1 Fair Work Act 2009 s.365—General protections Rowena Olsen v Lynas Services Pty Ltd (C2024/5422) DEPUTY PRESIDENT BEAUMONT PERTH, 9 OCTOBER 2024 General protections dismissal dispute - application filed out of time – circumstances exceptional – extension of time for filing allowed 1. Introduction [1] This decision concerns an application made by Ms Rowena Olsen (the Applicant) for the Fair Work Commission to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). Section 366 requires that the application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2). Lynas Services Pty Ltd (the Respondent) objected to the application on the basis that it was filed outside the 21-day period prescribed by s 366(1). [2] The Applicant concedes her application was filed on 4 August 2024 and was therefore submitted three days after the statutory deadline. The Applicant states that her legal representative had advised her that the timeframe for making her application was 28 days and not 21 days and, in that respect, relies predominantly upon representative error as the reason for the delay. [3] For the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 366(2) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following: (a) the reason for the delay; and (b) any action taken by the Applicant to dispute the dismissal; and (c) prejudice to the employer (including prejudice caused by the delay); and (d) the merits of the application; and (e) fairness as between the Applicant and other persons in a similar position.1 [2024] FWC 2822 DECISION [2024] FWC 2822 2 [4] The issue before me is whether the circumstances are exceptional and, if they are, whether it is fair and equitable for an extension to be granted. 2. Background [5] The broader context and events leading to the conclusion of the employment were as follows. [6] Lynas Rare Earths Ltd (Lynas) is an Australian publicly listed company with headquarters in Perth, and operations in Australia, Malaysia and the United States of America. Within Australia, Lynas has three entities which have employees, one of which is Lynas Services Pty Ltd, the Respondent. The Respondent provides support and corporate functions, presumedly to the group. [7] According to Ms Mhairi Dunbar, People and Cultural Manager of the Respondent, Lynas is the only significant producer of separated rare earths outside of China and sources feedstock from its high-grade, long-life Mt Weld rare earths deposit in Western Australia. That feedstock is then processed and separated at its company-owned advanced materials plant in Malaysia.2 [8] Ms Dunbar said that Lynas is regularly required to engage with various external parties and agencies, including government departments, regardless of the political party that is in power at any given time.3 [9] In order to manage these engagements, the Respondent employed an External Relations Manager.4 The role of the External Relations Manager encompasses the development and execution of community, media and government relations strategies to support the Kalgoorlie and Mt Weld operations.5 [10] The Applicant states that she commenced employment with the Respondent on, or around, 23 April 2021, in the full-time position of External Relations Manager, based in Kalgoorlie.6 Whilst little turns on this point, the Respondent states the Applicant commenced in her position on 3 May 2021. [11] The Applicant said she was endorsed as a Liberal candidate on 15 June 2024, with the election for which she is to stand set for 8 March 2025.7 The Applicant further noted that her role as a candidate did not involve activities during the hours of her employment.8 [12] Ms Dunbar said that on 9 February 2024, the VP of Corporate Affairs of the Respondent, Ms Parker, sent her an email and drew her attention to an article published in The West Australian newspaper, which referred to the Applicant’s potential electoral candidacy for the seat of Kalgoorlie.9 Ms Dunbar said that Ms Parker informed her that she asked the Applicant to contact her to discuss the article.10 [13] A further article was published in The West Australian about the Applicant’s potential candidacy on 24 June 2024 and on 29 April 2024, Ms Dunbar, Ms Parker and the Applicant discussed the Applicant’s potential preselection.11 [2024] FWC 2822 3 [14] The Applicant sent an email to the General Counsel of the Respondent and Ms Parker on 29 April 2024 notifying them of a potential conflict of interest arising out of her application for preselection.12 [15] On 2 May 2024, Ms Parker informed the Applicant in writing of temporary mitigation measures that would be put in place to protect Lynas and the Applicant from any suggestion of conflicts of interest.13 On that same day, the Applicant advised that the Liberal Party’s Selection Committee would be meeting on 22 May 2024 and that she would advise of the outcome.14 [16] On 23 May 2024, the Applicant notified the Respondent that she had been voted the Liberal Party’s candidate for Kalgoorlie, subject to the endorsement of State Council,15 and on that same day the Respondent stood down the Applicant on full pay with immediate effect.16 [17] By 17 June 2024, the Applicant’s preselection was endorsed by the Liberal Party’s State Council and later in the day on 17 June 2024, the Applicant was issued with a show cause letter.17 The show cause letter identified two areas of concern arising from the Applicant’s preselection: (a) the candidacy constituted an inherent conflict of interest as contemplated by Lynas’ Conflicts of Interest Policy; and (b) the position of electoral candidate was inconsistent with her duties and obligations under her employment contract. [18] A show cause meeting was conducted on 8 July 2024, and on 11 July 2024, a meeting was held to inform the Applicant of the outcome of the show cause process, namely that her employment was terminated, and she would be paid in lieu of her notice. [19] The Applicant said she was dismissed by letter of 11 July 2024. [20] The Applicant said that she spoke to her legal representative, Mr Tim Houweling, and he wrote a letter to the Respondent of 23 July 2024. [21] It appears, that by letter of 23 July 2024, Mr Houweling invited the Respondent to engage in settlement discussions and foreshadowed making a potential claim to the Commission on behalf of the Applicant.18 [22] According to the Applicant’s submissions, as prepared by her legal representative, it was in or around this time (23 July 2024) that Mr Houweling informed the Applicant that the time within which to make an application to the Commission was 28 days. [23] In her evidence, the Applicant states that at the time Mr Houweling invited a response from the Respondent, he also told her that she had 28 days within which to make an application to the Commission. The Applicant said that giving seven days to the Respondent to reply (presumedly to the letter of 23 July 2024) would have given her a little over a week to lodge any application to the Commission if that became necessary, given she expected a response (from the Respondent) by 30 July 2024. [24] By letter of 29 July 2024, the Respondent informed the Applicant that it did not agree to the settlement terms proposed and denied contravening the Act or the Equal Opportunity Act 1984 (WA) (EO Act).19 [2024] FWC 2822 4 [25] The Applicant said that upon receipt of the Respondent’s response to the letter inviting settlement, she contacted her legal representative on 29 July 2024. However, the Applicant’s submissions outline that at the time the Applicant called the legal representative on 29 July 2024, the legal representative was dealing with an urgent case that had been allocated in court for a disadvantaged person and for which the legal representative had been assigned as counsel.20 [26] The Applicant states that she did not speak to her solicitor in the period 30 July to 1 August 2024, as he was dealing with an urgent matter that he had been requested to stand in as counsel for in the trial.21 However, the Applicant clarified that she did place a call to Mr Houweling but ultimately did not speak to him until 4 August 2024.22 [27] The Applicant said that on speaking to Mr Houweling on 4 August 2024, he informed her that his understanding of the 28 day period was wrong and that the time for filing was in fact 21 days.23 [28] The Applicant said that she ‘…immediately attended and rectified the circumstance by filing the application that day, being 4 August 2024’.24 [29] During the course of the hearing, the Applicant disclosed that three years prior to her dismissal she was diagnosed with a medical condition which, whilst initially receptive to conservative treatment, ultimately required surgery, with the condition having been exacerbated in May 2024. On 7 May 2024, the Applicant was advised that her surgery was scheduled for 13 August 2024. The Applicant gave evidence that she was under significant pressure confronting the surgery. The evidence provided suggests the surgery was a success. 3. Extension of time [30] Under s 366(2) of the Act, the Commission has the power to extend the time within which an application for a general protections dismissal dispute can be made. In Tamu v Australia for UNHCR,25 a Full Bench of the Commission summarised the relevant principles to have regard to in applications of this kind: [16] Section 366(1) provides that a general protections application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2). The 21 day period prescribed in section 366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day. [17] Section 366(2) of the Act sets out the circumstances in which the Commission may grant an extension of time as follows: “(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) any action taken by the person to dispute the dismissal; and (c) prejudice to the employer (including prejudice caused by the delay); and [2024] FWC 2822 5 (d) the merits of the application; and (e) fairness as between the person and other persons in a like position.” [18] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. A decision whether to extend time under section 366(2) involves the exercise of a discretion. [19] The meaning of “exceptional circumstances” in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty),26 as follows: “[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. [14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.” [20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.’ (footnotes omitted) [31] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (Stogiannidis),27 a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers,28 which had concluded that for ‘exceptional circumstances’ to be established, an applicant must provide reasons for the whole of the period of delay. In Stogiannidis the Full Bench expressed: [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 [2024] FWC 2822 6 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. [40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay. [32] At the commencement of the hearing, the parties were referred to s 366(2) of the Act. Both were invited to make any further submissions in relation to the question of whether there were ‘exceptional circumstances’ by reference to those factors at paragraph [3] of this decision. Each of these factors are considered below and were outlined to the parties before the hearing. 3.1 Reason for the delay [33] The Act does not specify what reason for delay might tell in favour of granting an extension.29 However, decisions of the Commission have referred to an acceptable or reasonable explanation.30 The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances. A credible explanation for the entirety of the delay will usually weigh in the applicant’s favour however, all of the circumstances must be considered.31 [34] The relevant period required to be considered under s 366(1)(a) is the period after the 21-day timeframe for lodging the application.32 However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.33 [35] The Applicant essentially relies on two matters as reasons for the delay in lodging her application. The predominant reason, that is, the one referred to in her written materials, was the Applicant’s reliance on incorrect advice from her legal representative. The second, which was not referred to in the Applicant’s materials but was raised at hearing, was that the Applicant had been experiencing stress concerning her impending surgery, scheduled for 13 August 2024. [36] Prior to the hearing the Applicant’s legal representative, Mr Houweling, notified Chambers that he would be appearing on behalf of the Applicant. In response, the Respondent’s legal representative informed the Commission on Friday, 13 September 2024, that whilst the Respondent did not oppose permission being granted to the Applicant, it noted that the Applicant had not filed submissions in support of permission being granted and had not sought leave to file such submissions outside of the time prescribed by my directions. [37] The Respondent submitted that should the Applicant proceed with seeking permission, it expected that Mr Houweling would seek to make an oral application at the commencement of the hearing, and whilst it did not wish to express a view on whether the application for permission should be entertained, it did wish to draw attention to observations made in prior [2024] FWC 2822 7 decisions of the Commission. First, the Respondent referred to the Full Bench decision in Mangos v Qantas Airways Limited34 and second to the observations of the Senior Deputy President in Ozebek v Airport Fuel Services Pty Ltd.35 Both decisions traverse the potential conflict of interest that may arise if a legal representative whose error is said to have caused the delay in making an application, then appears on behalf of the applicant. [38] In respect of the potential conflict of interest issue raised by the Respondent, the Applicant sought to be represented by different counsel for the purpose of the hearing. Permission was granted to both parties to be represented, with reasons provided on transcript. It is noted that Mr Houweling, despite filing written submissions in support of the Applicant’s case, was not called by the Applicant as a witness. It is further noted that counsel for the Applicant, who subsequently took carriage of the matter after Mr Houweling’s withdrawal, had not long had the file. [39] In Robinson v Interstate Transport Pty Ltd, the Full Bench expressed the following in respect of representative error: … We think that representative error, in circumstances where the Applicant was blameless would constitute exceptional circumstances under s.366(2), subject to consideration of statutory considerations in ss3.66(2)(b) to (e) of the Act.36 [40] Clearly, a number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application.37 [41] In McConnell v A & PM Fornataro,38 a Full Bench decision that considered an out of time application under s 365 of the Act, it was said by the majority: Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms: (i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged. (ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant. (iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exits where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged. [2024] FWC 2822 8 (iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.39 [42] It is not necessary for an applicant to demonstrate that they were ‘blameless’ for the delay in filing an application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion.40 For example, where an applicant has given clear and timely instructions to their representative to file their application, the applicant is generally entitled to rely on the representative to carry out those instructions.41 [43] However, as was said by the Full Bench in Long v Keolis Downer, ‘an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by.’42 [44] The Applicant, in part, attributes the delay in lodging her application to the incorrect legal advice she received from Mr Houweling with respect to the statutory timeframe for lodging the application. The Applicant alleges that on or around 23 July 2024, she was erroneously advised by her legal representative that the relevant time limit for making an application was 28 days from the date the dismissal took effect. [45] However, the Respondent pressed that the Commission should not accept the Applicant’s evidence with respect to the advice she claims to have received from Mr Houweling, for two reasons. [46] First, that Mr Houweling was unaware of the correct timeframe for making an application under s 365 of the Act did not align with Mr Houweling and Cornerstone Legal (the firm from which Mr Houweling operated) having been involved in recent proceedings under s 365 of the Act, in the Commission. [47] The Respondent referred the Commission to the decision in O’Hurley v Cornerstone Legal WA Pty Ltd (O’Hurley) where Commissioner Schneider held that Cornerstone Legal ‘dismissed’ Mr O’Hurley, and accordingly dismissed Cornerstone Legal’s jurisdictional objection to Mr O’Hurley’s s 365 application.43 In the decision, the Commissioner noted that Mr Houweling, a Director of Cornerstone Legal, gave evidence on the firm’s behalf.44 The Respondent advanced that the facts before the Commission were similar to those in Ryan v Anglican Aged Care Services Group45 in three key respects, namely: a) Ms Ryan’s evidence of alleged instances of representational error was uncorroborated by any evidence of her representative,46 just as the Applicant’s evidence is unsupported by any evidence of Mr Houweling; b) Ms Ryan’s representative, who was said to have engaged in the representational error, was on the record for the proceedings in relation to the extension of time, just as Mr Houweling remains on the record for these proceedings; c) the circumstances were such the Deputy President doubted the applicant’s evidence,47 just as the Commission should doubt the Applicant’s evidence in light of Mr Houweling’s involvement in the O’Hurley proceedings. [48] Second, the Respondent contended that the Commission should not accept the Applicant’s evidence because it was not supported by any evidence of Mr Houweling. [2024] FWC 2822 9 [49] Regarding the Respondent’s first contention, Counsel for the Applicant submitted that the Respondent’s submissions were flawed, because in O’Hurley the jurisdictional objection was whether there was a dismissal. In that case, Mr Houweling was a witness for the Respondent and was not a named solicitor on the file (another director of the Respondent was). The Applicant submitted to the effect that just because Mr Houweling was a lawyer who was a witness in the O’Hurley case, this would not necessarily mean he was cognisant of the statutory period for making an application under s 365 of the Act. [50] Briefly stated, I consider it a long bow to draw to suggest that Mr Houweling’s involvement in O’Hurley meant that he could not have been unaware of the correct timeframe for making an application under s 365 of the Act. As identified by Counsel, Mr Houweling was a witness to the matter in O’Hurley and the issue in contention concerned the fact of a dismissal, not the statutory timeframe for the making of an application under s 365 of the Act. It is therefore not open to make a finding that Mr Houweling’s involvement as a witness in O’Hurley in turn meant his purported error was somehow unaligned with the Applicant’s evidence that she had been informed by him that the time for making her application was 28 days. [51] In respect of the second argument, the Respondent submitted that the Commission should not lightly impugn the reputation of a legal practitioner in the absence of clear acknowledgement from them that they have erred, or a satisfactory explanation why such acknowledgement is not forthcoming.48 The Respondent noted that Mr Houweling had not given any evidence in the matter, let alone any acknowledgment he erred, nor had the Applicant proffered any explanation why such an acknowledgment has not been proffered. [52] In support of the proposition that the Commission should exercise caution in accepting uncorroborated evidence of an applicant who asserts representative error or the receipt of incorrect legal advice, the Respondent drew support from the decisions of Sallantioglu v Greer Industries Pty Ltd49 and, as noted, Ryan.50 [53] In respect of the Respondent’s argument that the Applicant’s uncorroborated evidence of representative error should not be accepted, counsel for the Applicant submitted that the written submissions prepared by Mr Houweling and signed by Mr Houweling were on the Commission’s file, and that Mr Houweling conceded that it was his mistake that led to the late filing of the application and not the error of the Applicant. [54] In Morrison v Judd [10 October 1995, unreported], a case before the New South Wales Court of Appeal, cited in the decision of the Full Bench in Mangos and Others v Qantas Airways Limited51 (Mangos), Kirby P, with whom Meagher and Powell JJA agreed, said: One of the dangers of the continued involvement in a case of legal practitioners who are arguably in default is that there may sometimes be a disinclination to offer evidence completely exculpating the client and inculpating the legal practitioners. Yet such evidence might be in the client’s own interest. I do not say that this occurred in the present case for the Court has no knowledge of what happened. It is enough to point out that there is such a risk as requires the severance of the professional relationship once the potential claim against a legal practitioner is identified. When default of the kind that has apparently occurred here is revealed, it is the duty of the legal practitioners involved to draw it frankly to the attention of the client and, in my view, to suggest [2024] FWC 2822 10 to the client that he or she should secure different legal representation. At the very least, the client should be aware of the fact that one possibility which must be contemplated is the prosecution of a claim against the legal practitioners who are in default. [55] In Mangos it was concluded that it would generally be appropriate for the Commission, when hearing an application for an extension of time by a representative who had made an error, to satisfy itself that full disclosure is made.52 [56] In this case, whilst counsel for the Applicant places weight on the signed written submissions of the Respondent that were prepared and signed by Mr Houweling, it remains that Mr Houweling did not give evidence in the matter and as a consequence was not available for cross examination. [57] Clearly, Mr Houweling opted not to represent the Applicant for the purpose of the hearing. His decision not to do so appeared premised, at least in part, on the Respondent having placed him on notice of the potential conflict in interest. Whilst Mr Houweling’s decision not to represent the Applicant was plausibly explained, his absence as a witness was not adequately detailed. However, no criticism can be levelled toward counsel for the Applicant in this respect, who was placed in the unenviable position of being briefed just prior to the hearing. Further, it was apparent that the Applicant was not versed in the law and understandably was not positioned to make submissions on the issue or to have had the forethought to call Mr Houweling as a witness. [58] Nevertheless, the evidence before the Commission is the Applicant’s account that her legal representative fell into error and, in addition, there are the submissions of the Applicant prepared by the legal representative who had purportedly fallen into error and conceded the same in those submissions. The evidence and the submissions pressed, are to be considered in context, and I note that counsel for the Applicant, having a duty to this Commission, would not, in my view, present the submissions of the Applicant as having been prepared by Mr Houweling in circumstances where they were not. [59] The Applicant was notified of her dismissal on 11 July 2024. By email dated 23 July 2024, Mr Houweling wrote to the Respondent on behalf of the Applicant to foreshadow taking action against the Respondent in circumstances where the Applicant did not hear from the company within seven days concerning the settlement offer she had advanced. [60] The Applicant gave evidence that it was at this time, that is the time Mr Houweling sent the letter of 23 July 2024 to the Respondent, that Mr Houweling advised her that the timeframe for applying under s 365 of the Act, was 28 days. [61] In her evidence, Ms Dunbar states that the General Counsel for the Respondent sent a letter replying to Mr Houweling on 29 July 2024. [62] In the Applicant’s written submissions, prepared by Mr Houweling, the submission is made that upon receipt of the Respondent’s response to the invitation to settle, the Applicant contacted the solicitor on 29 July 2024, but at that time the solicitor, presumedly Mr Houweling, had been allocated in court to an urgent case. [2024] FWC 2822 11 [63] In her witness statement, the Applicant states that late on 29 July 2024, the Respondent responded to her solicitor’s letter of 23 July 2024 and rejected any claim or offer to settle the claim. Thereafter, the Applicant states that she did not speak to Mr Houweling in the period 30 July 2024 to 1 August 2024, although she did place ‘a call to him’. At hearing, the Applicant was unable to say whether she placed more than one call to Mr Houweling. [64] It appears on the evidence, although it is not entirely clear, that the letter from the Respondent’s General Counsel was sent only to Mr Houweling. Therefore, it is open to infer that at some point in the week of 29 July 2024, the letter was forwarded by, or on behalf of, Mr Houweling to the Applicant’s attention. In short, the explanation proffered appears to be that the Applicant received the Respondent’s letter of 29 July 2024 and on its receipt, she was unable to communicate with Mr Houweling until 4 August 2024, due to Mr Houweling’s court commitments. I accept the Applicant’s evidence that she placed a call to Mr Houweling after the receipt of the Respondent’s letter of 29 July 2024. [65] Having considered the evidence and submissions of both parties, I accept that as of 23 July 2024, the Applicant was operating under incorrect legal advice that the time for submitting her application was 28 days from the date her dismissal took effect. I am of the view that the Applicant had been candid when stating that she had been incorrectly advised by Mr Houweling concerning the statutory timeframe. [66] On balance, I am also satisfied that the Applicant only placed one call to Mr Houweling in the period of 29 July to 4 August 2024. However, I accept that in this period, the Applicant was not imbued with a sense of urgency in respect to speaking to Mr Houweling or for that matter making her application, because she was operating under the misapprehension of a 28- day timeframe, not a 21-day timeframe. I further accept that, on becoming aware that she had been informed of the incorrect timeframe, the Applicant had, herself, taken steps to ensure the prompt lodgement of her application. That is, the Applicant acted with a sense of urgency once aware that she had been misinformed. [67] Whilst the Applicant submitted that the delay in lodging her application was short, being only one business day late (albeit a delay of three calendar days), this contention does not assist her. The brevity of the delay does not provide an explanation for the delay and does not render the circumstances exceptional.53 [68] At hearing, Counsel for the Applicant noted that during the delay period, the Applicant was awaiting significant surgery, and that this information had not been included in the Applicant’s witness statement, as the Applicant considered the information personal and private. It is apparent that the Applicant advanced her medical condition as a reason for the delay. [69] On 24 September 2024, directions issued to the parties that allowed the Applicant to adduce evidence regarding her medical condition and for the Respondent to reply to the same. [70] The Applicant’s supplementary evidence supported her medical condition, the date listed for her surgery, and the symptomology as disclosed by the Applicant. Whilst I am not persuaded that the Applicant’s medical condition directly gave reason for the period of the delay or part of the period of the delay, I do consider that it provides a cogent reason for why the [2024] FWC 2822 12 Applicant engaged, and unquestioningly relied upon, the advice of her legal representative post her dismissal. [71] The Respondent pressed that the Applicant’s surgery occurred nine days after she filed her application with the Commission. Further, the Respondent observed that the Applicant’s evidence did not establish that she was incapacitated prior to the surgery, to the extent that she was unable to attend to filing her application in a timely manner. The Respondent submitted that following her dismissal, the Applicant was sufficiently fit to instruct Mr Houweling to write to the Respondent to propose a settlement offer, to file her application on 4 August 2024, and to carry out campaigning activities during the period between her dismissal and her surgery. With respect to the campaigning activities, the Respondent referred to six postings on the Applicant’s public Facebook page. [72] The Respondent referred the Commission to the decisions of this Commission in Bayman v State Super Financial Services Australia Limited54 (Bayman) and Braack v Farmhouse Furniture Australia P/L55 in respect of an argument that the delay in lodgement was occasioned by incapacity. In Bayman, a decision that dealt with an extension of time request in the context of an unfair dismissal application, the Commissioner expressed that worry or concern about an upcoming surgical procedure is something that is regularly, or routinely, or normally encountered and therefore did not consider worry or concern about an upcoming surgery a credible reason for the delay.56 However, the proposition in Bayman is particular to the facts in that case and whilst not drawing an arbitrary line between significant or insignificant surgery as all surgery carries a risk and because people are notoriously idiosyncratic in their response to medical events, the Applicant was not undergoing a laparoscopy. Given the proposed surgical intervention confronting the Applicant post her dismissal and during the period of the delay, I am satisfied that the Applicant’s expression of stress is to be believed and that it was reasonable for the Applicant to have unquestioningly relied upon the legal advice she received. I find that the delay in the Applicant lodging her application was not occasioned by her conduct. [73] I have considered the delay as the period beyond the 21-day period. However, regard has been had to the circumstances from the date the dismissal took effect. I am satisfied that the Applicant has made out an acceptable or reasonable explanation for the whole period of the delay in lodging her application. This weighs toward a finding that there are exceptional circumstances. 3.2 Action taken to dispute the dismissal [74] Action taken by the employee to contest the dismissal, other than lodging a general protections dismissal dispute, may favour granting an extension of time.57 I have considered all submissions and the evidence in this respect. [75] The letter of 23 July 2024 from Mr Houweling on behalf of the Applicant to the Respondent’s General Counsel disputes the Applicant’s dismissal and places the Respondent on notice that the Applicant considered the Respondent had acted unlawfully by dismissing her and that this gave rise to a general protections claim being open to the Applicant. The letter further informs that the Applicant will commence action without further notice, in circumstances where the Respondent is not heard from within seven days. Whilst the [2024] FWC 2822 13 Respondent was heard from within the period stipulated in the letter of 23 July 2024, and whilst the period of delay did not commence until 2 August 2024, I am nevertheless satisfied that the Respondent was placed on notice of the possibility of the Applicant making a general protections application pursuant to s 365 of the Act before it was made.58 [76] I consider there to be sufficient evidence to find that the Applicant challenged her dismissal. This weighs toward a finding of exceptional circumstances. 3.3 What is the prejudice to the employer [77] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. In the circumstances I consider this criterion as a neutral factor. 3.4 Merits of the application [78] The Act requires me to consider the merits of the application in considering whether to extend time. [79] In Nulty the Full Bench of the then Fair Work Australia considered the principles applicable to the extension of time discretion under s 366 of the Act. In that case the Full Bench said in respect to the merits of an application: [36] It ought be regarded as well established that on an extension of time hearing it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d). [80] In Telstra-Network Technology Group v Kornicki,59 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application: If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.60 [81] In the Applicant’s application, she simply states that Part 3-1 of the Act has been contravened and provides: Political opinion (s 351) I became a member of a political part and was then dismissed. [82] In the Applicant’s submissions she states that ‘[t]here is a real issue to be tried, this case deals with dismissal ostensibly on the basis of the Applicants [sic] membership of a Political Party that is put as if it is dismissal for a conflict of interest.’ [2024] FWC 2822 14 [83] It is uncontroversial that s 351(1) of the Act sets out that an employer must not take adverse action against a person who is an employee because of the person’s political opinion. The Respondent appropriately concedes that it took adverse action against the Applicant when it ‘dismissed’ her,61 but adds that whilst it can be readily inferred that the Applicant’s political opinion was causally connected to the decision to dismiss her, this does not establish that her dismissal was ‘because of’ her political opinion. The inquiry thrown up by s 351(1), said the Respondent, is not one concerned with causation but, rather, the subjective reasons for action of the decision-maker.62 [84] When considering s 351(1) of the Act, the terms of s 351(2) read with subsection (3) must be applied. Those provisions expressly pick up the detailed regimes of each of the territory, state and federal anti-discrimination statutes. It has been said that the purpose of s 351(2)-(3) is simply to ensure that conduct which would not contravene the general anti- discrimination laws, equally does not contravene the Act and thereby avoids a result whereby the Act imposes more onerous obligations upon an employer than those already imposed upon the employer under general anti-discrimination laws.63 However, the converse is said not to be not true. It does not follow that conduct which contravenes general anti-discrimination laws thereby also contravenes s 351(1) of the Act.64 [85] At hearing, Counsel for the Applicant referred to the EO Act, noting that it proscribes discrimination against another person on the ground of political conviction, and that there is perhaps an issue as to whether ‘political conviction’ and ‘political opinion’ are one and the same. [86] Part IV of the EO Act addresses discrimination and whilst the Applicant asserts a contravention of s 351 of the Act, it is not clear that she asserts that the adverse action taken was that falling under s 341 item 1(d), insofar as that is relevant. When read as a whole, s 351 and s 342(1) item 1(d) will operate to render only conduct proscribed under other anti- discrimination regimes as conduct contravening s 351.65 Section 342(1) item 1(d) refers to adverse action in the form of discrimination between the employee and other employees of the employer. Again, it is not apparent that the Applicant asserts that the adverse action taken was discrimination. [87] Notwithstanding this, I accept that the Applicant’s application is not without merit, noting that consideration would need to be given to the term ‘political opinion’ as referred to in s 351 of the Act and the carve outs in s 351(2), particularly subsection (b), given the evidence pressed by each party at this interlocutory stage. On this point, it is accepted that evidence on the merits is rarely called at an extension of time hearing. As a result, it is ‘not appropriate for the Commission to resolve contested issues of fact going to the ultimate merits’ for the purpose of determining whether to grant an extension of time under s 366(2).66 This of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. It is for these reasons that I have concluded this factor to be one that is neutral. [2024] FWC 2822 15 3.5 Fairness as between the person and other persons in a similar position [88] The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm (Morphett), where it was said: [C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.67 [89] The Commission’s consideration of the factor under s 366(2)(e) is concerned with the consistent application of principles in applications of this kind.68 In cases where representational error is established and the applicant is blameless, this factor would typically weigh in favour of a finding of exceptional circumstances.69 [90] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to this type of application. However, cases of this kind will generally turn on their own facts. [91] The Respondent pressed that the Commission should not be satisfied that the late lodgement of the application was occasioned by representative error, and again drew support from the decisions it had referred to in its submissions. The decisions referred to by the parties have been considered and the principles of law applied. For the reasons given the Respondent’s submission cannot be sustained. 4. Conclusion [92] The conclusion as to the existence of exceptional circumstances will turn on a consideration of all the relevant matters and the assignment of appropriate weight to each. [93] In the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am, on balance, satisfied that there are exceptional circumstances as contemplated by s 366(2) of the Act and furthermore, that it would be fair and equitable that time should be extended. [94] I therefore extend the time for lodging an application to 4 August 2024. The matter will be programmed for a conference. [2024] FWC 2822 16 DEPUTY PRESIDENT Appearances: M Saraceni of Francis Burt Chambers for the Applicant. R Olsen, Applicant. R Boothman and T Ford of Corrs Chambers Westgarth for the Respondent. M Dunbar, of the Respondent. Hearing details: 2024. Perth, by Video using Microsoft Teams: 16 September. Final written submissions: 2 October 2024. Printed by authority of the Commonwealth Government Printer <PR780107> 1 Fair Work Act 2009 (Cth) s 366(2). 2 Witness Statement of Rowena Olsen (Olsen Statement) [7]. 3 Witness Statement of Mhairi Elizabeth Dunbar (Dunbar Statement) [7]. 4 Ibid [9]. 5 Ibid [10]. 6 Olsen Statement (n 2) [1] and [2]. 7 Ibid [6]. 8 Ibid. 9 Dunbar Statement (n 3) [13]. 10 Ibid. 11 Ibid [15]. 12 Ibid [16], Annexure MD-5. 13 Dunbar Statement (n 3) [17]. 14 Ibid [18]. 15 Ibid [19]. 16 Ibid [20]. 17 Ibid [24]. 18 Olsen Statement (n 2), Annexure B. 19 Dunbar Statement (n3), Annexure MD-19. [2024] FWC 2822 17 20 Olsen Statement (n 2) [18]. 21 Ibid. 22 Ibid. 23 Ibid [19]. 24 Ibid [20]. 25 [2019] FWCFB 2384. 26 [2011] FWAFB 975 (Nulty). 27 [2018] FWCFB 901 (Stogiannidis). 28 (2010) 197 IR 403. 29 Aaron Pottenger v Department of Caffeine T/A Two Feet First [2018] FWC 3403. 30 Stogiannidis (n 27) [17]. 31 Ibid [39]. 32 Long v Keolis Downer (2018) 279 IR 361 (Long), 371 [40]. 33 Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12]. 34 [2001] AIRC 97 (Mangos) [18]–[21]. 35 [2003] AIRC 1327 [29]. 36 Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728 [24]. 37 See, eg, Davidson v Aboriginal & Island Child Care Agency (1998) 105 IR 1; Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347; Qantas Ground Services Pty Ltd v Rogers [2019] FWCFB 2759 (Rogers); Melios v Qantas Airways Ltd [2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd [2011] FWA 2802; Long (n 32). 38 (2011) 202 IR 59. 39 Ibid 65 [35]. 40 Rogers (n 37) [17]; Long (n 32). 41 Qantas Ground Services Pty Ltd v Rogers [2019] FWCFB 2759; Donohoe v QuickComms Australia Pty Ltd [2020] FWCFB 5426. 42 Long (n 32) 375 [60]. 43 O’Hurley v Cornerstone Legal WA Pty Ltd [2024] FWC 1776. 44 Ibid [15], [20], [27]–[42]. 45 [2001] AIRC 1307 (Ryan) [23]–[24]. 46 Ibid [24]. 47 Ibid. 48 Carlile v State of Queensland (Department of Resources) [2023] QIRC 111 [32], citing Dickson v Mornington Shire Council [2020] QIRC 106 [49]–[52]. 49 [2004] AIRC 668 [28]. 50 Ryan (n 45) [23]–[24]. 51 Mangos (n 34). 52 Ibid [21]. 53 Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479 [21]; Peters v Liquorland (Australia) Pty Ltd [2024] FWC 1867 [36]–[37]. 54 [2017] FWC 2446 (Bayman). 55 [2018] FWC 7513 [14]. 56 Bayman (n 54) [14]. 57 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300. 58 GHD Pty Ltd T/A GHD v Kevin Alan Black [2023] FWCFB 38. 59 (1997) 140 IR 1. [2024] FWC 2822 18 60 Ibid 11. 61 Fair Work Act 2009 (Cth) s 342(1) item 1(a). 62 Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 [91] (Perram J), citing Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243. 63 Railpro Services Pty Ltd v Flavel (2015) 242 FCR 424. 64 Ibid. 65 Sayed v CFMEU (2015) 327 ALR 460. 66 Nulty (n 26) [36]. 67 [2015] FWC 8885 [29]. 68 GHD Pty Ltd v Black [2023] FWCFB 38 [94]. 69 See Todd v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 [42].