Shiralee Dollar v RG Group Holdings Pty Ltd

[2025] FWCFB 122

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Shiralee Dollar

RG Group Holdings Pty Ltd

(C2024/5967)

VICE PRESIDENT ASBURY
DEPUTY PRESIDENT CROSS	BRISBANE, 20 JUNE 2025
DEPUTY PRESIDENT EASTON

Appeal against decision [2024] FWC 2134 of Commissioner P Ryan at Sydney on 12 August 2024 in matter U2024/7062 – Section 394(3) – Decision refusing further period to make unfair dismissal application – Permission granted in respect of ground of appeal concerning prejudice caused by the delay – Approach to considering merit in cases where further period to lodge application is sought – Approach to considering prejudice in cases where further period to lodge application is sought – Whether presumptive prejudice is relevant to the exercise of discretion by the Commission to grant a further period under s. 394(3) – Exercise of discretion to grant a further period where exceptional circumstances found – No error in the Commissioner’s approach – Appeal dismissed.

Background

Ms Shiralee Dollar (the Appellant) applies for permission to appeal and appeals a Decision of Commissioner P Ryan issued on 12 August 2024[1] (Decision) and Order,[2] in which he refused to grant a further period for the Appellant to make an application for an unfair dismissal remedy and dismissed that application, on the basis that the Commissioner was not satisfied that there were exceptional circumstances to warrant the exercise of the discretion under s 394(3) of the Fair Work Act 2009 (FW Act) to extend the standard 21 day time limit in s. 394(2).

RG Group Holdings Pty Ltd (Respondent) applied for permission to be represented by a lawyer in the appeal and requested that the appeal be heard by video link or on the papers. The Appellant, through her legal representative, agreed that a hearing on the papers was in the best interests of the parties. Permission was granted for both parties to be legally represented based on our satisfaction that the matter involved issues of complexity and legal representation would allow it to be dealt with more efficiently. We also decided that it was appropriate that the matter be dealt with on the papers. Directions were issued and the parties made submissions in accordance with them.
The following matters are not in dispute. The Appellant commenced working as the general manager at the Coonamble Motel (Motel) on 5 May 2017 for the previous owner, which appears to have been a partnership between M K Leong and B K Tan (Partnership). There was no written contract between the Appellant and the Partnership or either of the partners. On 31 August 2023, the Respondent purchased the Motel from the Partnership and commenced operating the Motel on 21 September 2023.[3] On or about 21 September 2023, the Appellant and Ms Ranjana Malik (on behalf of the Respondent), entered into a handwritten agreement by which the Appellant was engaged to manage the Motel commencing on that date. The nature of the engagement does not appear on the face of the agreement. The Appellant contends that it was a contract of employment, and the Respondent contends that the Appellant was engaged as an independent contractor.

It does not appear to have been in dispute that the Appellant had the right to reside on the Motel premises. Whether the Appellant did reside on the premises was in dispute. The Appellant undertook the manager role until 17 February 2024 when she was notified that her contract was terminated with immediate effect. Regardless of the nature of the engagement, there is no dispute that it ended on 17 February 2024. On 19 June 2024, 101 days outside the time required in s. 394(2) the Appellant lodged a Form F2 Application, seeking that the Commission grant a remedy for unfair dismissal. Section 394(2) of the Act provides that such an application must be made within 21 days of a dismissal taking effect, or within such further period as the Commission allows under s. 394(3). The 21-day period for making the application expired at midnight on 9 March 2024 and the application was made 101 days outside the time required by s. 394(2) of the FW Act.

The Respondent, through its representative Mr Jean-Pierre Chaina, filed a Form F3 Response on 3 July 2024, objecting to the application on the grounds that it was made outside the time allowed by s. 394(2) of the FW Act, the Appellant was not an employee, and her employment did not meet the minimum employment period. The matter was allocated to the Commissioner, who correctly decided to deal with the question of whether a further period should be granted under s. 394(3), before dealing with the objections in relation to whether the Appellant was an employee, and if so, whether her employment met the minimum employment period. Section 394(3) of the Act provides as follows:

“(3) [Extended time limit]
The FWC may allow a further period for the application to be made by a person
under subsection (1) if the FWC is satisfied that there are exceptional circumstances,
taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”

The Decision

The Commissioner began by setting out the relevant background and evidence. The handwritten agreement between the Appellant and Ms Malik was in the following terms and was signed and initialled by both parties:

‘We agree the yearly payment of $110,000 including GST to manage Coonamble Motel.
This is only a temporary agreement until we have all the terms and conditions agreed
upon. [signature]
The start date is 21/09/2023 & first payment will be from 21/09/2023 till 24/09/2023
(inclusive). This will be paid on 26/09/2023. [Initials][4]

On 17 February 2024, Ms Malik met with the Appellant and informed her that the contract to manage the Motel was terminated with immediate effect and that the Respondent would be engaging a related entity to manage the Motel. The Appellant received a payment of two weeks’ pay and was directed to immediately vacate the premises. As a result, the Appellant could no longer live on-site at the Motel, noting that whether the Appellant did live on site was in dispute.

The Commissioner summarised the Appellant’s evidence that the circumstances of her working arrangement and eviction from her living quarters triggered a pre-existing anxiety condition. The Appellant sought assistance from a counsellor but was unable to obtain an appointment until 6 May 2024. The Appellant said that although the termination of her working arrangement caused her to be perturbed and anxious, she had no choice but to prioritise searching for new employment.

The Commissioner noted the Appellant’s evidence that on or about 11 March 2024, she telephoned ‘Fair Work Australia’ and was informed that she was an independent contractor and did not have any ‘right of redress’. The Appellant stated that she was also informed of the 21-day time limit for making an unfair dismissal application but was led to believe that she was not eligible to make a claim. On 6 May 2024 and 3 June 2024, the Appellant attended appointments with a counsellor at the Coonamble Aboriginal Health Service and on or around 20 May 2024, engaged legal representation.

The Appellant also stated in her evidence that commencing on or around 26 May 2024, she provided assistance to a number of her family members (including her daughter) who had suffered medical episodes, required surgery or had contracted a serious illness, involving the Appellant transporting those family members to and from medical appointments, providing care and looking after her grandchildren, which diverted her from making an application.

The Commissioner commenced his consideration of whether the Appellant could and should be granted a further period to make the application, by setting out the principles relevant to the identification of exceptional circumstances for the purposes of s. 394(3) of the FW Act.[5] Those principles are well established, stated in numerous decisions of the Commission at first instance and on appeal, and it is not necessary that we repeat them.[6] Consistent with those principles, the Commissioner further characterised the test of exceptional circumstances as a high hurdle for the Appellant to overcome,[7] and set out the approach to considering the explanation for the delay provided by a person seeking a further period.[8]

In her Form F2 Application, and in her evidence to the Commission, the Appellant asserted four reasons for the delay in lodging the application: shock, distress and anxiety resulting from the termination of employment and loss of her residence; lack of knowledge and incorrect advice provided by the Commission; lack of income and being unable to afford legal advice or representation; and obligations to care for and support sick and injured family members.

In relation to the first reason for the delay, after considering authorities relevant to medical incapacity in the context of an application for an extension of time,[9] the Commissioner observed that they clearly establish there should be compelling medical evidence showing that a medical condition had a material impact upon an applicant’s capacity to make an application within the statutory time limit to be considered an acceptable reason for delay, and that an applicant’s self-assessment of alleged psychological incapacity is unlikely to be sufficient.

Turning to the evidence before him, the Commissioner found that a letter provided by Coonamble Aboriginal Health Service, tendered by the Appellant, was a submission in support of her case rather than compelling medical evidence concerning whether the Appellant had a medical condition or incapacity which had a material impact on her capacity to make the Application within the statutory timeframe. The Commissioner stated that even if the letter was accepted as evidence that the Appellant was suffering from a medical condition, he would not be required to conclude, based on that evidence, that the Appellant was rendered incapable of filing her application.

In addition, the Commissioner considered that the Appellant’s evidence indicated she had proactively sought out new employment including undertaking a training course, and the evidence of the Appellant’s daughter, that the Appellant was able to continue to perform her daily activities The Commissioner was not satisfied that there was sufficient evidence to establish that shock, distress and anxiety resulting from the loss of employment and residence was an acceptable or reasonable explanation for the delay.

Regarding the second reason for the delay, the Commissioner found that incorrect advice was not provided by the Commission as the Commission does not provide legal or industrial advice and no recording of the Commission providing advice to the Appellant could be located within the range of dates advised by the Appellant. The Commissioner also observed that a lack of understanding of the law is generally not accepted as a reasonable explanation for delay in filing an application and it is well established that ignorance of unfair dismissal laws does not support a finding of exceptional circumstances.

In considering the third reason, the Commissioner found that the Appellant’s lack of income and inability to afford legal advice or representation was not a reasonable explanation for the delay, due to the availability of resources accessible through the Commission’s website, including information on pro-bono services.[10]

Turning to the fourth reason for the delay, the Commissioner found that the Appellant had not provided enough evidence to support a finding that caring duties prevented her from making an application within the statutory timeframe. The Commissioner also noted that many of the events referred to by the Appellant occurred outside the statutory timeframe.

The Commissioner concluded in relation to s. 394(3)(a) that there was no reasonable explanation for the delay when the reasons advanced by the Appellant were considered individually or collectively, and that this weighed against a finding of exceptional circumstances. The Commissioner also found that there was no dispute as to when the alleged employment ended (s. 394(3)(b)), and the Appellant had not put the Respondent on notice that she disputed the dismissal (s. 394(3)(c)). These factors were considered by the Commissioner to weigh against a conclusion that there were exceptional circumstances justifying the grant of a further period for the Appellant to make the application.

The Commissioner commenced his consideration of prejudice (s.394(3)(d)), by stating that: ‘It is well accepted that a lengthy delay gives rise to a general presumption of prejudice’, citing the decision of the High Court in Brisbane South Regional Health Authority v Taylor[11] (Brisbane South v Taylor) and a decision of a Full Bench of the Commission in GHD Pty Ltd T/A GHD v Kevin Alan Black[12] (GHD) which cited Brisbane South v Taylor as authority for that proposition. The Commissioner observed that: relevant prejudice is prejudice that the Respondent would not have suffered had the application been made within 21 days of the dismissal taking effect; the resolution of the present case would include findings about whose version of events is preferred in relation to discussions that took place around 21 September 2023 and on 17 February 2024; in the context of an unfair dismissal application, a delay of 100 days is significant; and a lengthy delay may impair the recollection of participants in conversations, giving rise to relevant prejudice. The Commissioner concluded that this matter weighed against a finding of exceptional circumstances.[13]

Considering the merits of the application (s. 394(3)(e)), the Commissioner found that whether the applicant had prospects of success would be dependent on contested facts and it was not possible to make a detailed assessment of the merits. The Commissioner noted as an example of the contested facts, that the Appellant’s evidence as to the nature of her engagement with the former operator of the Motel is scant and at odds with the contract for the sale of the business, and if it was found that the Appellant was engaged by the former operator as an independent contractor rather than as an employee, she could not have completed a period of employment of at least the minimum employment period with the Respondent. Notwithstanding these observations, the Commissioner concluded merit was a neutral consideration The Commissioner noted that neither party made any submissions regarding fairness between the person and other persons in a similar position (s. 394(3)(f)).

After considering the matters in s. 394(3) the Commissioner was not satisfied that there were exceptional circumstances when those matters and the evidence of the Appellant in relation to them, were considered either individually or collectively. The Commissioner concluded that there was no basis to allow an extension of time and issued an Order dismissing the application.[14]

Grounds of appeal and submissions

The Appellant’s Notice of appeal sets out three grounds. The first ground of appeal contends that the Commissioner gave insufficient or no weight to the merits of the application and that the Appellant had good prospects of success at a substantive hearing. The Appellant identified two factors said to show strong prospects of success: that there was no evidence of a valid reason for dismissal and that there was unchallenged evidence that the manner of the dismissal was harsh unjust and unreasonable. The Appellant submitted that the Commissioner had failed to make an analysis of the facts which indicated that she had been employed at the Motel for 7 years and the relationship was consistent with the indicia of employment outlined in Hollis v Vabu,[15] thereby establishing a presumption the Appellant was an employee of the Respondent.

The Appellant also submitted that the Commissioner wrongly gave weight to the sale of the Motel in 2023 by noting that the contract for sale did not refer to employees and contended that a ‘bipartite agreement’ should not be used to determine the Appellant’s employment status. Further, it was submitted that the Appellant ‘gave weight’ to a presumption of continuing employment on the basis that she lived on the site, had no other employment, was subject to the direction of the Respondent, and had not been served with a notice under s. 384 of the FW Act in relation to the period of service with the old employer not being recognised by the new employer.

The second ground of appeal is that the Respondent did not challenge the way the ‘dismissal’ was carried out – verbally and without notice – and the Commissioner gave no, or insufficient weight, to the exceptional circumstances of the Appellant’s immediate eviction, and that these matters impeded her from seeking redress. It was also submitted that the Commissioner failed to consider that the Appellant was ‘relatively unsophisticated’, had little access to support in Coonamble, and took some time to ascertain her rights.

The third ground of appeal is that the Commissioner gave no or insufficient weight to the lack of evidence of prejudice to the Respondent caused by the delay. In her submissions in the appeal, the Appellant said in relation to ground 3 that:

‘Importantly there was no evidence of any actual prejudice suffered by the respondent in respect of the delay. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 McHugh J identified four reasons at common law for the imposition of a limitation period. Indeed the Fair Work Act imposes its own criteria of “exceptional circumstances” (s394(3)).
The criteria raised by McHugh J can be addressed as follows. In the context of the time limits being considered in the Brisbane South case there is almost no possibility of presumptive prejudice arising in the present case. The facts and circumstances of the dismissal appear to be little in dispute. What is not in dispute is that the respondent raises no actual prejudice and the failure to give this cognisance by the Member is an error of law that takes it outside the principles in House v The King (1936) 55 CLR 499 at 504. It is submitted that where the appellant is effectively starved of resources and that disability is exacerbated by the conduct of the respondent, permission should be granted to allow the appeal to progress. The error for which the appellant contends in the original decision if made out is egregious whilst the respondent would appear to suffer no prejudice in allowing the appeal to proceed. In these circumstances it must be in the interests of justice to allow an appellant with a genuine grievance to have their day in Court.’

In reply submissions, the Appellant said in relation to ground 3 that:

‘It is unlikely that any prejudice, actual or presumptive, will be raised in the initial 28 days [sic]. However, where an extension is sought and the applicant seeks an extension of time as in the present case, the issue arises as to how the Court applies the “exceptional circumstances” prescribed by section 394(3) where the applicant can show no more than presumptive prejudice. This is not dealt with by the extensive authorities and thus it is in the public interest for this matter to be resolved: see the analysis by Beazley JA in Sauer v Allianz Australia Insurance Limited [2006] NSWCA 364.
Put simply, in weighing the matters prescribed by section 394 what, if any weight, should be given by the Commissioner to presumptive prejudice where that is the only prejudice the respondent can demonstrate. This is the question that is in the interest of the public to resolve.’ (emphasis added)’

Regarding the first ground of appeal, the Respondent contended that there is no dispute that the Commissioner was required to consider the merits of the Application, the approach taken was orthodox and the appeal ground should be rejected. According to the Respondent, the issue of whether the Appellant was an employee had been addressed and disputed by both parties in the Appellant’s statement in reply and the statement of Ranjana Malik, and that as neither witness was cross-examined in the hearing, the conflicting evidence had not been tested, and it is usual that the Commission would not embark on a detailed analysis of facts in determining whether to grant a further period to make the application.

The Respondent also disputed the Appellant’s submission that it was not appropriate for the Commissioner to consider the contract for the sale of business. The Respondent submitted that the nature of the engagement with the previous owners of the Motel was a live issue as the evidence of employment was limited and there was no documentation that would usually be produced to evidence an employment relationship. In this regard the Respondent submitted that a sale of business contract would ordinarily contain provisions about the transfer of employees. Due to the contested points of fact, the Commissioner taking a neutral standpoint in considering the merits of the Application was consistent with established practice,[16] and the appeal ground should be rejected.

Regarding the second ground of appeal, the Respondent submitted that the Commissioner summarised the Appellant’s reasons for delay including distress and anxiety resulting from the termination of her working arrangement and the loss of her place of residence. The Commissioner also considered the relevant authorities which in essence establish that the onus fell on the Appellant to prove the nature of any mental health condition she suffered and to establish a causal connection between the condition and the delay. Further, the Respondent submitted that the Appellant had not explained the entire period of the delay. In this regard, the Appellant’s daughter stated that the Appellant engaged her solicitors on or around 20 May 2024 and the application was not filed until 19 June. This delay, in itself greater than 21 days, was never explained.

The Respondent also submitted that no point of appeal is taken that the Commissioner failed to act on the correct principles or as to whether the Commissioner correctly applied the facts to the principles. Regarding the third ground of appeal, the Respondent submitted that a lack of evidence of actual prejudice does not lead to a presumption of no prejudice. In relation to this proposition, the Respondent referred to Brisbane South v Taylor and Prince Alfred College Inc v ADC[17] (Prince Alfred College) as authority for the proposition that: ‘prejudice may exist without the parties or anyone else realising that it exists’. In this regard, the Respondent’s case relies on firsthand accounts of events which occurred on 21 September 2023 and 17 February 2024 and not solely on jurisdictional objections. Accordingly, there was there was no error in the approach by the Commissioner and the third ground of appeal should be rejected.

Permission to Appeal

An appeal under s. 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[18] There is no right to appeal, and an appeal may only be made with the permission of the Commission.

This appeal is one to which s. 400 of the FW Act applies. Section 400 provides:

“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”

The test under s. 400 has been characterised as ‘stringent’.[19] A decision as to whether it is in the public interest to grant permission to appeal is discretionary and involves a broad value judgment.[20] Considerations that may attract the public interest include that a matter raises issues of importance and general application, there is a diversity of decisions at first instance so that guidance at appellate level is required, the decision at first instance manifests an injustice, the result is counter intuitive, or legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[21] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[22] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[23]

In relation to extensions of time to lodge applications under s. 394(3) of the FW Act, the test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension.[24] Further, a decision as to whether to extend time under s. 394(3) involves the exercise of a broad discretion[25] where no one consideration or combination, is necessarily determinative of the result, and the decision maker is allowed some latitude in the decision to be made.[26] In deciding an appeal against a discretionary decision, it is not open to an appeal bench to substitute its view on the matters determined by the Member at first instance, in the absence of appealable error. It is necessary in an application for permission to appeal against a decision made under s. 394(3), for the Appellant to identify an error of the kind described in House v The King[27]: that the decision-maker has acted on a wrong principle, mistaken the facts, taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust.

Additionally, because s. 393(4) is in Part 3 – 2 of the FW Act, an appeal against a decision in relation to whether to extend time attracts the operation of s. 400(2). Accordingly, where the Appellant asserts an error of fact, the error must be significant. To be characterised as ‘significant’, a factual error is one that that vitiates the ultimate exercise of the discretion or is foundational to the Member’s conclusion.[28]

For the reasons that follow, we do not consider that appeal grounds 1 and 2 warrant permission to appeal being granted. There is no error in the approach or the conclusion of the Commissioner in relation to these grounds and we reject those grounds. Ground 3 is a different matter. We are satisfied that ground 3 raises a novel issue concerning the approach to considering prejudice for the purposes of s. 394(3)(d) of the FW Act. Accordingly, we have decided to grant permission to appeal in relation to ground 3. However, after considering the matters raised in relation to ground 3, we find that the Commissioner did not err in the manner contended by the Appellant, or in the approach he took to considering prejudice to the Respondent, and for reasons that follow, we also reject ground 3.

Consideration

Merits

Appeal ground 1

Appeal ground 1 focuses on the way the Commissioner assessed the merits of the Appellant’s application for the purpose of s. 394(3)(d). We do not accept that the Commissioner erred in the manner contended by the Appellant. It is well established that the Commission should not embark upon a detailed consideration of the merits of the substantive case in determining whether to grant an extension of time.[29] This is particularly so where the matter involves disputed facts. There are legislative and policy reasons for this approach. The legislative support for this approach is that firstly, an application for an unfair dismissal remedy made outside the 21-day limitation period prescribed by s. 394(2) is not validly made unless and until a further period to make the application is granted pursuant to s. 394(3).[30] While there may be cases where it is necessary to assume that an applicant is an employee for the purposes of determining whether an application for an unfair dismissal remedy is made outside the required time, and if necessary, whether a further period should be granted for the application to be made,[31] this was not such a case. As we have noted, there was no dispute as to when the relationship between the Appellant and the Respondent ended and the Commissioner properly decided the question of whether a further period should be granted without any requirement to consider whether the Appellant was an employee of the Respondent. Secondly, s. 396(a) makes clear that the Commission must decide whether a further period should be allowed under s. 394(3), before considering the merits of the application.[32]

In relation to policy reasons, Full Benches of the Commission have emphasised that while the FW Act requires the Commission to take into account the merits of an application in deciding whether to grant a further period, the substantial merits are not able to be fully examined or agitated at this stage of the proceeding.[33] It has also been observed that it would be undesirable to expose the parties to a requirement to present their evidentiary cases twice, which would occur if the Commission embarked on a detailed consideration of the substantive case in relation to an extension of time application. In overturning a finding that an applicant’s case lacked merit, in a decision dealing with an extension of time, a Full Bench of the Commission in Kyvelos v Champion Socks Pty Ltd[34] said that if the finding was allowed to stand, it would serve as an encouragement to other applicants for late acceptance to put their entire evidentiary case and seek to cross-examine the respondent’s witnesses to reduce the possibility of an adverse finding on the merits. This was said to be likely to lead to an unjustifiable delay and expense.[35]

Consistent with this principle, the Commissioner’s consideration of merits correctly noted that the Appellant’s prospects of success at final hearing would depend on the determination in her favour of contested facts. The Respondent had objected to the application on the grounds that it did not employ the Applicant and did not know that the Applicant was an employee of the former owners of the Motel. The Respondent provided evidence supporting the contention that the appellant was not employed by the former owners of the motel and purported to put the Appellant to proof in relation to that matter, contending that even if the Commission found that the Appellant was employed by the present owners, if she was not also employed by the former owners, the Appellant’s period of employment would have been less than the minimum employment period. The Commissioner was correct to consider that these matters were contested and would require determination before it could be found that the Appellant was an employee who had served the minimum employment period in s. 383 and was protected from unfair dismissal.

Contrary to the Appellant’s submission, the Commissioner was not required to undertake a detailed analysis of the arrangements under which the Appellant performed work for the Respondent or determine whether it was an employment relationship. This would not have been a straightforward exercise given the dearth of written evidence about the contract and its terms. In addition to the witness statement and evidence given by the Appellant at the hearing, the documentary evidence consisted of a handwritten document and a series of records evidencing transfers from the owner of the Respondent Ms Malik, designated as ‘Fast Transfer from Ranjana Malik Shiralee Payment for Coonamble’ to the Appellant’s bank account. Ms Malik also tendered evidence that the Appellant had supplied her with an ABN, the contract was exclusive of GST and no monies were withheld on account of PAYG tax.

If the Commissioner had undertaken such an analysis, it would not have determined the matter. The Commissioner would also have been required to consider the prospects of finding that the Appellant was employed by the previous owner of the Motel. The evidence before the Commissioner about the nature of that relationship is similarly limited. It consisted of a Letter of Recommendation for the Appellant signed by Mr Kevin Leong, which confirms that the Appellant was the General Manager of the Motel and does not state whether the Appellant undertook this role as an employee or an independent contractor. The Respondent, through Ms Malik, tendered a contract for the sale of the business in which Mr Leong declared that there were no employees at the time of the sale.

There is no error in the Commissioner’s observation that the contract for the sale of the Motel did not refer to employees and nor was it an error that the Commissioner did not give weight to the Appellant’s presumption of continuing employment because she lived on site and had not been served with a notice under s. 384 of the Act. While the Appellant may have assumed that she had ongoing employment because she was not served with a notice under s. 384 of the Act at the time her engagement with the Respondent commenced, it is equally probable that Ms Malik did not provide that notice because she believed that the Appellant was a contractor, and such notice was neither relevant nor required. It is also probable that the Appellant was not aware of s. 384 of the Act, or the implications of not being given a notice under that section by the Respondent, at the time she commenced her employment.

In this regard, the assertion of reliance on not being given a notice under s. 384 was made in oral submissions by the Appellant’s lawyer at the first instance hearing. The assertion is not made in either of the witness statements made by the Appellant (received into evidence without objection) and nor was it made in the Form F2 Application filed on the Appellant’s behalf. While the Appellant may have been aware that she had not been given a notice under s. 384 of the Act, it is equally likely that the Appellant was not aware of s. 384 of the Act or the significance of a notice under that section. Similarly, the fact that the Appellant sought an employment separation certificate after the ending of the relationship with the Respondent, is not determinative of whether she was an employee. On the evidence before the Commissioner, the Appellant’s assertion that she was an employee of the Respondent and had continuing employment after the sale of the Motel, could not have properly been attributed greater weight than the weight given to the Respondent’s assertion that the relationship was that of principal and contractor.

We reject the Appellant’s assertion that the Commissioner used a bipartite agreement to determine the nature of the Appellant’s engagement. Other than noting that the evidence as to the nature of the Appellant’s contract with the Respondent was scant, and at odds with the information in the contract for the sale of the business, the Commissioner made no determination either way and concluded that the merits of the Appellant’s case were a neutral consideration about which it was not possible to make a firm and detailed assessment. The Appellant has not pointed to any factual error on the part of the Commissioner in reaching this conclusion, nor identified any relevant matter the Commissioner failed to have regard to, nor any irrelevant matter that was considered. The approach taken by the Commissioner was orthodox and the conclusion was open to him.

On one view the Commissioner’s conclusion that merit was a neutral matter, was generous to the Appellant, considering the Respondent’s evidence, including the contract for the sale of the Motel, the payments made to the Appellant, the fact that she had her own ABN and the difficulties her application faced in relation to establishing whether she had served the minimum employment period. We reject appeal ground 1.

Appeal ground 2

The second ground of appeal also concerns merits and asserts that the Respondent did not challenge the Appellant’s evidence about the way the ‘dismissal’ was carried out and that on this basis merits should have weighed in favour of a finding of exceptional circumstances. The short answer to this ground of appeal is that the Respondent took issue with the assertion that the Appellant was dismissed and contended that the Appellant’s contract to manage the Motel had been terminated. In circumstances where the Respondent has at all times asserted that the Appellant was not an employee and was not dismissed, it is unsurprising that it did not engage extensively with the Appellant’s contention that her dismissal was unfair, including on the ground that it was harsh. The Respondent’s lack of engagement with the Appellant’s assertions in relation to the harshness and unfairness of the alleged dismissal does not strengthen the merits of her case, and we reject appeal ground 2.

Prejudice

Appeal ground 3

By ground 3, the Appellant asserts that the Commissioner erred by applying a notion of presumptive prejudice articulated in the judgement of McHugh J in the High Court decision in Brisbane South v Taylor, to the effect that any delay in making an unfair dismissal application beyond a statutory limit, must be considered as prejudicial to the respondent, even in cases where the respondent does not establish that it suffered actual prejudice caused by the delay. The Appellant submits that presumptive prejudice could not arise in the context of the short time limit in s. 394(2) of the FW Act, and that the absence of actual prejudice to the Respondent because of the delay should have weighed in favour of a finding exceptional circumstances.

This ground was also said to provide the foundation for permission to appeal, based on an assertion that the failure of the Commissioner to have proper regard for the absence of prejudice to the employer is an ‘egregious’ error which takes the matter outside the principles in House v The King.[36] The Appellant’s argument centres on paragraph [61] of the decision, where the Commissioner commenced his consideration of the matter in s. 394(3)(d) by stating that: ‘It is well accepted that a lengthy delay gives rise to a general presumption of prejudice’. As we have noted, the authority for this proposition cited by the Commissioner is the judgement of McHugh J in Brisbane South v Taylor, cited by a Full Bench of the Commission in GHD. To deal with this appeal ground, it is necessary to briefly examine Brisbane South v Taylor and some of the cases relating to the concept of presumed prejudice referred to by the parties in their appeal submissions.

Case law relevant to the presumption of prejudice

Brisbane South v Taylor concerned the approach to the exercise of discretion under the Limitation of Actions Act 1974 (Qld) in relation to an application for an extension of time to bring an action for damages for negligence or breach of duty, in respect of personal injury. The limitation period was three years from the date on which the cause of action arose. The court had discretion to extend the time for making a claim if it appeared that: (a) a material fact of a decisive character relating to the right of action was not within the means of knowledge of the plaintiff until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and (b) there is evidence to establish the right of action apart from a defence founded on the expiration of the period of limitation. The plaintiff sought to bring her action 15 years after the expiry of the 3-year limitation. The issues for determination were whether the discretion to extend time should be automatically exercised in the plaintiff’s favour if the statutory preconditions were met, and whether the plaintiff or the defendant bore the onus of establishing that the discretion should be exercised. A majority of the High Court[37] (albeit in separate judgments) held that the legislative provisions concerning the discretion to extend time do not involve a weighing process between the potential prejudice to the plaintiff and a prospective defendant, and thata plaintiff for an extension of time:

does not have a presumptive right to an order once the conditions specified in the relevant provision are satisfied; and
bears the legal onus of showing that the justice of the case requires the discretion to be exercised favourably and must prove that an extension beyond the limitation period would not result in significant prejudice to the prospective defendant.

Toohey and Gummow JJ held that there is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion to extend time, but the ultimate onus of satisfying the court that time should be extended remains on the plaintiff.[38] In this regard their Honours said that the discretion conferred by the legislative provision is a discretion to grant [an extension], not a discretion to refuse.[39] McHugh J said that the discretion to extend should be seen as requiring the plaintiff to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation in question. His Honour also said that a plaintiff seeking an extension of time to commence an action after a limitation period has expired, has the positive burden of demonstrating that the justice of the case requires that extension.[40] In relation to the pre-conditions for the exercise of the discretion to extend time, McHugh J said that the fact the plaintiff has a good cause of action and was unaware of a material fact of the relevant character, enliven the exercise of the jurisdiction but do not compel its exercise in the plaintiff’s favour, and does not alter the burden on the plaintiff to show that the justice of the case favours the grant of an extension of time. His Honour also said that the justice of the plaintiff’s complaint is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant, who by reason of delay in commencing an action, is unlikely to be able to defend itself or is otherwise prejudiced and is not guilty of fraud, deception, or concealment in respect of the existence of the action.[41]
McHugh J went on to distinguish presumptive prejudice from actual prejudice stating that:

‘Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff’s right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action.’ [42]

McHugh J also identified rationales for limitation periods which can be summarised as follows. Firstly, delay results in the deterioration of the quality of justice as relevant evidence may be lost. In some cases, the deterioration is palpable and in others, it may not be recognised by the parties.[43] Secondly, it is oppressive to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly businesses and persons should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Fourthly, businesses and persons have a significant interest in knowing that they have no liabilities beyond a certain period.[44]

Toohey and Gummow JJ expressed difficulty with what they described as a notion of weighing prejudice to the plaintiff against prejudice to the respondent. In this regard their Honours said that in one obvious sense the prejudice to the plaintiff was absolute if her application for an extension of time was refused, as she could never litigate her claim. They concluded that this could not be enough, of itself, to warrant an extension of time as in truth, there would be no discretion to be exercised if that approach was taken.[45]

The judgements in Brisbane South v Taylor also indicate that when a claim is filed outside a limitation period, the entire period between when the cause of action arose and the application was made may be relevant to considering prejudice to the defendant. In this regard, Toohey and Gummow JJ said in their joint judgement that it is erroneous to approach the question of prejudice by reference to the theoretical situation of an action commenced two-and-a-half years after the cause of action arose (towards the end of the limitation period). Their Honours said that a material consideration is whether, by reason of the time that has elapsed, a fair trial is possible. The question of whether prejudice will thwart a fair trial is answered by reference to the situation at the time of the application, rather than a hypothetical situation prior to the expiration of the limitation. Their Honours also said that it is no sufficient answer to a claim of prejudice to say that, in any event, the defendant may have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period expired.[46]

McHugh J said that comparing a claim made just within the limitation period, and a claim made just outside the limitation period treats the time limit as little more than a reference point and erroneously implies that that all that is ordinarily relevant is the marginal prejudice created by the delay.[47] McHugh J also pointed out that if the action in Brisbane South v Taylor had been brought within time (three years from the cause of action arising), the prejudice to the defendant because of a key witness not being available, or having a limited recollection of events, would have been irrelevant. It was only once the limitation period had passed that the capacity of the defendant to obtain a fair trial, if an extension of time was granted, was relevant and important.[48]

The Appellant in the present case contends that the Full Bench should grant permission to appeal because the Commissioner erred by applying a presumption of prejudice for the purpose of determining whether there were exceptional circumstances and that it is in the public interest to resolve how the Commission assesses prejudice for that purpose, where the Respondent has shown no more than ‘presumptive prejudice’ or has not established actual prejudice caused by a delay in making an application. The Appellant also contends that this question is not dealt with by the extensive authorities and it is in the public interest for it to be resolved. In support of this contention the Appellant cites the analysis by Beazley JA in Sauer v Allianz Australia Insurance Limited[49] (Sauer).

Sauer concerned a claim for personal injury arising from vehicle accident, brought outside a statutory limitation period in the Motor Accidents Compensation Act 1999 (NSW) (MAC Act), which provided that a claimant is not entitled to commence proceedings in respect of a claim more than 3 years after the date of the accident to which the claim relates, except with leave of the court in which the proceedings are to be taken. After extensively analysing Brisbane South v Taylor and the impact of that decision on cases decided under the MAC Act both before and after the decision, the NSW Court of Appeal held by reference to Brisbane South v Taylor, that:

A plaintiff seeking an extension of time must satisfy the court that grounds exist for exercising discretion in his or her favour.
The evidentiary onus is on a prospective defendant to raise any consideration which might tell against the exercise of the discretion.
The ultimate onus of establishing that the time should be extended at all times remains with the plaintiff.
The delay resulting from commencing proceedings after a limitation period has expired gives rise to a presumption of prejudice to the potential defendant. If the effect of granting the extension would result in actual significant prejudice to the potential defendant, then the application for an extension should be refused.

The Court also held, consistent with a previous decision relating to the MAC Act, that in the absence of significant prejudice there may be no good reason to refuse an applicant leave to commence proceedings. However, it is important to note that this conclusion was reached in the context of the unusual facts in Sauer which included that the driver against whom the claim was to be made, was killed in the accident in which the claimant’s injury occurred. It was critical to the Court’s decision that the test under s 109 of the MAC Act relates to prejudice caused by the delay, although other prejudice may be relevant. [50] It was also significant that the respondent (the insurer) did not demonstrate actual prejudice and conceded that it relied on presumed prejudice.[51] The Court concluded that the delay itself did not cause prejudice, as the source of the prejudice was the inability of the respondent to call evidence from the deceased driver. That prejudice existed from the outset and the same prejudice would have been suffered by the Respondent if the application was made within time.[52]

Contrary to the Appellant’s submissions, Sauer did not alter the approach to considering prejudice in the context of extensions of limitation periods set out in Brisbane South v Taylor and nor did it illuminate uncertainty about the weight to be given to presumptive prejudice where that is the only relevant prejudice. For reasons we will now turn to, presumptive prejudice has little relevance in relation to whether a further period to make an application for an unfair dismissal remedy should be granted under s. 394(3), and analogously, applications for a further period to be granted for making an application for the Commission to deal with a general protections dispute involving dismissal.

Extension of time – decision making process

Sections 394(3) and 366(2) of the FW Act are in substantively the same terms and the approach to deciding whether to exercise the discretion to extend time is common to both. Previous provisions were in similar terms. Those sections are framed differently from the provisions relating to the court’s discretion to extend time. The court applies principles established in Brodie-Hanns v MTV Publishing Ltd [53] to exercise what has been referred to as a broad textured discretion, to determine whether it is fair and just to extend time under s. 370. The Commission is required to take similar matters to those in the Brodie-Hanns principles into account to decide whether there are exceptional circumstances under s. 394(3). The process of decision-making under s. 394(3) has two distinct elements, both discretionary in nature. Firstly, the Commission must determine whether a state of satisfaction can be reached as to the existence of exceptional circumstances, taking into account the matters specified in paragraphs (a) – (f) of the subsection. Secondly, if the Commission is satisfied as to the existence of exceptional circumstances, the residual discretion to extend time (signified by the use of the word ‘may’) is enlivened.[54] Satisfaction as to the existence of exceptional circumstances does not necessarily mean that an extension of time will be granted,[55] and the Commission may decide not to exercise the residual discretion to extend time on the basis that it is not satisfied that it is just, fair or equitable to do so, notwithstanding the finding of exceptional circumstances.

The nature of the decision-making exercise in relation to an extension of time pursuant to s. 394(3) has been described as a test involving both a broad discretion and a high hurdle of exceptional circumstances.[56] In relation to the first part of the decision-making process, the Commission may be satisfied that the circumstances are exceptional if they are out of the ordinary course, unusual, special or uncommon.[57] In deciding whether there are exceptional circumstances the Commission must take into account each of the matters specified in s.394(3)(a) to (f), insofar as those matters arise in a particular case. To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account.[58]

The approach to assessing whether exceptional circumstances exist was described by a Full Bench of the Commission in Stogiannides v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[59] (Stogiannides), as follows:

[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

The Commission is satisfied that there are exceptional circumstances, The consideration of whether there are exceptional circumstances is limited to the matters listed in s. 394(3)(a) – (f). However, if exceptional circumstances are found to exist, the Commission may also consider the same matters, in addition to any other relevant matters, as part of the second step of the decision-making process – deciding whether to extend time.

The correctness of this proposition was recognised by a Full Bench of the Commission in Schneider v Apollo Motorhome Holidays Pty Ltd.[60] That decision concerned an appeal against a decision[61] of Vice President Hatcher (as his Honour then was) where, notwithstanding a conclusion that there were exceptional circumstances, an extension of time was refused on the ground that it was not fair and equitable to grant the extension. In summary, the finding of exceptional circumstances was based on an email apparently advertising the former position of an employee who had believed that her role was genuinely redundant. In relation to exceptional circumstances, it was concluded that the email was unclear and insofar as it caused the applicant to believe that her dismissal was unfair because her position was not genuinely redundant, the applicant had a reasonable explanation for her delay in filing an unfair dismissal application.

In relation the other matters in s. 394(3) his Honour concluded that the applicant was aware of her dismissal when it took effect and took no action whatsoever to dispute the dismissal prior to filing her application. In relation to merits, it was found that while it was reasonably arguable that the consultation requirements in relation to genuine redundancy may not have been met, it did not necessarily follow that the dismissal was unfair. It was also found that other arguments the applicant may advance about redeployment while not devoid of merit, could not be assessed as having good prospects of success in all the circumstances. Ultimately, it was concluded that while the discovery by the applicant of information which caused her to doubt the genuineness of her dismissal on the grounds of redundancy was sufficiently unusual to constitute exceptional circumstances, it would not be fair and equitable to grant an extension of time. In relation to this conclusion, weight was placed on the following matters in s. 394(3)(a) – (f), which had also been taken into account to decide that there were exceptional circumstances:

The applicant took no action to dispute or question her dismissal within the 21-day period or before filing her application.
While subjectively it was reasonable that the applicant formed a view that her dismissal was not a genuine redundancy, objectively this aspect of the applicant’s case was without merit because the position had been outsourced to an independent business in the Philippines (a fact unknown to the applicant when she made her application outside time).
Other aspects of the applicant’s case assessed as having some merit and being reasonably arguable, related to matters known to her well prior to the 21-day lodgement period.

The applicant appealed contending, inter alia that the findings in relation to merit were inconsistent because his Honour found that the claim was ‘not devoid of merit’ for the purposes of deciding whether there were exceptional circumstances, and went on to conclude that the substantive application could not be assessed as having good prospects of success, in deciding it was not fair and just to exercise the discretion to extend time. In relation to this appeal ground, the Full Bench said that there was no inherent contradiction in the Vice President’s observations.[62] Schneider is also illustrative of a temporal distinction in the decision-making process of first determining whether there are exceptional circumstances and if so, whether it is fair and just to extend time. The first stage of the decision-making process in that case focused on the circumstances at and before the time the application was made, to determine whether they were exceptional having regard to the matters in s. 394(3). The information found to have been the basis for the Appellant’s reasonable belief that her role was not made redundant, was not available in the 21-day period immediately following her dismissal. It was held that lack of awareness of the relevant facts provided a reasonable explanation for the applicant’s delay in making her application. The second stage of the decision-making process focused on the circumstances at the point the decision as to whether it was fair and just to extend time was made. At that point it was apparent that what may have been an arguable case from the subjective view of the applicant when she made the application, was not arguable on an objective basis, when the respondent had outlined its case. We note that in that case, the main facts were either not in dispute or clearly established by the evidence and it was possible to make a realistic assessment of the merits of the application.[63]

Relevance of presumption of prejudice to extension of time under the FW Act

In GHD Pty Ltd T/A GHD v Kevin Alan Black[64] (GHD) a Full Bench of the Commission made the following observation in relation to a general protections application filed outside the time required in s. 366(1) of the FW Act:

‘It is well accepted that a lengthy delay gives rise to a general presumption of prejudice. The 168-day delay in Mr Black’s general protections application can only be described as lengthy. A relevant prejudice is one that GHD would not have suffered, had the application been made within 21 days of the dismissal taking effect. Having regard to the contentions made by Mr Black in his general protections application, and his reliance upon alleged discussions and meetings, it is conceivable that, consistent with GHD’s submissions, a significant delay of 168 days may impair the recollection or availability of GHD’s witnesses and thereby give rise to a relevant prejudice.’ (emphasis added)

In support of the first proposition the Full Bench cited Brisbane South v Taylor and in respect of the second proposition, Clarke v Service to Youth Council Incorporated and Others[65] (Clarke). The Full Bench went on to accept that the appellant (the employer) had established that the delay in making the application gave rise to a relevant and material prejudice to its ability to defend the case.[66] The Full Bench in GHD also noted the submission of the employer that statutory time limits are directed towards the timely resolution of disputes and the provision of certainty to parties.[67] It is necessary to note that the reference by the Full Bench in GHD to ‘a general presumption of prejudice’ was in the context of a lengthy delay in filing the application in that case, with the application being filed 168 days outside the statutory time limit.

In Clarke, another decision under the FW Act, White J was considering whether an extension of the time in which to bring a general protections court application should be granted under s. 370. His Honour cited passages from the judgement of McHugh J in Brisbane South v Taylor and stated that the observations in relation to rationales for limitations were especially pertinent, given that one of the forms of relief sought in the general protections court application for which an extension of time was sought, was reinstatement. In this regard it was stated that generally, the longer the period from termination of employment, the more difficult reinstatement will be. Further, his Honour said that the relatively short limitation period of 14 days may be understood as a legislative recognition of that difficulty and an intention of the Parliament that applications under s 371 of the FW Act should be brought promptly so that the practical difficulties which an order for reinstatement can occasion may be minimised.

Presumption of prejudice and the residual discretion to grant an extension of time

As these cases indicate, there are some significant differences between the statutory time limits applicable to claims for personal injury, negligence or breach of duty, of the kind considered in Brisbane South v Taylor, and the time limits in the FW Act for making unfair dismissal and general protections applications. Not the least of these differences is that the time limits for making claims for remedies relating to dismissal under the FW Act are significantly shorter than those relating to claims for personal injury. It is one thing to presume prejudice in the context of a claim brought a day or a week beyond a three-year limitation period. It is another thing entirely to presume prejudice where a claim is brought days, or even hours, outside a 21-day limitation period. Notwithstanding these differences, the decision of the majority and the rationales for time limits identified by McHugh J in Brisbane South v Taylor support the following propositions relevant to the Commission deciding whether to exercise its residual discretion to grant extensions of time under the FW Act after finding that there are exceptional circumstances.

First, the rationales for time limitations identified by McHugh J, are relevant to time limits under the FW Act and give context to the approach to considering the relevance of prejudice to the question of whether an extension should be granted in particular cases. The rationales were identified by White J in Clarke as relevant to the question of whether the 14-day time limit for making a general protections court application should be extended. Consistent with those rationales, the 21-day limitation period for unfair dismissal and general protections applications involving dismissal, can be taken to represent the judgment of the legislature that the welfare of society is best served by such applications being made within that time frame and that they are promptly litigated. That the legislature intended this is made clear by the Explanatory Memorandum to the Fair Work Amendment Bill 2012. Relevantly, the amendments included an extension to the time frame for lodging an unfair dismissal application from 14 to 21 days and reducing the time frame for making a general protections application to the Commission from 60 days to 21 days. The Statement of Compatibility with Human Rights in the Explanatory Memorandum said:

“Part 1 of Schedule 5 to the Bill shortens the time limit for applying to the FWC to mediate or conciliate a dispute about a dismissal in contravention of Part 3-1 from 60 days to 21 days. The FWC will retain its existing ability to accept late applications in exceptional circumstances, taking into account factors such as the reason for delay, fairness and the merits of the case.
This amendment will align the timeframe for lodging dismissal-related general protections claims with the new 21 day time limit for lodging unfair dismissal applications. This will provide greater clarity to applicants and respondents and will require applicants to determine at the outset which claim they intend to pursue. Where an employee challenges a dismissal, it is in the interest of both the employee and the employer for the matter to be resolved quickly so that, in the event of a successful challenge, the employee can return to their original position with minimal impact on relationships and management of the business. Together with the amendment made by Part 1 of Schedule 6, this amendment balances the need to provide sufficient time for employees to consider the most appropriate application, and the need to provide certainty for employers in relation to the types of claims they may be exposed to. The FWC’s discretion to accept late applications protects employees in relation to how the time limit is applied.”

The Explanatory Memorandum also confirms the intention of the legislature that there be consistency between extension of time provisions for both types of applications. The consideration of the welfare of society is also reflected in the requirement that the Commission take into account the matters in s. 394(3)(f) and s. 366(2)(e), concerning fairness as between the person seeking a further period to make an application, and other persons in a like position. This factor directs attention to other persons dismissed at the same time as the person seeking the extension, and the need for consistency in the approach and principles relevant to exercising the discretion to extend time.

Further, a short limitation period is consistent with the Object of Part 3–2 – Unfair dismissal, of the FW Act in s. 381, which emphasises: balancing the needs of employees and employers;[68] establishing procedures for dealing with unfair dismissal that are quick and flexible;[69] providing remedies if a dismissal is found to be unfair with an emphasis on reinstatement; and according a fair go all around to both the employer and the employee concerned.[70] A delay that is relatively short in the context of a three-year limitation period, may be relatively long in the context of a 21-day limitation period. Notwithstanding that the 21-day limitation for applications to the Commission is shorter than the periods relevant to personal injury claims, circumstances in a workplace are susceptible to change, often in a short space of time, and the rationales are relevant. Even where a delay in filing an unfair dismissal application is relatively short, the potential respondent may be prejudiced. Once the 21-day time limit has elapsed, potential respondents to unfair dismissal applications are entitled arrange their affairs and utilise their resources on the basis that claims can no longer be made against them, other than where there are exceptional circumstances and the fairness and justice of the case justifies an extension. While both reinstatement and compensation can be awarded for an unfair dismissal, reinstatement is the primary remedy.[71]

Consistent with the decision in Clarke, the longer the period between a dismissal and reinstatement, the more difficult it becomes to re-establish the employment relationship and the necessary trust and confidence that attends it. Where a delay in filing an unfair dismissal application is relatively lengthy, potential witnesses may cease their employment, records may be lost or destroyed, or memories fade or become unclear, particularly when they involve past conversations or events. The effect of delay may be heightened where the respondent seeks to defend a claim by relying on warnings for earlier instances of the same or similar conduct, to defend a claim of unfair dismissal, or where records such as those relating to training or induction, over the course of employment, are relevant and may be more difficult to locate as time elapses.

Second, like the discretion considered by the High Court in Brisbane South v Taylor, the FWC has a residual discretion to grant, rather than a residual discretion to refuse an extension of time.[72] As was determined in Brisbane South v Taylor, an applicant for an unfair dismissal or general protections remedy under the FW Act does not have a presumptive right to an extension of time because he or she establishes that there are exceptional circumstances enlivening the discretion to grant an extension.

Third, as we have earlier stated, deciding whether to extend time to make an application is a two-stage process. The questions to be answered at each stage are distinct and serve separate purposes. The first stage of the decision-making process involves taking into account a specified list of matters and deciding whether individually or collectively, those matters constitute exceptional circumstances favouring an extension of time. Where exceptional circumstances are found, the second stage involves deciding whether in all the circumstances, it is fair and just or equitable to grant an extension of time to make the application. Prejudice to the respondent may be considered in the second stage of the decision-making process, notwithstanding that it has been considered in the first stage, by virtue of the requirement that it be taken into account, pursuant to s. 394(3)(d).

Fourth, the applicant bears the evidentiary burden in both parts of the decision-making process, of establishing that there are exceptional circumstances that enliven the discretion to extend time, and that fairness and the justice of the case warrants an extension being granted. The reference to the plaintiff bearing the onus to establish the necessary grounds for an extension in Brisbane South v Taylor is to a legal onus. A legal onus of proof or burden of persuasion has limited role and is a tiebreaker where the trier of fact thinks the plaintiff’s and the defendant’s cases are equally probable and in such cases the applicant’s case should fail.[73] It has been observed that the notion of legal onus has limited application in a jurisdiction such as the Fair Work Commission, which is not bound by the rules of evidence.[74] In a practical sense, in most cases the question of where an evidentiary onus resides will be answered by asking: in relation to each matter about which the Commission must be satisfied, which party will fail if no evidence or no further evidence about the matter were given.[75]

The Respondent bears an evidentiary onus to establish actual prejudice. If a respondent provides credible evidence of actual prejudice caused by a delay in making an application, the applicant must rebut that evidence or risk that a finding of prejudice will be the basis for the Commission to find that there are no exceptional circumstances or to refuse to exercise discretion to extend time. The Commission may make a finding of actual prejudice to the Respondent by reference to findings based on available evidence, regardless of how that evidence is placed before the Commission. Where a respondent to an unfair dismissal application does not provide evidence of prejudice, mere absence of prejudice does not favour a finding of exceptional circumstances or the exercise of the discretion to grant an extension of time to make an application. With respect to the matters in s. 394(3), to take this approach in relation to prejudice, would be to elevate the absence of prejudice over the other matters listed in that section. That approach would also be tantamount to applying a decision rule that is contrary to the requirement for the Commission to take into account each of the matters in s. 394(3), and to consider whether individually or collectively they amount to exceptional circumstances. Further, to take an approach that an absence of prejudice must favour the exercise of the residual discretion to grant an extension of time where exceptional circumstances are found, may result in error of the kind identified by the High Court in Brisbane South v Taylor, whereby the discretion to extend time is not a discretion at all.

It is also the case that to take a strict approach to onus in unfair dismissal proceedings, including those involving extensions of time, may be inconsistent with the object in s. 381 to balance the needs of employers and employees, to establish procedures that are quick, flexible and informal and to afford a fair go all around. Parties in unfair dismissal proceedings who are unrepresented, may not provide evidence in relation to the presence or absence of prejudice. While a respondent employer would be expected to raise actual prejudice, that the employer does not do so, does not prevent the Commission from presuming that the employer will be prejudiced where a delay is significant or there is a factual basis for the presumption. Further, and related to onus, as the majority in Brisbane South v Taylor held, prejudice in both stages of the decision-making process, is considered primarily with reference to the position of the respondent.

Fifth, for the purpose of taking prejudice into account, or deciding whether to exercise the discretion to extend time, a comparison between an application filed at the end of the 21-day time limit and one filed shortly after the expiration of that period, is not relevant. If an unfair dismissal application is made at 11.59 pm on the twenty-first day, prejudice to the respondent by virtue of the application simply being made, is not relevant. Prejudice to the respondent becomes relevant when an application is made outside the time limit.

Sixth, when an application is made outside the required time, the Commission is not limited to the period of the delay for the purpose of considering prejudice to the respondent. Regard may also be had to the cumulative effect of the delay including the 21-day period from when the dismissal took effect. It is implicit in the judgments in Brisbane South v Taylor, that regard may be had to the period prior to the expiration of the time limit in assessing prejudice. Further, there are cases concerning extensions of time under the FW Act where circumstances at or around the time of dismissal or arising during the 21-day period after a dismissal takes effect, have been taken into account in explaining delay for the purposes of assessing whether there are exceptional circumstances. In this regard, it has been held that the explanation for delay is the explanation as to why the application was lodged beyond the 21-day period, and may include circumstances prior to or at the time of the dismissal which impacted the dismissed person’s ability file within time.[76] This proposition applies with respect to prejudice to the respondent, and it is permissible, with respect to prejudice to the Respondent, to consider circumstances prior to and at the time the time the dismissal took effect, including the 21 days immediately following that date upon which the application is made.

Conclusion in relation to appeal ground 3

To establish the error contended for in ground 3 the Appellant is required to establish error in the decision-making process or that the Commissioner acted on a wrong principle, mistaken the facts, taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust. The Appellant has not established such an error with respect to ground 3. We do not accept that the Commissioner erred in the manner asserted in appeal ground 3. The weight to be given to prejudice – whether actual or presumptive – is a discretionary decision.

The Appellant’s contention in relation to ground 3, that the only prejudice demonstrated by the Respondent was presumptive prejudice, is not accurate. As the Respondent correctly submits, its case depended on events which occurred on 21 September 2023 and 17 February 2024 and did not rely solely on jurisdictional objections. We also note that in its Form F3 Response to the application, the Respondent asserted that there is prejudice to the employer if the application is allowed to proceed. Further, in its submissions at first instance, the Respondent said that long delays occasion prejudice even if parties themselves do not realise it[77] and cited the decision of Deputy President Boyce in El Samman v Sydney Trains[78] where it was accepted that the prejudice suffered by the Respondent in relation to an application filed 79 days outside of the statutory 21-day time period, weighed against a finding of exceptional circumstances.[79]

The Commissioner’s observations in relation to prejudice in paragraphs [61] – [65] are correct, were open to him on the evidence, and there is no error in this respect. Even if we accepted that the Respondent did not establish actual prejudice, it remains the case that the Commissioner did not apply a presumption of prejudice as a decision rule, and did not conclude that any delay gives rise to a general presumption of prejudice. Rather, the Commissioner observed that: ‘It is well accepted that a lengthy delay gives rise to a general presumption of prejudice’. That observation is 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 decision of the Full Bench in GHD where the relevant delay was 168 days.

As the Respondent in this case submits in the appeal, a lack of evidence of actual prejudice does not lead to a presumption of no prejudice. The Commissioner’s observation in relation to the general presumption of prejudice is consistent with the rationale in Brisbane South v Taylor that prejudice may exist without the parties or anyone else realising that it exists. In our view, the facts in the present case are an example of why this is so.

There are facts which are not in dispute, that provide a sound basis for the Commissioner’s observation that in the context of the present case, significant delay gives rise to a general presumption of prejudice. If the application was allowed to proceed, the nature of the relationship between the Appellant and the previous owners of the Motel would need to be considered and a finding made as to whether the Appellant was an employee of the previous owner. Regardless of which party bears the onus to establish that the requirement in relation to serving the minimum employment period is met, it is likely that to defend the application the Respondent would have been required to call some evidence about that relationship and its assumptions with respect to the contract for the purchase of the business.

The Respondent purchased the business on 31 August 2024 and commenced operating it on 21 September 2024. Prejudice to the Respondent associated with having to call evidence about the sale and the nature of the Appellant’s relationship with the former owners, can be presumed to increase proportionately with the length of the delay in the Appellant filing her unfair dismissal application. At the point the application was made, a period of some 7 months had elapsed from the purchase of the Motel. It is also the case that after the Respondent terminated its arrangement with the Appellant it engaged another related entity to operate the Motel. To allow the Appellant to mount an unfair dismissal claim 101 days beyond the time limit for making such an application would likely have impacted that arrangement.

If the Appellant had made her application within time, a presumption of prejudice would not have been available on the bases we have identified above. However, those matters are relevant in the context of the delay. As we have stated, the delay in this case is significant and the Commissioner did not err in regarding it as such and weighing the factor in s. 394(3)(d) as being against a finding of exceptional circumstances.

Accordingly, we grant permission to appeal on the basis that ground 3 raises issues of importance and general application concerning the concept of prejudice and the approach to identifying and weighing prejudice for the purposes of s. 394(3)(d) of the FW Act. For the reasons set out above, we reject appeal ground 3.

Orders

We make the following orders.

Permission to appeal is refused in relation to grounds 2 and 3.
Permission to appeal is granted in relation to ground 3.
The appeal is dismissed.

VICE PRESIDENT

[1] [2024] FWC 2134.

[2] PR778238.

[3] Appeal Book pp. 111 – 131 (Contract for Sale of Coonamble Motel).

[4] Appeal Book page 94.

[5] Decision at [26].

[6] See for example Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; [2011] FWAFB 975; Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347; [2011] FWAFB 2728.

[7] At [30] Citing Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[8] At [31] citing Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[9] Referring to the summary provided by Easton DP in Victor Blanco v White Bathroom [2021] FWC 4694 at [44]-[51].

[10] Citing Gail Miller v DPV Health Ltd[2019] FWC 3979 at [10].

[11] (1996) 186 CLR 541 at 551.

[12] [2023] FWCFB 38 at [51].

[13] Decision at [61] – [65].

[14] PR778238.

[15] (2001) 207 CLR 21.

[16] Kyvelos v Champion Socks Pty Ltd U No. 31007 of 2000 (AIRC unreported T2421, 10 November 2000).

[17] (2016) 258 CLR 134 at [100].

[18] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and

Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[19] Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], per Buchanan J (with whom Marshall and Cowdroy JJ agreed).

[20] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch

(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services

Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].

[21] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].

[22] Wan v AIRC (2001) 116 FCR 481 at [30].

[23] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28],

202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014].

FWCFB1663, 241 IR 177 at [28].

[25] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace

Relations [2014] FWCFB 2288 at [21].

[26] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194.

[27] (1936) 55 CLR 499.

[28] Gelagotis v Esso Australia Pty Ltd T/A Esso[2018] FWCFB 6092 at [43].

[29] Broadbent v Goulburn Flight Training Academy Pty Ltd [2021] FWCFB 2794; Donohoe v QuickComms Australia Pty Ltd [2020] FWCFB 5426 at [53]; Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [71] – [73]; Kyvelos v Champion Socks Pty Ltd Dec 1294/00 M Print T2421 at [13].

[30] Herc v Hays Recruitment [2022] FWCFB 234 at [15].

[31] Ibid at [17].

[32] Donohoe v QuickComms Australia Pty Ltd [2020] FWCFB 5426 at [53].

[33] Broadbent v Goulburn Flight Training Academy Pty Ltd [2021] FWCFB 2794 at [28].

[34] AIRCFB Print T2421, 10 November 2000 at [15].

[35] Ibid at [15].

[36] (1936) 55 CLR 499.

[37] Dawson, Toohey, McHugh and Gummow JJ, Kirby J dissenting.

[38] Brisbane South v Taylor Op. cit. at 547.

[39] Ibid at 547.

[40] Ibid at 553 - 554.

[41] Ibid at 555.

[42] Ibid at 555.

[43] Ibid at 551.

[44] Ibid at 552.

[45] Ibid at 549.

[46] Op. cit. at 548 – 549.

[47] Ibid at 554 – 555.

[48] Ibid at 555.

[49] [2006] NSWCA 364.

[50] Ibid at [38].

[51] Ibid at [37].

[52] Ibid at [35] – [36].

[53] (1995) 67 IR 298.

[54] Ibid at [12].

[55] Schneider v Apollo Motorhome Holidays Pty Ltd [2015] FWCFB 1259 at [13].

[56] Lombardo v Commonwealth of Australia [2014] FWCFB 2288 at [21].

[57] Nulty v Blue Star Group Pty Ltd [2011] FWCAB 975 at [13].

[58] Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24.

[59] [2018] FWCFB 901; Schneider v Apollo Motorhome Holidays Pty Ltd op. cit. at [12].

[60] [2015] FWCFB 1259.

[61] Schneider v Apollo Motorhomes Holidays Pty Limited [2015] FWC 482.

[62] Ibid at [31].

[63] Op. cit. at [14].

[64] [2023] FWCFB 38.

[65] [2013] FCA 1018.

[66] Ibid at [86].

[67] Ibid at [84].

[68] Ibid. 381(1)(a) and (b)(ii).

[69] Ibid s. 381(1)(b)(i).

[70] Ibid s. 381(2).

[71] Fair Work Act 2009 s. 381(1)(c), s. 390(3).

[72] Brisbane South v Taylor op. cit. at 547 per Toohey and Gummow JJ.

[73] Teterin and Others v Resource Pacific Limited t/a Ravensworth Underground Mine[2014] FWCFB 4125 at [25] citing Cross on Evidence.

[74] Coal and Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1997) 73 IR 311 at 317 and Re Chamber of South Australian Employers Inc (No 2) (1991) 43 IR 424.

[75] Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic v Chan[2019] FWCFB 5104 at [43].

[76] C Ozsoy v Montsomac Industries Pty Ltd [2014] FWCFB 2149 at [31].

[77] Prince Alfred College Inc v ADC (2016) 258 CLR 134 at [100] per French CJ, Kiefel, Bell, Keane and Nettle JJ.

[78] [2022] FWC 2778 at [24] and [25].

[79] Appeal book at 188.

Printed by authority of the Commonwealth Government Printer

[2025] FWCFB 122

20 June 2025