withdrawn. As soon as she became aware of the withdrawal, the Applicant requested information about moving her application forward to arbitration in her email to, and telephone conversation with, the Conciliator on 10 December 2020.

[78] The Applicant received that advice on 14 December 2020 by email from the Chambers of Commissioner Bisset, and it was reasonable that she would wait for that advice before taking a further step, which explains the delay between 10 and 14 December 2020. The Applicant responded to that email on the day she received it and as requested in the email, confirmed that she wanted to move forward with her unfair dismissal application. The Applicant then moved quickly to file the second application and did so on 16 December 2020. This delay is also reasonable given the Applicant – now unrepresented – had to prepare and lodge the second application.

[79] On balance, the Applicant has provided a reasonable explanation for the period of the delay, and this weighs in favour of her being granted a further period in which to make the application.

Whether the person first became aware of the dismissal after it had taken effect

[80] It is not in dispute that the Applicant became aware of the dismissal on 10 September 2020 and that it took effect on 9 October 2020. The Applicant had the full 21 day period in which to make an unfair dismissal application, and did so by making her first application on the twentieth day after her dismissal took effect.

Any action taken by the person to dispute the dismissal

[81] The Applicant took issue with the advice that her position was to be made redundant, causing her representative to send a legal letter to the Respondent before the dismissal took effect. This is not a case of an application who has raised no issue with a dismissal, seeking to agitate an unfair dismissal case after a lengthy delay. This is a neutral factor in the present case.

Prejudice to the employer (including prejudice caused by the delay)

[82] Other than having to defend the application, there is no evidence that the Respondent is prejudiced by the delay or for any other reason, and this is a neutral consideration.

The merits of the application

[83] As a Full Bench of the Commission observed in Kornicki v Telstra-Network Technology Group²²:

“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.”23

[84] After considering the material filed by the parties, I do not consider that the application is without merit. Neither do I consider that the Applicant’s case is so strong that it could be said that it has merit. Accordingly, I am of the view that merit is a neutral consideration in the present case. In reaching this conclusion, I make the following observations.

[85] It is not disputed that the Respondent is a small business. The Respondent maintains that the Applicant’s dismissal was a case of genuine redundancy and that it was consistent with the Small Business Fair Dismissal Code (the Code). A dismissal will be a case of genuine redundancy where the employer no longer requires the job to be done by anyone because of changes in its operational requirements and where the employer complied with any consultation obligations in a modern award or enterprise agreement (s. 389(1)). A dismissal will not be a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or an associated entity of the employer. The Code applies to a dismissal for conduct sufficiently serious to justify immediate dismissal or other ground based on the employee’s conduct or capacity to do the job (s. 388).

[86] The provisions of the FW Act in relation to genuine redundancy and the Code are mutually exclusive. There is no indication in the material currently filed that the Applicant was dismissed for reasons related to her conduct. Accordingly, the Commission will be required to determine whether the dismissal was a case of genuine redundancy as defined in s. 389 of the FW Act. If it is determined that that dismissal was not a case of genuine redundancy, the Commission will then be required to determine whether the dismissal was unfair because it was harsh, unjust or unreasonable having regard to the matters in s. 387 of the FW Act. If the dismissal is unfair, the Commission will then be required to determine whether a remedy should be granted.

[87] The fact that a dismissal does not meet the requirements in s. 389 with respect to genuine redundancy, does not preclude a finding that the dismissal was for a valid reason as provided in s. 387(a) of the FW Act. In the present case, the Respondent contends that as a result of the COVID-19 Pandemic it was determined that the Applicant’s role was not required to be performed on a full-time basis and that the duties would be performed by a part-time employee on a lower salary rate. Whether or not this was a genuine redundancy and if not a genuine redundancy, an unfair dismissal, can only be resolved at a hearing.

[88] The Decision of Deputy President Bull in Leon Mallard and Others v Parabellum International Pty Ltd t/a Parabellum International 24does not establish a general rule whereby a dismissal in circumstances where the employer determines that a job can be undertaken by a person on a lower rate of pay, will automatically be found to be unfair and cannot be found to be a case of genuine redundancy. Each case will be determined on its own facts. Whether the Applicant will succeed with the application in the present case will be determined on the evidence at a hearing. Both parties have arguable positions and merit is a neutral consideration.

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

[89] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 25 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[90] In circumstances where the Applicant has provided a reasonable explanation for the delay based on representative error, and in circumstances where the Applicant is blameless, I am of the view that it would not be unfair to grant the Applicant a further period. The grant of a further period in this case would not be inconsistent with other cases where representative error has been considered as an acceptable explanation for delay and to weigh in favour of a finding of exceptional circumstances. This consideration is neutral in the present case.

Conclusion

[91] Having regard to the matters I am required to consider as set out in s. 394(3) of the FW Act, I am satisfied that there are exceptional circumstances in this case. There is a reasonable explanation for the delay based on representative error for which the Applicant is blameless and this weighs in favour of a further period being granted. Representative error is an exceptional circumstance and in the present case is not outweighed by the other considerations. Accordingly, I am satisfied that this is a case in which the discretion to extend time should be exercised. An order 26 extending the time for the application in U2020/16058 to 16 December 2020 with this Decision. The matter will now be listed for Mention and Directions for hearing will be issued.

DEPUTY PRESIDENT

Appearances:

The Applicant on her own behalf.

Ms S Christie of Employsure Law for the Respondent.

Hearing details:

15 & 25 February.

2021.

By telephone.

Printed by authority of the Commonwealth Government Printer

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

2 Ibid.

3 U2020/14238.

4 Paul Johnston v East Gippsland Real Estate Pty Ltd[2019] FWC 5483.

5 AB v Tabcorp Holdings Limited[2015] FWCFB 523 at [12].

6 Leanne Smith v In2 Motion Pty Ltd[2018] FWC 7450.

7 Kerkeris v A. Hartrodt Australia Pty Ltd T/A A. Hartrod[2010] FWA 674 at [27].

8 Long v Keolis Downer[2018] FWCFB 4109 at [40].

9 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].

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

11 Comcare v A’Hearn

12 Clark v Ringwood Private Hospital Dec 1159/97 S Print P5279; Davidson v Aboriginal & Islander Childcare Agency Dec 534/98 N Print Q0784; Robinson v Interstate Transport [2011] FWAFB 2728.

13 Dec 1159/97 S Print P5279.

14 Dec 534/98 N Print Q0784.

15 [2011] FWAFB 2728.

16 Ibid at [25].

17 Clark v Ringwood Private Hospital (1997) 74 IR 413.

18 [2017] FWC 5308.

19 Ibid at [57].

20 Ibid at [59].

21 [2019] FWC 5483.

22 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

23 Ibid.

24 [2017] FWC 2431.

25 [2016] FWCFB 6963.

26 PR728375.

Ms Kerri Kendal v Greatful Pty Ltd T/A Northern Beaches Dental Care

[2021] FWC 1284

7 APRIL 2021

DECISION

Approach to deciding whether to grant further period