Pearce v St John of God Health Care Inc

In *Pearce v St John of God Health Care Inc*, the applicant, Vanessa Louise Pearce, brought a claim against her employer, St John of God Health Care Inc, alleging adverse action in the form of dismissal due to exercising a workplace right to make a complaint. The matter was initially dismissed by the Federal Circuit Court of Australia due to the applicant's non-appearance and failure to serve the respondent. The applicant subsequently sought to have these dismissal orders set aside and requested an extension of time to file her general protections application.

The Court was required to determine two primary legal issues: firstly, whether the orders dismissing the proceeding on 7 May 2019 should be set aside, and secondly, whether an extension of time should be granted for the applicant to file her general protections application under section 370 of the *Fair Work Act 2009* (Cth). The respondent contended that the applicant had not provided a sufficient explanation for her non-attendance, that she had been adequately notified of the hearing, and that there was no arguable case or utility in granting an extension of time.

Judge Kendall reasoned that while the applicant's explanation for her non-attendance was "less than satisfactory," it was not a significant factor against setting aside the orders, particularly given the short delay in seeking reinstatement and her active pursuit of legal assistance. The Court found that the applicant's confusion regarding the hearing date, stemming from the discrepancy between the application and the Form 2, warranted some weight. Furthermore, the respondent asserted no specific prejudice from reinstatement, and the Court considered the merits of the extension application, noting the minimal delay, the applicant's lack of legal representation as a reason for delay, and the respondent's burden to rebut the presumption of adverse action under section 361 of the *Fair Work Act*. The Court concluded that it could not be said there was no utility in setting aside the orders and entertaining the extension application.

Consequently, the Court ordered that the dismissal orders of 7 May 2019 be set aside and granted an extension of time for the applicant to file her general protections court application to the date of actual filing. The matter was then referred to mediation before a Registrar, with a further directions hearing to be scheduled if mediation did not resolve the dispute. Costs were reserved.