Xue v ALDI Foods Pty Ltd
[2025] FedCFamC2G 911
•13 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Xue v ALDI Foods Pty Ltd [2025] FedCFamC2G 911
File number(s): SYG 1350 of 2024 Judgment of: JUDGE GIVEN Date of judgment: 13 June 2025 Catchwords: INDUSTRIAL LAW – Where applicant failed to commence proceedings within 14 days of days of certificate issued by Fair Work Commission – whether time should be extended – where basis for delay said to include medical grounds – where applicant altered medical certificate – extension of time refused Legislation: Civil Procedure Act 2005 (NSW) s 56
Fair Work Act 2009 (Cth) ss 365, 368, 370
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 9.04
Migration Act 1958 (Cth)
Cases cited: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Clarke v Service to Youth Council Incorporated [2013] FCA 1018
Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 per Griffiths CJ at 342
Muthusamypillai v Arvato Australia Pty Ltd [2025] FedCFamC2G 22
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
Priest v New South Wales Priest [2007] NSWSC 41
SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17
Transport Workers Union v School Bus Contractors (2011) 246 FLR 430
Division: Fair Work Number of paragraphs: 59 Date of hearing: 20 March 2025 The Applicant: In person Solicitor for the Respondent: Mr B Dudley, Seyfarth Shaw Australia ORDERS
SYG 1350 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GAN NAN XUE
Applicant
AND: ALDI FOODS PTY LIMITED
Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
13 JUNE 2025
THE COURT ORDERS THAT:
1.The application for extension of the time within which to institute a proceeding under s 370 of the Fair Work Act 2009 (Cth) is refused and, accordingly, the proceedings are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before the Court is an application made pursuant to the Fair Work Act 2009 (Cth) (Act) on 18 June 2024 (application).
Pursuant to s 370(a)(ii) of the Act, an application to this Court is required to be made within 14 days after a certificate pursuant to s 368 of the Act is issued. By reference to the date of the relevant certificate issued to the applicant (12 December 2023 (see [5] below)), the application in this case is approximately 6 months out of time. Accordingly, the applicant requires an extension of the time in which to commence these proceedings pursuant to s 370(a)(ii) of the Act. That interlocutory question is the subject of these reasons for judgment.
BACKGROUND
The following background is primarily derived from the written submissions of the respondent filed on 12 March 2025 and the material available on the electronic Court file. Unless otherwise indicated, the following does not appear to be in dispute.
The applicant worked for the respondent, ALDI Foods Pty Ltd (ALDI) for approximately 3 months in 2023.[1]
[1] Annexure “GW-01” to the Affidavit of Gabrielle Marree Shooter Wilson (Wilson Affidavit) affirmed on 18 February 2025
On 13 September 2023, the respondent terminated the applicant’s employment because, it says, he failed to satisfactorily pass a probation period. On 3 October 2023, the applicant made an application to the Fair Work Commission (FWC) pursuant to s 365 of the Act relating to his dismissal by the respondent. On 12 December 2023, the FWC issued a “Certificate under
s 368” (Certificate). As is usual, that Certificate contained the following note (emphasis in original):The person dismissed or an industrial association that is entitled to represent the industrial interests of the person dismissed has 14 days after the day this certificate is issued within which to make a general protections court application to the Federal Court of Australia or the Federal Circuit and Family Court of Australia for a civil remedy order, unless the court extends the time for making such an application…
APPLICATION TO THIS COURT
On 18 June 2024, the applicant filed the application together with a “Form 2 Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” (originating documents) with the Court. Accordingly, the originating documents were filed almost six months after the end of the 14-day period prescribed by s 370(a)(2)(ii) of the Act. Annexed to the Form 2 was the Certificate and a Termination Advice Form.
The proceedings were listed for a first Court date on 20 December 2024, on which occasion the applicant appeared. There was no appearance for the respondent which was unsurprising once the applicant confirmed he had not served the respondent with the originating documents.
At the first Court date, I adjourned the proceedings to 19 February 2025 and made the following orders (December orders):
1.Pursuant to rr 13.04(1)(a) and (e) and 13.05(1)(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) the applicant must:
a. serve a copy of these orders, and copies of the originating documents filed on 18 June 2024 on the respondent by 4:00pm on 23 January 2025; and
b. file and serve an Affidavit of Service demonstrating compliance with order 1 above by 4:00pm on 6 February 2025
2.The respondent must appoint a legal representative who must file and serve a Notice of Address for Service in accordance with r 9.04 of the Rules by 4:00pm on 13 February 2025.
together with the following notation:
In the event that the applicant does not comply with order 1 above, the proceedings may be dismissed at the directions hearing referred to in order 3 above, pursuant to rr 13.04(1)(a) and (e) and 13.05(1)(c) of the Rules.
On 19 February 2025, the proceedings returned before me for further directions. The applicant again appeared in person. The respondent was represented by a solicitor who had filed a Notice of Address for Service in accordance with r 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). On this occasion, the solicitor for the respondent presaged a default judgment application on the basis that the applicant had failed to comply with order 1(b) of the December orders, namely by not filing an Affidavit to demonstrate he had served the respondent. That was despite the fact that the originating documents had clearly come to the respondent’s attention because it had appeared in the proceedings, and was represented at the directions hearing.
Such an application would have been misplaced.
In Priest v New South Wales [2007] NSWSC 41 (Priest) at [34], Johnson J said the following about s 56 of the Civil Procedure Act 2005 (NSW), which is analogous to s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth):
In a sense, s 56 has the result that every litigant in civil proceedings in this Court is now a model litigant.
The model litigant obligation, in its first ever expression at common law in Australia[2] specifically referred to an obligation (on public litigants) to refrain from taking unnecessarily technical points. While not a public litigant, I express surprise that the respondent, being a relatively well-resourced corporation, would take such an unnecessarily technical position against an unrepresented litigant in circumstances where, clearly, the need for an Affidavit of Service had been overtaken by the fact of its appearance in the proceedings and, more specifically, at the directions hearing before me. The overarching purpose of this Court’s practice and procedure to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible,[3] is not met by such an approach. Parties have a duty to conduct the proceedings consistently with the overarching purpose[4]and their lawyers must act in a manner which takes that duty into account.[5] Had the respondent pressed its default judgment application, on the basis of the material before the Court and having regard to the aforementioned principles, it would not have succeeded.
[2] Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 per Griffiths CJ at 342
[3] See s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act) and r 1.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
[4] See s 191(1) of the Court Act
[5] See s 191(2) of the Court Act
The more significant and substantive issue is that the application was not made in time and, thereafter, not brought to the attention of the respondent until 24 January 2025, being more than 16 months after the termination date, and more than six months after the proceedings were commenced. I accept that the respondent was not made aware of the proceedings before that time (see Affidavit of Gabrielle Marree Shooter Wilson affirmed on 18 February 2025 (Wilson Affidavit) at [7] to [10]). Unlike the matters set out at [9] above, the application being out of time is not a mere technicality.
Given the applicant requires an extension of the time in which to bring the proceedings (which he acknowledges), and having regard to the fact he is unrepresented, I circumvented the need for him to file an application in a proceeding. Instead, the Court made the following orders on 19 February 2025 bringing the interlocutory issue before me for hearing:
1.The applicant must file and serve any Affidavit evidence and a written submission in relation to the question of whether the time in which to bring the application should be extended by 4:00pm on 5 March 2025.
2.The respondent must file and serve any Affidavit evidence and a written submission in relation to the question of whether the time in which to bring the application should be extended by 4:00pm on 19 March 2025.
3.The proceedings are listed for a hearing on the preliminary question of the extension of time for the bringing of the application before Judge Given at 10:15am on 20 March 2025 at Court 13.1 level 13, 80 William Street Woolloomooloo.
4.Liberty to apply on 2 days’ notice.
On 20 March 2024, the proceedings came before me for hearing on the question of whether the time in which to bring the application should be extended. The applicant was unrepresented and the respondent was represented by the same solicitor who appeared at the directions hearing on 19 February 2025.
Evidence
The applicant sought to rely on a document which was styled as an Affidavit made by him on 5 March 2024 (applicant’s Affidavit). However, by reference to the content of the body of that document, it was received as a written submission. From the Bar table, the applicant also sought to tender documents which he had not previously provided to the respondent, nor to the Court. I adjourned briefly to enable copies of those documents to be made by my Associate. Having heard from the respondent, the tender of the following documents was allowed, subject to the question of their relevance:
(a)a bundle of documents which consisted of Facebook Messenger screenshots of a conversation between the applicant and a man whom he says is a former work colleague at ALDI, which was marked as Exhibit “1A”;
(b)medical certificates from a Dr Wong pertaining to the applicant dated 5 November 2024 (2024 certificate) and 4 March 2025, which were collectively marked as Exhibit “2A”; and
(c)a letter from “Wellbe counselling and Psychology” dated 16 October 2024 which was marked as Exhibit “3A”.
For the respondent, the Wilson Affidavit was read without objection.
Extension of time principles
Section 370 of the Act relevantly provides that:
(1) A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days.
The effect of sub-s 370(a)(ii) is that, in circumstances where the application is filed outside the 14-day time limit, the Court has a discretion to extend time for the bringing of an application under s 365 of the Act.
Section 370 of the Act also contains the following note:
Note: For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.
The decision of the Industrial Relations Court of Australia referred to in the notation to s 370 of the Act, Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (Brodie-Hanns), outlines the relevant principles which apply when the Court is considering whether to grant an extension of time to an applicant who has filed an application outside of the 14-day time limit prescribed by s 370(a)(ii) of the Act. The following principles outlined in Brodie-Hanns at 299 by Marshall J, whilst not intended to be necessarily binding or exhaustive,[6] act as a helpful guide to the criteria to be applied:
1.Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2.Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3.Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4.The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5.The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6.Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.
[6] Transport Workers Union v School Bus Contractors (2011) 246 FLR 430, Lucev FM (as his Honour then was)
The Court, in exercising its discretion to extend time, may consider any other matters it considers relevant and which the parties raise in support of, or in opposition to, the request for an extension of time: see Clarke v Service to Youth Council Incorporated [2013] FCA 1018 per White J (Clarke).
The delay and explanation for it
In relation to the first factor, it is well established that the longer the delay, the more comprehensive and persuasive the explanation for it must be: Clarke (supra) at [9].
The respondent says that the delay of almost 6 months is “significant” and necessitates an objective and “critical” assessment of the applicant’s explanation.
The explanations to the Court in relation to the applicant’s reasons for his delay in making the application are contained in the applicant’s Affidavit document which was received as a written submission. The applicant’s explanations can be broadly distilled as being that he:
(a)did not pay attention to the note on the Certificate relating to the relevant time limit;
(b)is unrepresented and unfamiliar with the procedures of the Court; and
(c)was distressed, and his health was affected by the fact the respondent had terminated his employment, which prevented him from filing any sooner than he did.
Ignorance of limitation period
The respondent says that given the explanation set out at [25(a)] above, it is open to infer that the applicant was not ignorant of the relevant statutory time limit, and that it is reasonable to suppose that he had read the notation to the certificate by reference to his own evidence that:
I only had 14 days after the certificate was issued by the fair work commission…as it was clearly stated in the bottom of the page.[7]
[7] Applicant’s Affidavit at 1
To give the applicant the benefit of the doubt, I am prepared to accept that by this statement he is recounting his current understanding of the limitation period and not, as the respondent contends, his understanding in 2023 of the limitation period.
However, even accepting that in 2023 the applicant was unaware of the statutory limit, failed to read the notation to the FWC certificate and/or otherwise to make any diligent enquiries, this is not in and of itself, sufficient justification for failing to commence in time: see SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17 at [38] per Foster J.[8] Based on the material before the Court, the applicant is not in a particularly different position than other unrepresented litigants who do commence proceedings within the requisite period.
[8] Albeit in the context of an application to extend time under the Migration Act 1958 (Cth)
The medical explanation
At hearing, the applicant made submissions that time should be extended because the termination of his employment had a “big impact on my health, mentally and physically”.[9]
[9] Transcript dated 20 March 2025 (Transcript) at T9.46 to 47
The applicant says the respondent has ruined his life and that the first six months after his dismissal was “the hardest time in my life”.[10] The applicant told the Court he has been unable to sleep, was reliant on sleeping pills and was unable to drive as a result of that medication. The applicant said that, on occasion, he would walk around his neighbourhood in the middle of the night, resulting in concern from his neighbours,[11] and that his personality had ultimately changed from being “positive and happy” to “passive” and “negative”.[12]
[10] Transcript at T9.21
[11] Transcript at T10.36 to 44
[12] Transcript at T10.1
The applicant made further submissions to the effect that his change in personality had resulted in him becoming angry towards his family and crying often, and that he had attempted to find a new job, but his poor “body condition” prevented him from being able to work. The applicant told the Court he had suffered a small stroke late last year, and that he used to be very active but now did not want to talk to anyone. The applicant then began to move from telling the Court about the impact of the dismissal on his health (which I infer was intended to go to the explanation for the delay) to speaking about matters pertaining to why he was dismissed from ALDI and medical issues which pertain to his mother. The applicant submitted that the reason he did not file his application in time, was because he was “trying to put myself together” and was “sort of, like, lost”.[13]
[13] Transcript dated 20 March 2025 at T12.9 to 10
In the course of these submissions, the Court discussed with the applicant the medical certificates which form Exhibit “2A”. The applicant says that these certificates go to the effect of the dismissal on his mental and physical health which, in turn, prevented him from commencing the proceedings in time. However, the documents are dated 5 November 2024 and 4 March 2025. As such, each of the certificates post-date the commencement of these proceedings and do not go to explaining why the applicant could not have commenced the proceedings within time. Given the proceedings were commenced on 18 June 2024, I explained to the applicant that there was no medical evidence before the Court that suggests that in the period of the six months leading up to 18 June 2024, the applicant’s currently claimed medical conditions were extant.
Further, the 2024 certificate has certain hand written alterations, namely:
(a)in a sentence in which the typewritten font says “He has been depressed since September 2024 as a result that he was sacked by Audi[14] while on the probation”, a handwritten number 3 has been applied over the year, so that it instead reads “2023”. The 4 is not fully occluded by the handwritten alteration; and
(b)in a subsequent sentence a handwritten correction has been made to the spelling of the applicant’s surname.
[14] Error in original
The handwritten alterations to the 2024 certificate appear to be in a thicker gauge of black ink, than does the blue ink signature of the doctor (which appears by reference to the other medical certificate to be handwritten each time, as opposed to a digital signature).
The applicant was asked to explain the provenance of the handwritten alterations to the 2024 certificate, in response to which he adamantly denied having made the changes himself and said that the doctor had altered the 2024 certificate because:[15]
Dr Wong is getting really old, and then he print – like, when he types it, he types the date wrong.
[15] Transcript at T23.27 to 28
However, the applicant ultimately conceded that it was he himself who had made the handwritten changes, not the doctor. The applicant maintained that he alterations were necessary to correct the errors of the doctor in the 2024 certificate.
I accept the applicant altered the 2024 certificate, but I do not accept he did so simply because it contained errors. If the doctor had made an error as to the dates of the applicant’s condition which had genuinely been the subject of earlier consultation, and therefore was otherwise himself able to attest to the correct year, it would not have been a difficult matter to ask the doctor to issue a fresh certificate which reflected his records. Rather, it is open to infer that the applicant altered the reference from 2024 to 2023 to give the impression that he had a medical condition at the time of the FWC certificate issuing, where such a certificate could not otherwise be issued.
Muthusamypillai v Arvato Australia Pty Ltd [2025] FedCFamC2G 22 (Arvato) is a similar case to the present, in which a medical certificate appeared to have been altered in support of an application to extend the time in s 370 of the Act, albeit the applicant there maintained the alterations were not made by him. In Arvato, I observed the following at [33] to [35]:
33. In NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 (NAKX), Lindgren J considered the content of medical certificates proffered by applicants seeking to persuade the Court to exercise its discretion to adjourn a hearing. His Honour analysed the content of the certificates at [5] to [11] which (in that case) gave details of the respective ailments from which the applicants were said to be suffering. The Court found the certificates to be unpersuasive, particularly because they failed to specify that the medical condition/s would prevent the sufferer/s from participating effectively in a court hearing and in what way the medical condition/s would have any such effect. While acknowledging an adjournment and an extension of time involve the exercise of different discretions, I am satisfied that the reasoning in NAKX is apposite to whether to exercise the discretion to extend time in this case.
34. Even if the Court were to accept the annexed medical certificate is accurate on its face, and considering that document in isolation (by actively putting to one side the content of Exhibit “1R”), in the absence of further detail about the applicant’s medical conditions, I am not persuaded that any medical condition from which the applicant was suffering from 5 to 8 August 2024 (inclusive) was such as to prevent him from commencing the instant proceedings within time. In saying so it is relevant to observe also that, unlike NAKX, the annexed medical certificate made no mention of the applicant’s ability to commence and/or engage in Court proceedings but simply certified the applicant as being “unfit for work”.
35. The aforementioned position is no different in respect of the issued medical certificate. However, the applicant does not rely on the issued medical certificate in support of his application. Rather, he expressly disavows knowledge of its content and/or provenance. As such, and given the findings at [30] and [31] above, there is no legitimate medical certificate advanced by the applicant for consideration.
The content of the certificate does not support the matters the applicant asserts in his Affidavit document nor meet the requirements as discussed by Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559. In the instant case, the respondent submitted that the applicant’s statements in the Affidavit document are ultimately self-reported and are not accompanied by probative medical evidence, and that the medical certificates which form Exhibit “2A” do not change that position. Further, the respondent says that, even on the applicant’s own statements, there is no suggestion that he was so impaired or incapacitated that he could not file the application within time, nor seek advice about how to do so. For the reasons given in Arvato (supra) at [33] to [34], I accept those submissions.
As with Arvato (supra at [38]), the outcome of the document having been altered by the applicant is that regard should not be had to the altered version. When regard is had to the content of the 2024 certificate prior to its alteration, there is no independent evidence to corroborate the claim that the applicant was hampered by medical condition/s in 2023 as being an explanation for his delay in commencing these proceedings.
Overall, I am not satisfied that the applicant has provided a sufficiently reasonable or persuasive explanation for the considerable delay in the present case. This weighs against time being extended.
Action taken by the applicant to contest the termination
The respondent accepts that the applicant took steps to contest the dismissal by filing the application with the FWC. When asked at hearing if he took any steps or action further to what is outlined at [5] above, the applicant made submissions relating to the circumstances which surrounded his dismissal and about the absence of a limitation period in relation to crimes such as murder. Those analogous submissions are unhelpful to the Court in its consideration of whether time should be extended, and in light of the statutory time limit specifically imposed by s 370(1)(a)(ii) of the Act.
While it is true the applicant took steps to commence in the FWC, thereafter he appears to have ceased pursuing the matter for a considerable period. As already addressed above there is no reasonable explanation for his failure to do so for more than 6 months after the issue by the FWC Certificate on 12 December 2023.
The lack of timely action also weighs against time being extended.
Prejudice
The respondent says the delay in the commencement of the proceedings causes it prejudice because as the passage of time may negatively impact the memory of potential witnesses and the availability of documentary evidence. Additionally, the respondent says that it was reasonably entitled to assume that the applicant was not pursuing a claim against it. Nevertheless, the respondent accepts that the extent of the prejudice to it is difficult to quantify and has not asked the Court to make any finding in that respect. The absence of prejudice to the respondent does not, in and of itself, warrant an extension of time.
When asked about prejudice, the applicant described to the Court his grievances with the respondent, including that he has not received apologies from certain individuals employed by it (and presumably whom the applicant considers were responsible for the termination of his employment). The applicant says that the respondent is trying to “pretend nothing happened”.[16] The applicant also appeared to be aggrieved by the fact that two solicitors for the respondent were present in Court (rather than the respondent itself or managers in its employ) and that he was unrepresented. The Court explained to the applicant that it understood he held certain grievances against the respondent, and attempted to again, redirect the applicant’s submissions, this time to the question of prejudice.
[16] Transcript at T16.44
The applicant said that the Court should extend time because his “life was in a mess” and that he was representing people who have previously been “victimised” by a certain manager’s actions.[17] The applicant clearly feels strongly about his case, however that subjective view is not a salient feature of the factors which inform the Court’s discretion.
[17] Transcript at T18.11 to 21
Merits of the application
The fifth principle set out in Brodie-Hanns requires an objective consideration of the merits of the proposed application. Such an assessment, in the context of an application to extend time, is to be undertaken at a reasonably impressionistic level, and the applicant bears the persuasive onus. The contraventions alleged by the applicant, as contained in Part G of his Form 2, are as follows (case in original):
I WAS ACCUSED THAT I LOST MONEY FOR ALDI WHEN I WAS WORKING AT THE REGISTER, BUT I THINK ITS FAIR BECAUSE IT WAS UNDER THE PROBATION PERIOD , THATS WHY IT’S A TRAINING PERIOD STUFF ITS ALLOWED TO MAKE MISTAKES,,AND THEY TOOK REVENGE ON ME BECAUSE I WONT BE ABLE TO WORK INTHE WEEKENDS, I WAS PLANNING TO WORK INTHE WEEKENDS BUT MY MOTHER ITS VERY SICK AND I DONT FEEL COMFORTABLE TO LEAVE HER BY HER SELF BECAUSE SHE HAS GOT DIABETES AND HAVE HAD WENT UNCONSCIOUS BEFORE DUE TO LOW BLOOD SUGAR, SO I HAVE TO WATCH HER CLOSELY ,BUT MY MANAGER WASNT HAPPY ABOUT THAT AND GOT READ OF ME BECAUSE I ANT WORK IN THE WEEKENDS, I WAS SUCH A HARD WORKER , ALL MY WORK COLLEGUES HAD WITNESSED HOW HARD I HAVE TRIED , I DEFINITELY DESERVES A BETTER ENDNING THAN THIS, AND THIS HAD AFFECT ME MENTALLY AND PHYSICALLY , I HABE GOT HEALTH ISSUES NOW DUE TO MENTAL AND BODY STRESS, I HAVE TO CONSTANTLY TAKING SLEEPING PILLS, BECAUSE I CAN NO SLEEP PROPOERLY, AND STRESS ISSUE, I BECOME SHORT FUSED, AND GETS AGGRESSIVE EASILY TOAWRDS OTHERS AND MY FAMILY , THIS HAD CHANGED MY LIFE COMLETELY , I USED TO BE A HAPPD ANF POSITIVE GUY, BUT NOW I FELT HOPELESS, AND I DON’T TRUST THE SOCIETY AND FEEL UNIMPOTIVATED .
The respondent says the applicant’s application is unmeritorious and that to extend time would ultimately be futile. While acknowledging the fact that the applicant is not legally represented and, presumably, that he drafted the Part G claim himself, the respondent says the basis for it is “very unclear”.
I agree that the applicant has not identified with sufficient particularity the workplace right he asserts he exercised, and which he claims formed the basis of alleged adverse action taken against him.
At hearing, when asked whether there was anything he wished to say about the merit of his substantive application, the applicant said that he thinks the Court “should not let them just try to wash their hands and…walk away”.[18] I explained to the applicant that the crux of the respondent’s submission is that there is a difference between unfair dismissal and unlawful dismissal, and that he has brought his proceedings as a general protections matter. The applicant replied that his dismissal was both unfair and unlawful. Again, in an effort to focus the applicant’s mind upon the deficiencies in his application, which the respondent sets out. The Court explained that its jurisdiction is limited by the Act and the certain rights held by the applicant as a result of the period of his service, and that his proceedings were not an avenue for the making of general complaints in relation to what the applicant considers to be personal grievances against the respondent.
[18] Transcript at T18.31
The applicant said that the respondent could simply have asked him to resign due to his inability to work on weekends, and that he did not need to be “sacked” because he had not broken any code of conduct, harassed his female colleagues, disobeyed orders from managers or stolen from the store.[19] The applicant made submissions to the effect that the fact he had not engaged in any of the aforementioned conduct meant that his dismissal was both “unlawful” and “unfair”.[20]
[19] Transcript at T19.25 to 28
[20] Transcript at T19.30
Overall, I agree that the application:
(a)appears to have been made on the basis that the dismissal was an “unfair dismissal” rather than unlawful, however given his termination in probation, the applicant did not have sufficient service with the respondent to make an unfair dismissal claim;
(b)fails to disclose a protected attribute set out in ss 340, 343 or 344 of the Act, which is a necessary requirement for a general protections claim; and
(c)misunderstands the powers of the Court with respect to the claim, noting that Form 2 makes reference to wanting relevant managers involved in dismissing the applicant to be “punished” including by their own dismissal or demotion.
Overall, I am not satisfied that the applicant has discharged his onus of establishing that the application is reasonably arguable, even on an impressionistic level. Accordingly, this also weighs against time being extended.
Fairness
In relation to the question of fairness, the respondent[21] acknowledges that the applicant is self-represented, and the documents filed on his behalf suggest a lack of familiarity with court processes and relevant legislation. The respondent nevertheless submitted that fairness is a neutral factor in the circumstances.
[21] Somewhat at odds with its position at the directions hearing (see [9] to [12] above)
When asked at hearing what he wished to say in relation to the question of fairness, the applicant said the fact he was representing himself and the respondent was being represented by solicitors was not fair, and that he had previously told the FWC that he did not want the respondent to be represented by a solicitor, but that ALDI insisted.[22]
[22] Transcript at T19.46
The applicant then went on to say that he was asking the respondent to compensate him as he had not worked for a year and a half, and that he used to be a person that loved to work and now he feels hopeless and does not trust anyone or society. Overall, I am not satisfied that the applicant has demonstrated that consideration of fairness to him or persons in a like position, warrants time being extended either.
CONCLUSION
Having regard to all the circumstances of this case, none of the relevant factors tend in favour of time be extended, I am not satisfied by the applicant that the considerable extension sought in this matter, in which to bring his application, should be extended.
Accordingly, to the extend he can be taken to have made such an application, it is refused.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 13 June 2025
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