Paulo Gonzalez v Department of Transport and Planning
[2025] FWC 3089
•15 OCTOBER 2025
| [2025] FWC 3089 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Paulo Gonzalez
v
Department of Transport and Planning
(C2025/5811)
| COMMISSIONER PERICA | MELBOURNE, 15 OCTOBER 2025 |
Application to deal with contraventions involving dismissal
BACKGROUND FACTS
On 29 May 2024, Mr. Gonzalez was sent a letter from Mr. William Little from the “Shaping DTP Team” of the Department of Transport and Planning (DTP) entitled “Immediate Separation Package” which advised:
· The DTP has accepted his application to depart from the Victorian Public Service and receive an immediate Separation Package.
· His final day of work would be 31 May 2024.
· The final day of work was his separation date at which point his employment relationship with DTP would cease on the grounds of genuine redundancy.
Mr. Gonzalez considers he was “targeted in the restructuring process leading to his redundancy” and that the “executive used redundancy process to unfairly dismiss” him.[1] He also considers the redundancy lacked genuineness.
On 3 September 2024, Mr. Gonzalez filed an application under s 365 for the Commission to deal with a general protections dispute regarding his dismissal on 31 May 2024. It was 74 days late. As it was not filed within the 21 day time limit, Mr. Gonzalez made an application for an extension of time before Commissioner Fox which was heard on 25 November 2024. On 23 December 2024, Commissioner Fox refused his extension of time application, and it was dismissed.
Mr. Gonzalez lodged an appeal against that decision. On 4 February 2025, a permission to appeal hearing was heard before a Full Bench comprised of Deputy Presidents Millhouse and O’Neil and Commissioner Lee. In the result, permission was refused by a decision dated 6 February 2025.
On 28 May 2025, the Workplace Injury Commission (WIC) issued a determination certificate and reasons following an arbitration appealing a decision by DXC Claims Management Services (I assume DTP’s claims agent) on 25 January 2024 to refuse Mr. Gonzalez’s WorkCover claim. Mr. Gonzalez in his submissions describes the effect of this decision as “it found [DTP] liable for [Mr. Gonzalez’s] injury” and “overturned the rejection of the claim”.[2]
Mr. Gonzalez claims this WIC decision had the legal effect, by operation of the Workplace Injury and Compensation Act 2013 (WIRC Act), to make his “employment continuous”[3] because (amongst other reasons) DTP was “found to be liable for payment of workers compensation from 25 January 2024 on going, and through DTP’s insurer, has back paid workers compensation, thereby reinforcing the employment relationship was continuous under the [Fair Work] Act”. He argues the effect of the decision “transformed his time from 31 May 2024 to 28 May 2025 to leave of absence on workers compensation”.[4]
He argues further DTP, in “failing to discharge [its] duties under the WIRC Act and their refusal to reinstate him, to initiate a return to work plan, or consult” with him, “amounted to a repudiation of his employment contract” on 17 June 2025, the day he filed a second general protections application.
DTP denies the WIRC Act had the effect Mr. Gonzalez contends and have pressed a jurisdictional objection. The objection is based on the proposition that his actual date of termination was not 17 June 2025, but 31 May 2024. If DTP is correct, the 17 June 2025 application is 361 days late.
The matter was listed for an in person determinative conference in Melbourne on 19 August 2025. Mr. Gonzalez represented himself. DTP was represented by Mr. Michael Carrick, Managing Principal Solicitor of the Victorian Government Solicitor’s Office, instructed by Mr. William Little, Principal Workplace Relations Advisor of DTP.
The materials filed in this matter are prolix. The Digital Court Book is 735 pages long. Further shorter submissions were received by both parties after the DCB had been compiled. DTP filed a book of authorities which refers to 33 authorities and is about 800 pages long. I have read and considered all those documents. If I do not refer to any of those documents, no inference should be made that I have failed to consider them.
WHAT WAS THE DATE OF THE DISMISSAL?
The date of the dismissal is contested and must be determined before any consideration of my discretion to grant an extension of time under s 366. This involves consideration of Mr. Gonzalez’s arguments on the effect of the WIRC Act on his employment.
The WIRC Act argument
Mr. Gonzalez’s argument for the reformation of his contract of employment is based on the WIRC Act. He notes under s 27(2)(b) of the FW Act, “workers compensation” is a non-excluded matter and is within the general exclusion of State and Territory industrial laws in s 26 of the FW Act.
The parts of the WIRC Act relevant to the argument are contained in Part 4, which is entitled “Return to Work”.
The Definitions in that Part are contained in s 96 which includes a definition of the “employment obligation period’ which means 52 weeks from the date the employer receives a claim for compensation from the worker for weekly payments. According to Mr. Gonzalez, the employment obligation period is “exclusive of the rejection period, in his case from 25 January 2024 until the original decision (to reject his claim) was revoked”.[5]
An employer’s obligations in relation to the “employment obligation period” are set out in Division 2 of the WIRC Act. Division 2 contains ss 103 to 105 of the WIRC Act which in summary provides as follows:
Section 103 creates an obligation for the employer, where reasonable, to provide “suitable employment”:
(1)An employer must, to the extent that it is reasonable to do so, provide to a worker until the expiration of the employment obligation period:
(a)suitable employment, while the worker has a current work capacity; and
(b)pre-injury employment, while the worker no longer has an incapacity for work.
Penalty: In the case of a natural person, 180 penalty units;
Section 104 creates an obligation, where reasonable, to plan a return to work:
(1)An employer must, to the extent that it is reasonable to do so, plan the return to work from the date on which the employer knows or ought reasonably to have known of the worker's incapacity for work, whichever is the earlier date.
Penalty: In the case of a natural person, 120 penalty units;
In the case of a body corporate, 600 penalty units.
Section 105 creates an obligation, where reasonable, for the employer to consult about a return to work:
(1)An employer must, to the extent that it is reasonable to do so, consult about the return to work of a worker with:
(a)the worker; and
(b)subject to the consent of the worker, the worker's treating health practitioner; and
(c)a provider of occupational rehabilitation services that provides those services to the worker in accordance with Divisions 6 and 7 of Part 5 of this Act or Divisions 2B or 2C of Part IV of the Accident Compensation Act 1985.
Penalty: In the case of a natural person, 120 penalty units; In the case of a body corporate, 600 penalty units.
The effect of the WIRC Act was to re-establish “continuity of employment”
In his written submissions, Mr. Gonzalez argues “through the action of the WIRC Act, his employment remained continuous” on the following bases:
· DTP was found to be liable for payment for workers compensation from 25 May 2024 and he was back paid workers compensation to that date, “thereby reinforcing the employment relationship as continuous under the Act”. “The WIRC Act has transformed his time from 31 May 2024 to 28 May 2025 to a leave of absence on workers compensation”.[6]
· The argument for continuity is supported by the meaning of ‘period of employment’ and a ‘period of continuous service’ under s 384(1) and Mr. Gonzalez relies on the full bench in WorkPac Pty Ltd v M Bambach, where it stated, ‘The fact that the payments were made pursuant to a legal obligation upon the employer is the critical consideration.’ … ‘We have concluded that an absence on workers compensation is not an ‘excluded period’ within the meaning of s 22.’”[7]
· If the “WIRC Act did not reestablish the employment relationship then the legislation would practically be of no effect. It would allow employers to dismiss employees between rejection and the subsequent revocation”. Mr. Gonzalez relies on a Full Bench decision in Bambach from which he quotes that it would be ‘improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect’. Mr. Gonzalez submits “it is just as right to apply this principle to the WIRC Act.”[8]
· DTP “had opportunity throughout the WorkSafe conciliation and arbitration process to dispute if I was a Worker and they were an Employer under the WIRC Act, and they did not. The arbitrator proceeded on the basis that I remained a Worker, even noting my redundancy on 31 May 2024”. Mr. Gonzalez submits DTP’s “silence supports the inference that the employment relationship remained live or revived upon acceptance of the claim.”[9]
· Mr. Gonzalez continues: the “only logical position is that DTP until such time as it legally discharges its obligations under the WIRC Act to release them from the legislated obligation, DTP was still his Employer.”[10]
There is another element to Mr. Gonzalez’s argument. DTP has repudiated his contact of employment by to discharge its duties of the WIRC Act (following the arbitral decision), namely by failing to respond to Mr. Gonzalez’s request for reinstatement and by neither consulting nor developing a return to work plan. Mr. Gonzalez claims the repudiatory breach occurred on 17 June 2025, the day he filed his second general protections application.
DTP’s counter arguments
DTP argues Mr. Gonzalez’s argument on the effect of the WIRC Act is wrong on a number of bases:[11]
· Applying the rules of statutory interpretation, these provisions of the WIRC Act must be read in context and their purpose considered. The context is that the WIRC Act provides for a statutory no-fault workers compensation scheme.
· The purpose of Section 103 of the WIRC Act is not to re-enliven employment relationships that have ended, and no such interpretation, even one focused solely on the literal meaning of the words of the section, can reasonably be drawn.
· Sections 103 to 105 (inclusive) are qualified by the words “to the extent that it is reasonable to do so”. Those qualifying words recognise the obligations described in those sections are subject to a number of contingencies, the most important contingency being the continuation of the employment relationship. Where the employment relationship has ended, these sections cease to have any work to do.
· No indication arises from the WIRC Act that the employment relationship will be re-enlivened upon a WorkCover claim being accepted. That view is supported by the fact that WorkCover payments made under the statutory scheme can ensure for years after the employment relationship has ended. They are not coincident.
· The obligations under section 103 do not apply where an employee has been terminated for reasons unrelated to a workplace injury. In the case of Morovan v Laverton Cold Storage,[12] Deputy President Colman held s 103 [of the WIRC Act] must be read in the context of the division and the part of the Act in which it sits. The DTP quotes this passage from that decision:
Part 4 of the WIRC Act is concerned with the return to work of injured workers. As s 97 explains, the purposes of Part 4 include to provide that employers, workers and others involved in the return to work process co-operate to ensure that workers successfully return to work, and that employers are responsible for providing pre-injury employment or suitable employment to enable workers to return to work. The section is simply not concerned with the dismissal of an employee for misconduct or other reasons unrelated to a workplace injury. (emphasis added)
· The consequence for an employer who breaches the WIRC Act is liability to civil penalties. The imposition of penalties in the event of a breach of the WIRC Act does not have the effect of recreating or restoring an employment relationship.
· In Conlon v Savers Australia Pty Ltd,[13] Deputy President Anderson considered whether analogous South Australian legislation (relating to workers compensation) was capable of affecting the existence of an employment relationship. The Deputy President found:
…whilst it has been held by the SAET that s 18 of the Return to Work Act 2014 (SA) sits alongside the unfair dismissal provisions of the FW Act and is not inconsistent with them, I do not consider that the duty to provide work under s 18 of the Return to Work Act 2014 (SA) deems the establishment of an employment relationship if one does not exist or is not recreated in fact by agreement or by order. To the extent I need to express an opinion on that question, I am of the view that an employer may be in breach of the statutory duty if it fails to do so at a given point in time when the duty operated but s 18 does not deem an employment relationship to exist at that time if one had not existed in fact or is otherwise ordered to have existed by force of law. (emphasis added)
· In Morovan v Laverton Cold Storage, Deputy President Colman accepted that s 103 of the WIRC Act is "simply not concerned with the dismissal of an employee for misconduct or other reasons unrelated to a workplace injury".[14] Mr. Gonzalez argument that he was dismissed due to the repudiatory conduct of DTP on 17 June 2025 is therefore misguided. The decision of the WIC when it arbitrated his WorkCover claim could not restore his relationship of employment with DTP which had already clearly ended on 31 May 2024.
Consideration
Plain Meaning of Part 4 of the WIRC Act
The obligations of an employer in the WIRC Act oblige an employer to provide employment, plan a return to work and to consult “where it is reasonable to do so”. On a plain English and literal reading, these sections do not oblige the employer to re-employ an employee whose contract has ceased. If the drafters of this provision had intended the provisions to have that effect, it would have done so.
The argument that if the WIRC Act does not re-establish the employment relationship it would mean the legislation is rendered ineffectual is not persuasive. The effect of the Act is to oblige the employer to provide employment for around a year. It is designed to facilitate a return to work, not to reestablish an employment contract. If an employer does not provide suitable employment, does not consult or provide a return to work plan (if in each case it was unreasonable) the remedy is not the reformation of the contract. It is liability for the civil penalties prescribed in s 103(1)(b), s 104(1) and s 105.
Bambach
Mr. Gonzalez’s reliance on Bambach for continuity of employment through the WIRC Act is not persuasive. Mr. Bambach was employed by Workpac with a series of host employers from 16 April 2007. On 1 June 2010, Mr. Bambach was injured and was in receipt of WorkCover payments from 2 June 2010 until 23 September 2011. On the later date, he was certified fit to resume his duties. He received a separation certificate on 17 October noting his employment ceased on 23 September 2024.
The question in Bambach was whether the time Mr. Bambach was on WorkCover broke “continuous service” or was “an excluded period” for the purposes of s 22.
Unlike Mr. Gonzalez’s situation, Mr. Bambach’s time of WorkCover occurred before his employment was terminated. The Full Bench found the period during which he received WorkCover did not break his continuity of employment. The Full Bench held his employment continued through the period on WorkCover. The Full Bench did not find the period of WorkCover reanimated his employment relationship but that it continued up to the time Mr. Bambach was terminated. This case cannot support an argument where the contract of employment ceased, “continuity of employment” re-establishes the employment contract.
The argument based on the failure of DTP to argue Mr. Gonzalez was no longer a “Worker”
Mr. Gonzalez’s argument that DTP did not object to the proposition that he was a “worker” under the WIRC Act “supports the inference that the employment relationship remained alive” cannot be sustained.
I accept DTP’s proposition that WorkCover payments made under the statutory scheme can and do continue for years after the employment has ended. Rights under the statutory scheme for workers compensation are not dependent on whether the applicant is still employed. Their failure to argue he was not a “worker” is irrelevant.
Conlon
DTP relies on Deputy President Anderson’s decision in Conlon in which he held the equivalent sections of the South Australian Workers Compensation Act “does not deem an employment relationship to exist at that time if one had not existed in fact or is otherwise ordered to have existed by force of law”.
Mr. Gonzalez seeks to distinguish Conlon because Ms. Conlon made a workers compensation claim after being terminated. Mr. Gonzalez points to differences between s 18 of the Return to Work Act 2014 (SA) and the WIRC Act because, under the South Australian legislation, the employment is excluded where the “worker has left employment” under the South Australian Legislation.
In reply to these arguments, DTP:
· Concedes factual differences between the circumstances of Mr. Gonzalez and Ms. Conlon and argues nothing in the decision indicates the timing of the claim was a relevant factor.
· Argues the qualifications of s 18 were not the reason Deputy President Anderson considered the South Australian Act did not deem the existence of employment relationships. Instead, he held the consequences of breaching the Act were limited to breach of a statutory duty, enlivening a right to prescribed remedies under state law.5
I agree with DTP. The Deputy President’s finding that nothing in the South Australian equivalent “deems an employment relationship to exist if one had not existed in fact” did not arise out of the qualifications to s 18. It arose from his analysis that the consequences of breaching the Act were limited to breach of statutory duties and for the remedies prescribed for those breaches. This analysis is directly analogous to the situation under the WIRC Act.
Morovan
Morovan is a decision in an unfair dismissal proceeding. Mr. Morovan contended his dismissal was in contravention of s 103 of the WIRC Act because the company did not meet its obligation to retain him in employment for the employment obligation period following an Achilles heel injury. In that decision, Deputy President Colman considered the terms of s 103 of the WIRC Act:
[45] Mr Morovan contended that s 103(1) prohibited the company from terminating his employment. The contention is misconceived.
[46] Section 103 must be read in the context of the division and the part of the Act in which it sits. Part 4 of the WIRC Act is concerned with the return to work of injured workers. As s 97 explains, the purposes of Part 4 include to provide that employers, workers and others involved in the return to work process co-operate to ensure that workers successfully return to work, and that employers are responsible for providing pre-injury employment or suitable employment to enable workers to return to work. The section is simply not concerned with the dismissal of an employee for misconduct or other reasons unrelated to a workplace injury.
DTP relies on this passage to support its argument that the WIRC Act cannot reanimate Mr. Gonzalez’s employment relationship.
Mr. Gonzalez argues Morovan “supports his argument”. He argues it “specifically relates” to his circumstances because “he was dismissed after lodging a workplace injury claim because the Deputy President found ‘… [o]bviously, where an employer dismisses an employee for reason of capacity, and the employee has a workplace injury, s 103 may be relevant. But it is not relevant in cases where the reason for dismissal has nothing whatsoever to do with a workplace injury, which is the case here. Mr. Morovan does not allege that his dismissal is related to his Achilles heel injury or a return to work, and there is no basis in the evidence for any such contention.’”
DTP responds by stating that it “does not rely upon Conlon to argue DTP was permitted to dismiss Mr. Gonzalez because of his redundancy”. It relies on it to establish that obligations owed by an employer under the WIRC Act exist entirely separately from their common law relationship of employment with an injured worker. I agree with DTP’s analysis.
Conclusion on the WIRC Act argument
Nothing in the terms of Part 4, and in particular of ss 103 to 105 of the WIRC Act, supports a conclusion that the effect of those provisions is to reanimate a dead employment relationship. The remedy for failures to meet the employer obligations in Part 4 are proceedings for breach of statutory duty and liability for civil penalties. The findings of the presidential members in Conlon and Morovan support these conclusions.
The arbitrated decision which found DTP liable to make workers compensation payments had no effect on the May 2024 cessation of his employment relationship. The alleged failure of DTP to comply with the WIRC Act could not repudiate an employment relationship that no longer existed. Mr. Gonzalez’s employment was terminated on 31 May 2024, the date nominated in the “Acceptance of Your Immediate Separation Package” letter dated 29 May 2024.
The application is therefore 361 days late.
EXTENSION OF TIME
The Commission has power to extend the time for making the application if the Commission is satisfied that there are exceptional circumstances under s 366(1)(b).
Section 366(1) of the Act provides:
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
The 21-day period does not include the day on which the dismissal took effect.[15]
Mr. Gonzalez’s dismissal took effect on 31 May 2024. It follows the final day for filing the application was 21 June 2024 and ended at midnight on that day. Mr. Gonzalez’s application was filed on 17 June 2025.
I may allow a further period for a general protections application if I am satisfied there are exceptional circumstances, taking into account:[16]
(a) Mr. Gonzalez’s reason for the delay.
(b) any action taken by Mr. Gonzalez to dispute the dismissal.
(c) prejudice to DTP (including prejudice caused by the delay).
(d) the merits of the application; and
(e) fairness as between Mr. Gonzalez and other persons in a similar position.
Each of these matters must be considered in assessing whether there are exceptional circumstances.[17]
It is well settled that in s 366 “exceptional circumstances” means “out of the ordinary course, unusual, special or uncommon”. Exceptional circumstances may be a series of events that together are exceptional.
REASON FOR THE DELAY
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[18]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr. Gonzalez has not provided any reason for any part of the delay.[19]
Mr. Gonzalez’s reasons for delay were as follows:
Significant physical and mental injury
Mr. Gonzalez claims he was suffering from “significant physical and psychological injuries during the period 31 May 2024 to 3 September 2025 and he claims he “was not being effectively treated for all his symptoms”. Mr. Gonzalez provided medical reports which report that Mr. Gonzalez suffers from a number of medical conditions, including:[20]
· Long COVID complicated by Postural Orthostatic Tachycardia Syndrome, Subclinical LV Dysfunction, Fibromyalgia, Myalgic Encephalomyelitis/Chronic Fatigue Syndrome, Functional Neurological Disorder. The symptoms ascribed to these conditions are that they “contribute to brain fog, memory and concentration issues, fatigue, pain, and other neurological sensitivities”; and
· Psychological injuries including Adjustment Disorder, Panic Disorder and Post Traumatic Stress Disorder (PTSD). The symptoms of these conditions are that they “contribute to aversion and physical traumatic response to stressors …”
To support his argument the symptoms of these various conditions prevented him making an application, Mr. Gonzalez relies on a statement made by Dr. Manzini, his psychologist, in a letter dated 6 November 2024.[21]
“The purpose of this letter is to inform you of the circumstances surrounding the missed deadlines by my client Paul. As a result of the abovementioned conditions experienced during his time serving as an electrical engineer for the Department of Transport and Planning, Paul has developed anxiety and trauma-based symptoms with noticeable impact on his ability to function optimally. Dynamics of bullying and harassment in the work environment have the potential to jeopardize cognitive functioning – which includes impairments in concentration, decision-making, working memory, problem-solving, and overall productivity levels
…
It is therefore my professional opinion that these factors have significantly contributed to Paul’s recent difficulties with executive functioning – which have resulted in the herein-discussed missed deadlines.”
DTP argument on medical incapacity
DTP argues that, despite Mr. Gonzalez’s claimed incapacity, he took a number of steps during the period of the delay which demonstrate a capacity to prosecute his rights during the period,[22] including:
· Taking various steps including the drafting of “extensive submissions” during the consultation period related to the proposed redundancies in the DTP prior to the cessation of his employment.[23]
· Applying for an expedited decision of the delegate to affect an earlier departure, by way of an Immediate Separation Package, in lieu of the extended redeployment option available to him.
· Sought clarification on the timing of the payment in lieu of notice, citing legal authority;
· Making two WorkCover applications in the period between 21 December 2023 and 27 May 2024;
· Initiating two separate WorkCover appeals to the Workplace Injury Commission in respect of rejection of his original WorkCover claims between 29 January 2024 and 10 July2024.
· Engaging in communications with DTP’s Injury Management Team in May 2024 and it’s Workplace Relations Team on 12 June 2024 relating to his assertion of bullying; and
· Seeking consultations with and attendubg multiple doctors' appointments in the period before and following the missed deadline.
DTP argues:[24]
· Mr. Gonzalez’s “detailed response to his possible redundancy and his two WorkCover claims and subsequent appeals in respect of both WorkCover claim decisions, and his other engagements with the DTP, run counter to his suggestion that he had a debilitating illness, which affected his "memory, concentration and ability to make decisions" to the extent that he could not file a GP claim under 361 days following the cessation of his employment; and
· It is neither plausible nor credible that the medical conditions raised by Mr. Gonzalez affected his capacity to adhere to the time limit prescribed under s 366(1) of the Act but did not affect his capacity to engage in the activities to prosecute his rights.
Belief in “continued employment and awareness of the dismissal”
In his outline, Mr. Gonzalez gives a further reason for his delay, his “awareness of the dismissal” and his “belief in continued employment”.[25]
He gives as the basis of this belief that the “determination of his Worksafe claim had not been made”. He argues this “belief was realised when the WIC through arbitration overturned the original rejection and directed DTP to pay worker’s compensation backdated to 24 January 2024”. He also submits that he should not be “unfairly treated under the law for actions of DTP during the significant period of legal uncertainty.”
DTP’s counter arguments[26]
DTP responds to this reason on two bases that:
· Mr. Gonzalez had ample opportunity to seek advice about his redundancy.
· His “belief” that his employment was still ongoing was “clearly ill founded”.
· The argument that he has a reasonable belief his employment was ongoing is not consistent with his further argument that he took action to dispute the dismissal. DTP “asserts” that Mr. Gonzalez poses two conflicting arguments: his belief in his ongoing employment on the one hand and the actions he took to dispute the dismissal on the other.
In relation to the opportunity to seek advice, DTP refers to Mr. Gonzalez’s evidence that he sought legal assistance in August 2024. It argues it was open to him at any time within three weeks of the cessation of his employment to seek assistance of his union, other support parties or instruct solicitors to act for him and file the claim in time. His failure to do so is unexplained.
In an email dated 4 November 2024, Mr. Gonzalez indicated he was seeking assistance from his union, months after the deadline had passed.
From 28 November 2023, Mr. Gonzalez was put on notice that there was a prospect his employment would cease. Six months elapsed between being put on notice and the cessation of his employment. He could have consulted a representative and explored his options in respect to a possible cessation of his employment.
DTP relies on the decision of Jones J in Potts v. Kings Warehousing,[27] where she refused to grant an extension of time of four days to a self-represented litigant. In the course of that decision, her Honour stated:
The applicant relies on his unfamiliarity of court processes as a reason for delay. This is not an acceptable explanation. The overwhelming majority of persons who represent themselves are in the same position. The applicant demonstrated he was capable of contacting the court registry and accessing the relevant forms from the court’s website. His difficulty is that he failed to take these simple steps in a timely manner leaving these steps he ought to have taken until the day he was required to initiate these proceedings.[28]
DTP therefore argues:
· Mr. Gonzalez’s failure to seek legal or union assistance is unreasonable “where he had 6 months prior to the date of cessation of employment to seek such assistance and a further three weeks from that date to obtain legal or union assistance to bring his Application”. It argues Mr. Gonzalez had not provided an adequate explanation for that substantial lack of diligence; and
· Mr. Gonzalez contributed to the delay of 361 days in filing the application by failing to obtain representation in a timely manner.
Consideration of the reasons given for the 361 day delay
Singificant physical and psychological injuries
Mr. Gonzalez claims his significant physical and psychological injuries “prevented him from facing the process of a Fair Work Submission.”
Mr. Gonzalez filed a number of medical reports from his treating neurologist, rheumatologist and cardiologist, together with three reports from Dr Davi Macedo, his treating psychologist.
Dr Macedo, in his report of 6 November 2024, notes “dynamics of bullying and harassment in the work environment have the potential to jeopardise cognitive functions which includes impairments in concentration, decision making, working memory and problem solving”. Dr Macedo considers that “these factors” have significantly contributed to [Mr. Gonzalez’s] recent difficulties with executive function.
On the basis of these medical reports, I am satisfied he suffers from these conditions. However, the case law establishes that the existence of the conditions per se are not sufficient to establish a reason for delay.
The principals for dealing with mental health as a reason for delay has been helpfully summarised by Deputy President Easton in Bianco Mamo v. ICLED Australia Pty Ltd[29] which deals with an extension of time to make an unfair dismissal application. In that case, the Deputy President, after a considering the decisions in this area, summarised the approach as follows:
· Stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves.
· A depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant’s capacity to lodge the application within the statutory time limit
· The evidence should positively demonstrate that the applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame; and
· An applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient.
According to the medical reports, Mr. Gonzalez suffers from both physical and psychological conditions. The question in this case is whether the evidence demonstrates that various physical and psychological injuries he suffers had such an impact as to prevent Mr. Gonzalez lodging the application within the 21 day time frame. Further, I must be satisfied that the disabilities he suffered as a result of these conditions give a sufficient reason for the 361 delay.
There is evidence to suggest the impairments he suffered by reason of his conditions did not otherwise prevent him from prosecuting his rights. DTP refers to actions he took during the period of the delay which it says “run counter to his suggestion that he had a debilitating illness which affected is memory, concentration and ability to make decisions” to the extent that he could not file a GP application. These include his capacity to:
· make two WorkCover applications in the period between 21 December 2023 and 27 May 2024;
· initiate two separate WorkCover appeals to the Workplace Injury Commission in respect of rejection of his original WorkCover claims between 29 January 2024 and 10 July 2024;
· engage in communications with DTP’s Injury Management Team in May 2024 and the DTP's Workplace Relations Team on 12 June 2024 relating to his assertion of bullying; and
· seek consultations with and attend multiple doctors' appointments in the period before and following the missed deadline.
Mr. Gonzalez also represented himself at the hearing of his earlier extension of time application before Commissioner Fox on 25 November 2024, and at the hearing of the appeal of that decision before a Full Bench on 6 February 2025 during the period of the delay.
I accept the argument of DTP. The steps Mr. Gonzalez has taken to prosecute his rights in relation to his bullying claim and his workcover claim, together with his earlier self-represented advocacy run counter to an argument that he could not, by reason of his disabilities, do something as simple as lodging general protections claim for a period of over a year.
Reasonable belief in “continued employment and awareness of the dismissal”
The other reason Mr. Gonzalez gives for the delay is his “awareness of the dismissal and his “belief in continued employment”. He says he believed this because the “determination of his Worksafe claim had not been made”. He argues this “belief was realized when the WIC arbitration decision overturned the original rejection and directed DTP to pay worker’s compensation backdated to 24 January 2024”. He also submits that he should not be “unfairly treated under the law for actions of DTP during the significant period of legal uncertainty”.
This argument boils down to a mistaken belief as to the operation of the WorkCover legislation with respect to his employment. Ignorance of the law by non lawyers is typical rather than exceptional. It would be absurd if an applicant could rely on what they believed to be the operation of law as a sufficient reason for a 361 day delay in filing an application.
Conclusion on reasons for the delay
Either collectively or separately, the reasons Mr. Gonzalez has given for his 361 day delay are not sufficient to support an extension of time being granted. This factor therefore counts against an extension of time being made.
WHAT ACTION WAS TAKEN BY MR. GONZALES TO DISPUTE THE DISMISSAL?
Mr. Gonzalez argues the following action was taken to dispute his dismissal:
· Engaging in DTP’s redundancy process “inclusive of alternative submissions, application for redeployment options and reporting of feeling targeted as part of the redundancy process through the DTP Injury Management Team, SafeT System, Business Partner – Annemarie Ellis, in May 2024 and the Workplace Relations Team”.[30] In his evidence he explained his complaints in May were a “workplace bullying claim” with the injury management team, and a “safety complaint on the Safe T reporting system on 21 May 2024 (ten days before his employment ceased).[31]
· Multiple attempts to contact DTP and resolve the matter on 30 May 2025, 3 June 2025 and 16 June 2025. These letters followed the decision of the WorkCover Injury Commission. In that correspondence Mr. Gonzalez says he was “highlighting the initial decision and noting the legislation in support of my on going employment”.[32]
· The filing of the application on 3 September 2024 (which was the subject of the earlier decisions).
The DTP arguments are that Mr. Gonzalez:[33]
· Prepared a detailed response to the proposed abolition of his position during the consultation period prior to the cessation of his employment. In that response, he did not raise any concerns about being selected for redundancy because of race, sexual orientation, physical or mental disability or temporary absence from work because of illness or injury.
· Did not take any other steps to contest his redundancy at the time or in the 6 months leading up to the redundancy. “Instead, he elected to by-pass the redeployment process, which would have seen him employed for at least another three months and potentially redeployed within the Victorian Public Service.”
· Took an enhanced ISP, resulting in the cessation of employment occurring at least three months earlier than may have been the case if redeployment was unsuccessful.
· Does not dispute he was consulted about the workplace change and did not seek a Review of Actions (grievance) under the Public Administration (Review of Actions) Regulations 2015, but applied for and accepted an enhanced ISP.
· The fact that he believed his employment was still ongoing is incongruent with the notion that he had taken actions to contest the cessation of his employment. These two actions should seemingly be mutually exclusive in nature.”
Consideration of action taken to dispute the dismissal
Mr. Gonzalez’s engagement with the redundancy process prior to his cessation of employment cannot be regarded as a contest to his “dismissal” because it was yet to occur. The complaints he made on safety and workplace bullying before his employment ceased cannot also be considered action to contest his dismissal.
The letters in May and June 2025 following the determination of the WIC where he requested that DTP “reinstate me to my preinjury role or a suitable alternative” are contesting the fact his employment ceased in May 2024. I consider as a matter of plain English that can be regarded as action taken to dispute the “dismissal”.
On the earlier failed application for an extension of time, it does violence to the plain English meaning of s 366(b) that an application for the Commission to deal with a dismissal dispute under s 365 is not “action taken to dispute the dismissal”. It therefore must be regarded as action taken to dispute the dismissal.
It follows that in September 2024 and in May, June and July 2025, Mr. Gonzalez took action to dispute his dismissal.
The fact is he did nothing to contest his dismissal:
· For five months between 31 May and 3 September 2024 when he lodged his first general protections application.
· For the three months between the date of the decision on the appeal dismissing his first general protections application in February 2025 until May, June and July 2025 after the WIC decision.
As I understand this factor, it counts towards an extension where, despite the delay, the employer is on notice that the employee contests the dismissal. There were long periods during the delay where DTP may have been uncertain about whether Mr. Gonzalez contested the dismissal. During the lengthy delay, there were periods when Mr. Gonzalez took no action to dispute dismissal, particularly in the five months between the cessation of his employment and the filing of his first general protections application.
In the circumstances where there are gaps between his dismissal in May 2024 and the first contestation of the dismissal by the general protections application in September 2024, and between the initiation of that proceeding and the contestation following the WIC decision in May to July 2025, this factor cannot count in favour of an extension of time being given. As he contested the dismissal sporadically, neither can it count against him.
In those circumstances I regard this factor as a neutral consideration as to whether I should give an extension of time.
WHAT IS THE PREJUDICE TO DTP (INCLUDING PREJUDICE CAUSED BY THE DELAY)?
Mr. Gonzalez argues DTP would suffer no prejudice if the extension of time is granted because it has “continuity of staff and the advantage of continuity of legal representation by the Victorian Government Solicitors Office”.[34]
DTP claim two kinds of prejudice: a forensic prejudice by reason of the length of the delay and a prejudice arising from Mr. Gonzalez being aware of the arguments made by DTP in the earlier application. In relation to the forensic delay, it argues:
· The long delay in the FWC receiving the application (361 days following the cessation of the Applicant's employment) gives rise to a general presumption of prejudice to the DTP relying on a judgement of Kirby J in the High Court in Brisbane Regional Health Authority v. Taylor where his Honour found: “Besides proved prejudice, the long delay gave rise to a general presumption of prejudice”.[35]
· Authorised officers of DTP made decisions regarding the abolishment of the Applicant’s role at a point in time. The passage of time between the abolishment of the Applicant’s role and his general protections application negatively impacts DTP and its authorised officers to clearly demonstrate their state of mind during the change process.
In relation to the prejudice from the earlier proceeding, DTP argues Mr. Gonzalez has been able to prepare this application, with the benefit of its position and counterarguments advanced in the original application and appeal. As a result, Mr. Gonzalez has tailored the application to remove arguments that were previously detrimental to the original application as well as submitting supplementary evidence not provided at first instance, such as:
· He has chosen to omit a previous admission that he mistakenly believed that because he had a WorkCover claim underway he did not have to submit his General Protections Claim within any particular time frame.
· He has omitted the fact that he became aware of the 21-day limitation period for submitting the original application in August 2024.
· He had the benefit of submitting additional medical evidence regarding the subject matter of the original application; and
· Despite his claimed medical condition, the fact that the Applicant was able to embark on periods of travel in March 2024 and June 2024.
Consideration of the prejudice factor
In a recent Full Bench appeal from a decision of Commissioner Ryan in Shiralee Dollar and RC Group Holding,[36] the Bench did not disturb the observation of Commissioner Ryan that “it is well settled a lengthy delay gives rise to a presumption of prejudice”. The Full Bench observed:
“That observation was reasonable in the context of a case where the delay in the Appellant filing her unfair dismissal application is 101 days, The observation is also consistent with the Full Bench in [GHD Pty Ltd v. Kevin Allan Black] where the relevant delay was 168 days.[37]”
The delay in this case is over two times the length of the delay in GHD. Unlike in GHD, DTP made submissions that it suffered prejudice. I accept DTP’s submission that “the passage of time between the abolishing of Mr. Gonzalez role and his general protections application negatively impacts the DTP and its authorised officers to clearly demonstrate their state of mind during the change process”. It follows the length of the delay will lead to a forensic prejudice.
Further, it is undeniable Mr. Gonzalez received an advantage, to the prejudice of DTP, by having the benefit of arguments and counter arguments made by DTP in the earlier application in the preparation of this second application. As the Full Bench in Grabowsky stated: “It is unfair to their opponents to be entangled in repetitive litigation.”[38]
I accept DTP suffered prejudice by reason of the delay. It follows this counts against an extension of time being granted.
WHAT ARE THE MERITS OF THE APPLICATION?
The ostensible facts of the cessation of Mr. Gonzalez’s employment on 31 May 2024 are set out in the submissions and documents filed by DTP.
· A consultation process commenced for redundancies in DTP on 28 November 2023.[39]
· A new workplace structure was announced on 4 March 2024. Mr. Gonzalez was advised his position at DTP was “abolished” and he was given options including voluntarily applying for an Immediate Separation Package (ISP).[40]
· On 20 May 2024, Mr. Gonzalez was sent a letter from William Little of the Shaping DTP team to “inform [him] of [his eligibility for an ISP] and advising him that in order to apply he had to fill in an online form and submit it by 5PM on Friday 24 May 2024”.[41]
· On 27 May 2024, Mr. Gonzalez sent an e-mail to the Shaping DTP team which stated “I am confirming I wish to have my application progressed in the current timeline and will separate employment on Friday 31 May 2024”.[42]
· On 29 May 2024, Mr. Gonzalez was sent a letter from Mr. William Little which stated, “This letter is to advise you that the DTP has accepted your application to depart the VPS and receive an ISP. Your final day of work will be 31 May 2023. Your final day of work is also your separation date, at which point your employment contract and employment relationship with DTP will cease on the grounds of genuine redundancy.[43]
· According to the submissions of DTP, Mr. Gonzalez received a gross amount on his cessation of employment of $222,152.12.[44]
Gonzalez on merits
Mr. Gonzalez argues his redundancy was a sham. He argues he was targeted for prohibited reasons. In his submissions, he states:[45]
· The “dismissal occurred during a protected absence due to illness or injury”.
· The redundancy was a sham “intended to avoid fulfilling return-to-work obligations and to remove him based on his protected attributes and conduct, including his illness, whistleblowing activities, and participation in diversity networks.”
· “The restructure was “used in lieu of appropriate performance management or procedural fairness and therefore consultation was not genuine.”
· In his submissions, he refers to a quote from the Chief Engineer – Rail, who lodged an internal complaint stating: “I fully support his work with I&D [inclusion and diversity]; however, it should not come at the expense of delivering his core function as Principal Engineer, Electrical Systems.”
· Mr. Gonzalez considers this “adverse statement toward his …inclusion and diversity work, supports the inference of a retaliatory motive in the dismissal”. He notes that Chief Engineer “had direct input into the structure that led to his “dismissal” and was part of the executive decision making group that approved the changes.
· In support of his argument the redundancy was a “sham”, he refers to the treatment of his position relative to the position of his “direct report’ Mr. Plarisan:
“While the restructure ostensibly affected both the Applicant and his direct report, Ed Plarisan, … it was in fact Mr Plarisan’s position that was formally made redundant. However, Mr Plarisan was directly appointed to a newly titled role that retained all of the core and ancillary responsibilities previously held by the Applicant effectively continuing the Applicant’s role under a different name and occupant. A contractor was then engaged two days per week to assist Mr Plarisan with the workload.”
· He asserts that:
“A new Senior Rail Engineering Advisor role substantially aligned with the Applicant’s skills and prior experience was created and offered to Matt Robson, a power systems engineer with a comparable CV and the Applicant’s former counterpart at the Respondent’s delivery agency RPV. The Applicant was not offered redeployment to this position as part of the process, nor provided with any opportunity to compete for it.”
Mr. Gonzalez argues that these matters support the conclusion that “he, rather than his role, was targeted for removal.”
DTP’s position on merits[46]
The DTP argues the merits of the application should count “strongly against granting an extension of time”. It concedes I am not required to embark on a detailed consideration of the substantive case for the purposes of determining the application of s 366(2)(d). DTP argues the weakness of the application on the merits weighs strongly against granting an extension of time for the following reasons:
· Mr Gonzalez’s employment ceased with DTP solely on the basis that his role was abolished, and not because the Applicant was exercising a workplace right or because of any protected attribute.
· Mr Gonzalez has not advanced any plausible argument as to why the dismissal was in contravention of the general protections provisions or established at even a preliminary level, a causal link between the Applicant exercising a workplace right or having a protected attribute as the operative reason for his dismissal (which DTP denies).
· The application does not explain in any detail how DTP took adverse action against the Applicant because of his alleged race, sexual orientation, physical or mental disability or temporary absence from work because of illness or injury in contravention of the general protections provisions.
· The termination of the Applicant's employment followed an organisational change within DTP in response to the setting of budget savings targets and reprioritizations announced in the 2023/2024 State Budget.
· Mr Gonzalez’s employment with DTP ceased on the grounds of his role being abolished and on the basis that the Applicant chose to forgo attempts at redeployment within the Victorian Public Service and instead applied for an enhanced ISP and earlier departure.
· Mr Gonzalez was one of 130 employees of DTP whose employment ceased by way of redundancy following extensive consultation from 28 November 2023 to 4 March 2024. Mr Gonzalez was provided with access to independent financial advice.
· His employment was not terminated for reasons of race, sexual orientation, physical or mental disability or temporary absence from work because of illness or injury.
· Mr Gonzalez’s contention that the Senior Rail Engineering Technical Advisor was equivalent to his former role, DTP submits that the advertised role was evidently not equivalent, and the Applicant has conceded, in the original application that the advertised role requires greater cross disciplinary and generic skills.
Consideration of the merits factor
Mr. Gonzalez argues he was dismissed while he was on sick leave. He also claims that his redundancy was a sham, and he was targeted for dismissal because of protected attributes. On the material before me the factual foundation of these claims are a thin gruel.
In circumstances where Victorian Government policy required a restructure, and he was one of 130 made redundant in the DTP, his claim that he was specifically targeted because of protected attributes seems easily overcome by DTP in discharge of its reverse onus. I assess the prospects of his application to be low. On the limited material before me, I can reach no conclusion as to whether his claim is unarguable. The competing claims rest on contested facts. It is not appropriate to resolve contested issues of fact going to the ultimate merits in an extension of time application.
In circumstances where the claims of Mr. Gonzalez may be arguable and rest on contested facts, the merits of the application are a neutral consideration in an assessment of exceptional circumstances.
FAIRNESS AS BETWEEN MR. GONZALES AND OTHER PERSONS IN A SIMILAR POSITION
The criterion of “fairness as between the person and other persons in a similar position” was considered by Deputy President Gostencnik in Morphett v. Pearcedale Egg Farm:[47]
“Cases of this kind will generally turn of 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 related to matters currently before the Commission or matters which have been previously decided by the Commission.”
Gonzalez’s arguments on this factor
In his submissions Mr. Gonzalez makes a number of arguments in respect to this factor:[48]
· The strict enforcement of the 21-day limitation period would result in unlawful discrimination on the basis of disability, contrary to Australia’s obligations under international law and domestic human rights legislation.
· He suffers from significant physical and psychological disability. The strict application of the 21 day procedural deadline “would deny him equal access to justice contrary to the Convention on the Rights of people with Disabilities and the Disability Discrimination Act.”
· He refers to Minister for Immigration and Ethnic Affairs v Teoh,[49] and Minister for Immigration and Multicultural Affairs v Lam.[50] He argues “the High Court recognised that ratified international treaties can give rise to a legitimate expectation in administrative decision-making. These principles are particularly relevant where the treaty is supported by domestic legislation, such as the DD Act.”[51]
· He argues s.578 of the Act requires the Commission, in performing its functions, to take into account equity, good conscience, and the need to respect and value the diversity of the workforce including by preventing discrimination on the basis of race, sexuality, and disability.
· He notes the Commission has not issued procedural guidelines harmonised with the DD Act, despite being empowered to do so under s.609(1) and s.609(2)(d) of the Act or to seek clarity from the Federal Court under s.608 of the Act.
· Lastly, he concluded “In light of these considerations, he contends that the strict application of s.366(1) would be inconsistent with international and domestic anti- discrimination law, and would undermine the principles of access to justice and fairness enshrined in the Act. The discretion to extend time should be exercised in a way that upholds these principles.
The DTP make no submissions in relation to this factor.
As inventive as Mr. Gonzalez’s arguments are, they irrelevant to an assessment of fairness as between himself and other persons in a like position. As that phrase has been interpreted by Deputy President Gostencnik in Morphett, it is focused on “matters currently before the Commission or matters which have been previously decided by the Commission”.
It follows neither party has made compelling submission on this factor and therefore it can be regarded as a neutral consideration in an assessment of exceptional circumstances.
IS THE COMMISSION SATISFIED THAT THERE ARE EXCEPTIONAL CIRCUMSTANCES, TAKING INTO ACCOUNT THE MATTERS ABOVE?
Two factors against an extension of time being granted
The reasons Mr. Gonzalez gave for the delay are insufficient either separately or together to justify the 361 day delay under s 366(a).
His disabilities during the delay did not prevent him from prosecuting his rights in relation to his WorkCover Claims or in drafting submissions and appearing himself in this Commission and before the Full Bench in his earlier application.
In relation to his belief in his continued employment and awareness of his dismissal, this is a mistaken belief as to the operation of law. Such a belief cannot provide a good reason for a delay in filing an application.
I am also satisfied DTP would suffer prejudice both as a result of the delay and as a result of this proceeding being a second attempt at an extension of time under s 366(2)(c),
These factors count against an extension of time being granted.
Three neutral factors
There were gaps between Mr. Gonzalez’s action to dispute the dismissal by filing the earlier general protections application in September 2024 and his correspondence with DTP after his successful WorkCover arbitration in May, June and July 2025. Given those gaps, I am not satisfied this factor should count in his favour. For that reason, I regard this factor as neutral under s 366(b).
I assess the merits are low but arguable. As a merit assessment turns on contested facts, I regard this factor under s 366(d) as neutral.
No compelling arguments were made as to the fairness as between Mr. Gonzalez and other persons in a like position. This factor under s 366(e) is also neutral.
CONCLUSION
Two factors count against an extension of time being made and three are neutral considerations. Therefore, on balance, taking into account all the factors in s 366(2), I am not satisfied there are exceptional circumstances to justify an extension of time.
As I have found there are no exceptional circumstances to justify an extension of time on the basis of the factors contained in s 366, I do not need to have regard to the residual discretion which derives from the formulation that I “may” grant an extension of time if I am satisfied that there are exceptional circumstance under s 366(2).
If I was to rely on this residual discretion, I would not have granted the extension. To grant the extension of time is not a “fair and just” exercise of powers as required by s 577(a).
Mr. Gonzalez’s claim that an arbitrated decision of the WIC concerning WorkCover payments reanimated his long dead employment relationship is without foundation. As that fact did not give rise to anything new, this application is a rerun of the matter which was before Commissioner Fox and the Full Bench, except the length of time between his dismissal and the application is longer.
I refer to the decision of the Full Bench in Grabowksy v. UPA which stated (with emphasis added):[52]
… The finite resources of the Commonwealth are not to be unreasonably diverted by parties who cannot accept that their claims have been unsuccessful and who seek to resubmit them to the Commission. It is unfair for their opponents to be entangled in repetitive litigation. And parties in other matters deserve their turn to be heard.
It follows that even if I had found there where exceptional circumstances, I would not have granted the extension of time.
This application is dismissed.[53]
COMMISSIONER
Appearances:
Mr. Paulo Gonzalez, the Applicant, for himself
Mr. Michael Carrick on behalf of the Respondent
Hearing details:
19 August 2025
11 Exhibition Street, Melbourne
[1] Digital Court Book (from hereon DCB) at p. 34.
[2] DCB 4.
[3] DCB 6.
[4] DCB 7.
[5] DCB 5.
[6] DCB 7.
[7] [2012] FWAFB 3206 at [37], [38] and [67].
[8] DCB 7.
[9] Ibid.
[10] Ibid.
[11] DCB 107-110.
[12] [2020] FWC 2999.
[13] [2023] FWC 1022.
[14] [2023] FWC 1022 [46].
[15] Singh v BSG Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[16] Section 366(2)(b).
[17] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[18] Ibid.
[19] Ibid [41].
[20] DCB 10-11
[21] DCB at 59-61.
[22] DCB 115 – in DTP’s Outline of Submission.
[23] DCB 103-104: These steps are outlined in the Outline of Submissions at paragraphs 2.4 to 2.10.
[24] DCB 115 – DTP’s Outline at paragraphs 7.4 and 7.5.
[25] DCB 14 – Mr. Gonzalez’s Outline at paragraphs 57 to 59.
[26] DCB 116-117 – DTP Outline.
[27] [2014] FCCA 2671.
[28] Ibid at paragraph 37.
[29] [2021] FWC 3903.
[30] DCB 12 – paragraph 60 of Mr. Gonzalez’s Outline.
[31] DCB 34 – paragraph 115 of Mr. Gonzalez’s Outline.
[32] Ibid.
[33] DCB 118 – DTP Outline.
[34] DCB 15: Gonzalez Outline paragraph 79.
[35] 186 CLR 541 at p. 556.
[36] [2025] FWCFB 122.
[37] Ibid [85].
[38] Inna Grabovsky v. United Protestant Association NSW Ltd[2019] FWCFB 1964.
[39] DCB 103 – DTP Outline.
[40] Ibid.
[41] DCB 730 to 732.
[42] DCB 733.
[43] DCB 735.
[44] DCB 104.
[45] DCB 12-14.
[46] DCB 119-121.
[47] [2015] FWC 8885 at [29].
[48] DCB 15-16.
[49] Teoh (1995) 183 CLR 273.
[50] Lam (2003) 214 CLR 1.
[51] There is some doubt whether a “legitimate expectation” of compliance with ratified conventions in Australian domestic law is still part of the common law of Australia. In the High Court decision in Plaintiff S 10/2011 v Minister for Immigration and Citizenship, [2012] HCA 31 at paragraph 65, Gummow, Hayne, Crennan and Bell JJ stated ‘the phrase “legitimate expectations” when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded’.
[52] Inna Grabowsky v. UPA NSW[2019] FWCFB 1964 [26].
[53] PR792672.
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