Federal Court of Australia

Wilson v Victorian Aboriginal Child and Community Agency [2025] FCA 559

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth), the time within which the originating application in this proceeding may be filed is extended up to and including 7 January 2025.

2.    Costs reserved.

3.    The parties to jointly provide proposed orders for the next steps in this proceeding, or request a case management hearing, by 13 June 2025.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BENNETT J:

introduction

1    On 7 January 2025, the Applicant filed an originating application under the Fair Work Act 2009 (Cth) (the FW Act) alleging dismissal in contravention of the general protections provisions in Part 3-1 of the FW Act. She received a certificate issued under s 368(3)(a) of the FW Act by the Fair Work Commission (FWC) on 6 December 2024, which was filed with the originating application.

2    Section 370(a)(ii) provides that a person who is entitled to apply under s 365 for the FWC to deal with a dispute must not make a “general protections court application” in relation to the dispute unless it is made within 14 days of the certificate being issued under s 368(3)(a), or within such period as the court allows on an application made after those 14 days.

3    The certificate in this instance was issued on 6 December 2024, so that the 14 day period ended on 20 December 2024.

4    Accordingly, an extension of time is required to permit the application to be filed 18 days late. The Applicant is not entitled to bring the proceeding unless an extension of time is granted under s 370(a)(ii). The application for an extension of time is opposed.

5    The Applicant filed affidavits on 15 January 2025 and 14 March 2025.

6    The Respondents rely upon two affidavits of Ms Saskia Sale, the solicitor for the Respondents, dated 28 March 2025 and 22 May 2025. Each party has filed submissions.

background

7    On 23 April 2024, a written offer of full time employment was made to Ms Lyndsey Wilson at the Victorian Aboriginal Child and Community Agency (VACCA). The employment contract included a term for a probationary period of 6 months. The letter of appointment said that the probationary period was “to allow you [Ms Wilson] and VACCA to assess suitability for the position” and during which either Ms Wilson or VACCA could terminate the Applicant’s employment on written notice.

8    The Applicant’s employment commenced on 6 May 2024. It ceased on 10 September 2024 (during the probationary period).

9    There was a three month probation review held on 22 August 2024, the substance of which was disputed by the Applicant.

10    Before the probationary period concluded, on 10 July 2024, there was a discussion between the Applicant and the Second Respondent, an individual who also worked for the First Respondent. This discussion followed from a complex client interaction which occurred on 9 July 2024 and continued into the same evening. The Applicant said in oral submissions that there was a phone call in the morning of 10 July from that colleague, which Ms Wilson believed would be in the nature of a “debrief” about the complex case from the day before. She said that something occurred in the course of that meeting which led to tension. The Applicant said she was unclear how it happened, however it is plain that the exchange was primarily about the way that a client was managed, and that this exchange went poorly for all concerned. It led to a breakdown in the relationship.

11    The Applicant primarily relates the adverse action that followed to the phone call on the morning of 10 July.

12    The types of conduct which she asserts followed included:

(1)    repeated refusal by supervisors of requests for meetings or calls;

(2)    being allocated excessive and unreasonable case loads of complex cases while refusing to allow consultation with other practitioners, failing to allow case closures and other matters of a similar kind;

(3)    not being provided with a fire safety plan;

(4)    a denial of training;

(5)    a denial of stress leave;

(6)    a denial of a complaints procedure;

(7)    an unreasonable delay in provision of reasonable office adjustment (in the form of an ergonomic chair) for a physical disability and complaints concerning being “wheeled around” the office in a chair;

(8)    denial of employee representation at a meeting; and

(9)    discussion of Ms Wilson’s performance with a superior without her being present.

13    This conduct was said to be the result of the 10 July meeting.

14    The Respondents cite performance concerns as the reason for terminating her employment.

15    Ms Wilson lodged a general protections dismissal application with the FWC on 24 September 2024, to which VACCA responded on 10 October 2024. On 14 October 2024, Ms Wilson lodged an updated application. On 6 December the FWC issued a certificate under s 368(3)(a) of the FW Act.

16    On 20 December 2024, Ms Wilson attempted to lodge an application in this Court. The attempt was rejected by the Registry on the basis that she had used the incorrect form. Ms Wilson informally requested that the Registry grant an extension of time that day, being aware it was the last day for filing.

17    On 21 December 2024, Ms Wilson was admitted to Frankston Hospital for “profuse vomiting and electrolyte derangement” and she was not discharged until Christmas Eve. On 24 December, Registry responded to the Applicant’s query about an extension of time and provided her with the information about which forms that could be used. Ms Wilson says she spoke to someone from Registry and was told that the Court would resume normal operations on 7 January 2025. Ms Wilson then filed the application.

Relevant principles

18    The grant of leave under s 370(a)(ii) is discretionary. The Applicant bears the burden of satisfying me that grounds exist for exercising the discretion in her favour (Clarke v Service to Youth Council Inc [2013] FCA 1018 (Clarke) at [9] (White J)). It is relevant that the Parliament has elected to fix a short limitation period (Clarke at [9]; Chou v Digital61 Pty Ltd [2021] FCA 640 (Chou) at [8]-[9] (Abraham J)).

19    The principles applicable to an application of time are well known and have been identified by the parties. They were summarised by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300 (Brodie-Hanns) as follows:

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. 

20    In addition, it is appropriate for me to have regard to the statutory limitation period and its rationale while noting that specific provision has been made to enable me to ameliorate the harshness of such a limitation where the individual case requires it (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 (McHugh J, with whom Dawson J agreed)).

the factors

The delay and reason for the delay, contesting termination and prejudice

21    The delay is 18 days. The Applicant submits that is a short period and it is explained in a genuine way by her illness, admission to hospital and the time of year, covering the Christmas and new year period. The Respondents accept that the delay is reasonably short, and is largely explained by the Applicant’s illness and discussions with the Registry. She had otherwise actively contested her termination. The Respondents accept that there is little or no prejudice.

22    Accordingly the first three of the six factors identified in Brodie-Hanns at 299-300 weigh in favour of extension, to varying extents.

23    I place no weight on the fact that the Applicant waited until the end of the appeal period to attempt to file her appeal. The relevant fact is that she did attempt to do so within the prescribed period. Had she used the correct form to do so, then none of the present analysis of her case would be occurring, absent an application for summary determination by the Respondents.

The merits of the substantive application

24    A significant part of the argument in this application surrounds the merits of the substantive case.

25    This is a significant factor. As noted by Abraham J in Chou at [23]-[24]:  

The merits of the substantive application may be afforded significant weight. It cannot be in the interests of justice to extend time where the underlying proceedings have no ostensible merit and or no real prospects of success. To do otherwise would be to unnecessarily involve considerable additional resources being expended by the parties and the court. 

It may be said that meritorious factors that might go against the grant of an extension of time would be overshadowed by the fact that there is a highly meritorious case to be advanced. If, on the other hand, the court is of the view that there is a case that has very limited prospects of success, that also might legitimately persuade the decision maker not to accept other matters that might either go in favour of an applicant or be neutral.  

26    The Respondents say that the case that the Applicant seeks to advance is “less than clear” and I agree. In submissions in support of the present application the Applicant asserted that her claim could be summarised as follows:

Adverse action, Detrimental Damage to Reputation, Pain and suffering both mental and physical, serious breaches of privacy and malicious intent.

27    The Applicant submits that there is a sound basis for these allegations and that the material in the affidavits support the proposition that there is an arguable case that should be dealt with through the ordinary course at trial. In her reply submissions, the Applicant went into further detail asserting breaches of the general protections provisions of the kind set out at [12] above. In oral submissions, the Applicant asserted that the adverse action was taken because of or in response to the meeting of 10 July 2024. That meeting, in turn, was said to be connected with the approach taken to a complex case and the way it had been managed over the preceding day or so.

28    I have assumed facts in the Applicant’s favour for the purposes of this application. I have also taken into account that the Applicant is self-represented and so lacks familiarity with some of the concepts relevant to the application.

29    The key issue is whether or not the Applicant has identified an arguable case for a breach of the general protections obligations in s 340 of the FW Act. There was also a suggestion of discrimination on the basis of physical disability under s 351, but the Applicant did not, at this stage, seek to draw any link between any such discrimination and the adverse action taken. The Respondents argue (with some force) that the Applicant has not identified a workplace right that led to the adverse action. Section 341 defines a workplace right in the following way:

A person has a workplace right if the person:

(a)     is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee—in relation to his or her employment.

30    It is said by the Respondents that the way that the 10 July conversation is discussed does not disclose the exercise of a “workplace right” and thus any action taken based on the 10 July conversation is not adverse action “because of” the exercise of a workplace right. If the matter were to proceed, the presumption in s 361 of the FW Act would apply.

31    The remedy sought by the Applicant is limited to an (unspecified) form of acknowledgment of wrongdoing by the Respondents, and an injunction connected with asserted breaches of privacy which were said to have been identified after she had left employment with the First Respondent. Through the originating application, the Applicant sought “Compensation for incurred fees and for undue stress caused/or Reinstatement”. The Applicant made clear orally that she does not press any claim for compensation or reinstatement although foreshadowed a potential claim for costs. She outlines a range of complaints about the operation of the workplace which she says resulted from the 10 July meeting.

32    In Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31] (Gray, Cowdroy and Reeves JJ) it was noted that:

A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.

33    The Respondents raised the concern that the Applicant’s material suggests an attempt to litigate an unfair dismissal claim as a general protections claim, or to otherwise ventilate a large range of grievances without linking them to the statutory framework available to her.

34    It may be that the case as it is presently articulated by the Applicant is not strong. There is force in the notion that it is difficult to identify a workplace right for the purposes of s 340 of the FW Act. However, I am conscious that it is early in the proceeding, and the material has not been fully articulated in a way that it would be at a final hearing. I am likewise conscious of the disadvantages faced by a self-represented litigant. There are some matters in the affidavit material which could ultimately be characterised as workplace rights – however at this preliminary stage it is not appropriate for me to highlight or refer to those matters. If the matter were to proceed, it would do so on the basis that there is a reverse onus. Moreover, there is evidence that has been put before me about alleged shortcomings in the work of the Applicant. These are all contested, and it is not appropriate for me to determine on an application of this kind.

35    In the context of the very good reasons for her failure to file the extension application, and the lack of prejudice occasioned by the delay, I consider it is in the interests of fairness to permit the matter to proceed. I reach this conclusion despite the reservations that I have expressed in relation to the merits of the matter.

36    In so concluding, I have given consideration to the burden that will be cast upon all parties if they are required to contest the broad range of factual matters that have been foreshadowed. Ultimately, these are matters that will need to be addressed through careful case management and do not operate to shift the analysis called for by the authorities.

Conclusion

37    Despite the helpful and articulate submissions on behalf of the Respondents, I have decided to permit the extension of time. I will make orders for the matter to proceed after hearing from the parties as to the proposed next steps.

Associate:

Dated:    3 June 2025