Zahra Riazi v Santos Limited

In the Fair Work Commission, Ms Zahra Riazi sought an extension to lodge a general protections claim against Santos Limited following her dismissal. The application was filed one day after the 21-day statutory limit. The central issue was whether exceptional circumstances justified an extension under section 366(2) of the Fair Work Act 2009. Ms Riazi argued the delay was due to an error made by her legal representative in calculating the deadline, and she was proactive in seeking legal advice. Santos opposed the extension, asserting that Ms Riazi did not demonstrate exceptional circumstances as required by the Act and relied on Pochi and Minister for Immigration and Ethnic Affairs to argue the onus was on Ms Riazi to provide evidence of exceptional circumstances.

The Commission considered the evidence presented and noted that Ms Riazi promptly sought legal advice post-dismissal but faced a delay due to her representative's miscalculation of the deadline. While acknowledging Ms Riazi’s proactive approach in contacting her legal representatives, the Commission highlighted the lack of specific details in the statutory declarations and the absence of medical evidence regarding Ms Riazi’s health post-dismissal. The Commission found Ms Rogers' oral evidence to be generally reliable, which confirmed that Ms Riazi was diligent in contacting her lawyers and arranging a meeting to confirm instructions. However, the Commission did not find sufficient evidence to warrant an extension based solely on the representative's error or the timing of the holiday period. The Commission concluded that while Ms Riazi’s circumstances were unfortunate, they did not constitute exceptional circumstances warranting an extension of time.

The Commission ultimately determined that the application for an extension of time was not justified. Ms Riazi’s proactive steps in seeking legal advice were acknowledged, but the miscalculation by her legal representative, while regrettable, did not sufficiently establish exceptional circumstances under section 366(2) of the Act. Additionally, the Commission found that the time of year, while inconvenient, did not independently constitute exceptional circumstances. Consequently, the Commission dismissed the application for an extension of time to lodge the general protections claim.