Federal Court of Australia

AXR54 v S.M Adams trading as Piper Alderman [2025] FCA 1509

ORDERS

THE COURT ORDERS THAT:

1.    The time for the applicant to bring her general protections claim in this Court be extended to 26 March 2025.

2.    There be a case management hearing on 27 January 2026 at which time the matter will be fixed for hearing and timetabling orders made.

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

REASONS FOR JUDGMENT

PERRAM J:

1    On 26 March 2025, the applicant filed an originating application seeking 61 separate prayers for relief under the provisions of the Fair Work Act 2009 (Cth) (the ‘FW Act’) against the respondents and a statement of claim. Some of the allegations made in the statement of claim relate to her dismissal from the first respondent’s employ whilst some of it does not (such as, for example, claims in negligence).

2    In relation to those parts of her claims that relate to her dismissal, the applicant had originally lodged an application with the Fair Work Commission (the ‘Commission’) (as was permitted by s 365 of the FW Act) (she also filed one relating to her non-dismissal claims but it has no relevance for present purposes). On 3 March 2025, the Commission certified that all reasonable attempts to settle the dismissal dispute had been or were likely to be unsuccessful. Once that certificate was issued the applicant was then free to commence a proceeding in this Court. However, s 370 of the FW Act required that application to be made within 14 days of the date of the certificate, i.e., 17 March 2025. The applicant was therefore nine days out of time. She now seeks the necessary extension under s 370 with retrospective effect. Section 370 provides:

370  Taking a dismissal dispute to court

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; or

(b)    the general protections court application includes an application for an interim injunction.

Note 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728).

Note 2: 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.

3    The issues between the parties are:

(a)    whether the time limit in s 370 applies only to the applicant’s dismissal claims or whether it applies to all of her claims; and

(b)    whether the applicant should be granted the extension of time she seeks.

Issue 1: Section 370 of the FW Act

4    As to the first issue, the respondents submit that s 370 requires the applicant to seek and obtain an extension of time for all of her claims and not just those claims relating to her dismissal. It says this emerges from a consideration of s 368(4) of the FW Act and r 34.03(1) of the Federal Court Rules 2011 (Cth). Also relevant are the substantive parts of Federal Court Form‍ 79. These provide:

368 Dealing with a dismissal dispute (other than by arbitration)

(1)    If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).

Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3‑2 (which deals with unfair dismissal) in relation to the dispute.

(2)    Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).

Note: For conferences, see section 592.

(3)    If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

(a)    the FWC must issue a certificate to that effect; and

(b)    if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.

(4)    A general protections court application is an application to a court under Division 2 of Part 4‑1 for orders in relation to a contravention of this Part.

34.03 Application in relation to dismissal from employment in contravention of a general protection

(1)    A person who wants to make an application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3‑1 of the Fair Work Act must file an originating application, in accordance with Form 79.

(2)    The application must include any other claim for relief that the applicant wants to make in addition to the claim mentioned in subrule (1).

Note: Rule 34.05 provides for an application for an order in relation to a contravention of section 351(1) of the Fair Work Act.

(3)    The application must be accompanied by a certificate issued by the Fair Work Commission under the Fair Work Act that the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.

Note: Sections 545 and 546 of the Fair Work Act set out the orders the Court may make.

(4)    Subrule (3) does not apply to an application brought by a Fair Work Inspector.

Form 79: Originating application under the Fair Work Act 2009
alleging dismissal in contravention of a general protection

…

Details of claim under the Fair Work Act

The Applicant claims that:

1.    [describe each general protection that the Applicant claims has been contravened].

…

The Applicant relies on sections [state each section of the Fair Work Act that is relevant to this claim] of the Fair Work Act 2009.

The Applicant asks the Court for [*Insert relief sought] an Injunction[*or]Compensation [*or]Reinstatement [*or other - specify].

[Give details. If seeking compensation, give details of amount claimed and calculations eg loss of income]

5    The respondents submit that the whole of the applicant’s originating application is a ‘general protections court application’ as defined in s 368(4) even though it claims relief which, if it was in a separate originating application, would not be a general protections court application. The respondents’ submission is supported by the decision of Logan J in Kelly v Corporation of the Synod of the Diocese of Brisbane [2023] FCA 829 (‘Kelly’) at [26]-[33] and contradicted by the decision of Katzmann J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Absolute Commissioning Group Pty Ltd (No 2) [2024] FCA 1324 (‘Absolute’) at [51]. In Absolute, Katzmann J concluded that Kelly was plainly wrong and declined to follow it. Without adverting to the conflict in the authorities, Burley J came to the conclusion that the time bar in s 370 only applies to those parts of the claim that relate to dismissal: Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569 at [108]-[117].

6    On the state of the authorities, I am not bound to any particular outcome. I prefer the approach taken by Burley J and Katzmann J. Section 368(4) is a definitional provision which only applies to the extent that the context does not otherwise require: Knightsbridge Estates Trust, Limited v Byrne [1940] AC 613 at 621 per Viscount Maugham (with whom Lord Atkin, Lord Wright and Lord Porter agreed); Betella v O’Leary [2001] WASCA 266 at [13] per Burchett AUJ (with whom Wallwork and Wheeler JJ agreed).

7    In this case the context indicates that the definition in s 368(4) does not apply to s 370(a)(ii) to the extent that an originating application claims relief which does not relate to dismissal. No rational purpose is served by requiring the time bar to apply to non-dismissal claims.

Issue 2: Extension of time

8    The second question is whether an extension of time should be granted. There is no dispute about the principles to be applied which are those set out by the former Industrial Relations Court of Australia in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300 per Marshall J in relation to a predecessor provision:

The relevant principles which should govern the Court's discretion to extend the time within which an application under s 170EA of the Act may be lodged are set out in the decisions of Keely J in Transport Workers Union of Australia v National Dairies Ltd (No 2) (1994) 57 IR 186 and Beazley J in Turner v K & J Trucks Coffs Harbour Pty Ltd (1995) 61 IR 412. In each case the Court applied the tests referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349.

I agree, with respect, that those principles are appropriate to be applied in the circumstances of this matter.

Briefly stated the principles are:

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.

Explanation for the delay

9    As to the delay, the nine-day delay is not a large one. The applicant has put on affidavit evidence in which she explains that she was having mental health issues at the time; had caring responsibilities for her family in Nepal; and, had difficulties filing documents through the Court’s eLodgment system.

10    The respondents do not challenge ‘in general terms’ these matters but they do submit that the applicant is a lawyer who should have known better and the time limit was clearly noted on the Commission’s certificate. They also submit that the applicant had prepared a draft of her pleading in or around mid-January 2025 and that she had not presented any medical evidence from a medical practitioner that she was unable at the relevant time to attend to her litigation. This is strictly true but there is evidence from medical practitioners concerning her mental health. I accept that the applicant has sufficiently explained the delay. This favours the grant of an extension.

Action taken to contest the termination

11    The respondents accept that the applicant actively contested her dismissal before the Commission and that this is a matter which favours the grant of an extension.

Prejudice

12    There is no evidence of any prejudice to the respondents. This matter is therefore neutral.

Merits

13    The respondents submitted that the applicant’s case lacked merit for five reasons.

14    The first reason was that not all the alleged adverse action comprising the conduct necessarily or obviously constitutes adverse action for the purposes of s 342 of the FW Act. This was because it did not amount to a form of injury in employment or prejudicial alteration of an employee’s position. The respondents nominate subparagraphs (a), (b), (c), (d), (k), (l), (o) and (p) of [244] of the statement of claim as suffering from this problem. Since the making of that submission the applicant has filed an amended statement of claim and [244] would now appear to be [250]. The relevant subparagraphs of [250] are as follows:

a.    It created uncertainties for the Applicant in respect of complaints handling at work and / or career advancement;

b.    It delayed the Applicant’s promotion;

c.    It did not afford the Applicant procedural fairness;

d.    It led to reduction in the Applicant’s workload and / or opportunities;

…

k.    It subjected the Applicant to a disciplinary process;

l.    It singled the Applicant out in the way the remote work was approved;

…

o.    It reduced the Applicant’s workload to nil;

p.    It slowed the Applicant’s career progression or advancement;

15    Adverse action is defined in item 1 of the table in s 342 of the FW Act to include injuring an employee in his or her employment. I do not agree with the respondents that it is not reasonably arguable that these allegations fall within that definition.

16    The respondents also objected to subparagraphs (f), (g), (i), (j), (m) and (n) on the basis that they were objectively ambiguous. The subparagraphs are as follows:

f.    It created an unsafe work environment;

g.    It coerced the Applicant to engage in unlawful and / or unethical conduct;

…

i.    It treated the Applicant differently to the manner in which she was ordinarily treated;

j.    It made the Applicant’s employment less secure;

…

m.    It discriminated between the Applicant and other employees of the First Respondent in a comparable situation;

n.    It caused the Applicant financial loss;

17    I would accept that the respondents are entitled to further and better particulars of these allegations but I do not accept that it means that the allegations lack merit in the context of an extension of time application.

18    The respondents also complain that all of the conduct alleged at [240]-[243] constitutes any of the adverse action pleaded at [244]. Updating the paragraph numbers to those in the amended statement of claim, the submission is that [246]-[249] constitute any of the adverse action pleaded at [250]. Here the point is that one cannot tell which specific conduct gives rise to what adverse action. So, for example, [247] in the amended statement of claim alleges, amongst other things, that the respondents engaged in ‘Conduct 2’. Conduct 2 is defined at [61] in these terms:

The First Respondent and / or Third Respondent did not fairly, adequately and independently investigate the Seventh KS Complaint and / or did not take reasonable steps to ensure the Applicant’s promotion decision was made objectively and fairly, that the Applicant was given equal access to opportunities and / or not subjected to psychological hazards, such as bullying and perception of being bullied (Conduct 2).

19    The respondents’ point is that one cannot tell from [250] whether the failure adequately to investigate her complaint is linked, for example, to the allegation at [250(a)] or [250(b)]. I think there is force in this submission but again, it does not indicate to me that the applicant’s claim lacks merit. As with the previous submission, this is a matter which can be addressed by a request for particulars.

20    The second reason was the case the applicant had pleaded about her exercise of workplace rights was legally unviable. Section 342(1) provides:

342  Meaning of adverse action

(1)    The following table sets out circumstances in which a person takes adverse action against another person.

21    The applicant alleges that the first respondent took adverse action against her because she exercised workplace rights. One strand of that case is concerned with various complaints she made during the course of her employment. The respondents summarise these complaints as being complaints about:

(a)    the tasks she was being assigned by her supervisors in various litigation;

(b)    her career progression within Piper Alderman;

(c)    her email communications with colleagues about litigation;

(d)    her leave entitlements and her study leave;

(e)    her personal leave and medical certificates;

(f)    conditions as to how she was to inform her colleagues about her “Flexible Work Request”;

(g)    bullying behaviour by Mr del Gallego.

22    The respondents then submit that these matters are not legally capable of constituting a complaint within the meaning of s 341(1)(c)(ii). As the submission was developed, however, the point was that several of the complaints related to the applicant disputing directions given to her by her supervisors about the general conduct of litigation. From footnote 41 of the respondents’ submissions, I take this to be a reference to the First and Second KS Complaints pleaded at [31] and [44(c)]. In the amended statement of claim [44(c)] has become [45(c)]. They are as follows:

31.    In response, in a distressed voice, the Applicant told Ms Sambrook that her direction is not reasonable, that she was dealing with “family emergency” since Friday, was prioritising the JMS Affidavits Workstream and refused to work that day, stating words to the effect of “its just not physically possible” (First KS Complaint).

45.    … At that meeting:

(c)    The Applicant raised issues with Ms Sambrook’s statements, that they were inconsistent with facts, that the 15 April Direction was not reasonable, and said that she had informed Ms Sambrook that she had to prioritise the JMS Affidavits Workstream, stating words to the effect of, “even Marty had told you that that workstream had to be prioritised before your task; your task needed a lot more time, there were too many documents to review”, reminded them of the circumstances in which she was working in April (noted at paragraphs 27, 28, 38 and 42) and that Ms Sambrook had herself removed the Applicant from the KS Task, and that Ms Sambrook frequently imposed unreasonable deadlines and “really needs to” give the Applicant clear instructions and unreasonable deadlines (Second KS Complaint).

23    The respondents rely on what Snaden J said in Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677 at [150]:

… in order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, an employee must first demonstrate that it was made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with good justification or otherwise) that he or she has something about which to complain or inquire.

24    This may or may not well turn out to be a good point for the respondents at trial but it is difficult to assess on an application such as the present where the full industrial circumstances are not known.

25    The third point relates to the applicant’s use of the pleading device of ‘and/or’ which the respondents submit means that in many cases they do not know the case they have to meet. Again, this is a matter which can be resolved by a request for particulars.

26    The fourth point relates to the statement of claim at [249]-[250]. They were as follows:

249.    At all material times, by reason of paragraphs 13 to 16, the First Respondent knew that the Applicant was entitled to the workplace rights set out at paragraph 12.

250.    By reason of paragraph 249, the First Respondent’s contravention(s) of ss 340 (1), 343 and / or 344 of the FW Act is a serious contravention under ss 539 and 577 A of the FW Act.

27    However, this pleading has been changed somewhat in the amended statement of claim and is now found at [255]-[257]:

255.    At all material times, by reason of paragraphs 13 to 16, the First Respondent knew that the Applicant was entitled to the workplace rights set out at paragraph 12.

256.    By reason of paragraphs 6 to 255, in so far as Conduct 2, Conduct 4, Conduct 8, Conduct 9, Conduct 10, Conduct 11 and / or Conduct 12 is concerned, the First Respondent knowingly or recklessly contravened ss 340 (1), 343 and / or 344 of the FW Act.

257.    By reason of paragraph 255 256, the First Respondent’s contravention(s) of ss 340 (1), 343 and / or 344 of the FW Act is a serious contravention under ss 539 and 577 A of the FW Act.

28    The respondents’ point is that the applicant has not made any attempt to explain how the knowledge of her workplace rights results in a serious contravention for the purposes of s 557A of the FW Act. I take the reference to s 577A in the amended statement of claim to be a typographical error since there is no such provision and read it instead as a reference to s 557A. It provides:

557A  Serious contravention of civil remedy provisions

 (1)    A contravention of a civil remedy provision by a person is a serious contravention if:

(a)    the person knowingly contravened the provision; or

(b)    the person was reckless as to whether the contravention would occur.

Note: For the liability of bodies corporate for serious contraventions, see section 557B.

Example: Generally, subsection 323(1) requires an employer to pay an employee the full amount payable to the employee in relation to the performance of work.

 A contravention of subsection 323(1) is a serious contravention if the employer knowingly does not pay the employee in full or is reckless as to whether the failure would occur. It does not matter if the employer does not know the exact amount of the underpayment.

(2)    For the purposes of subsection (1), a person is reckless as to whether a contravention would occur if:

 (a)    the person is aware of a substantial risk that the contravention would occur; and

 (b)    having regard to the circumstances known to the person, it is unjustifiable to take the risk.

Involvement in a serious contravention

(5A)    A person (the involved person) who is involved in a contravention of a civil remedy provision by another person (the principal) commits a serious contravention of the provision only if:

 (a)    the principal’s contravention was a serious contravention; and

 (b)    the involved person knew that the principal’s contravention was a serious contravention.

Application for a serious contravention order and alternative orders

(6)    If a person is applying for an order in relation to a serious contravention of a civil remedy provision, the person’s application under subsection 539(2) must specify the relevant serious contravention.

(7)    If, in proceedings for an order in relation to a serious contravention of a civil remedy provision, the court:

 (a)    is not satisfied that the person has committed a serious contravention against that provision; and

 (b)    is satisfied that the person has contravened that provision;

the court may make a pecuniary penalty order against the person not for the serious contravention but for the contravention of that provision.

29    There is no substance in this submission. If, as is alleged, the first respondent knew of the applicant’s workplace rights and then knowingly or recklessly contravened ss 340(1), 343 or 344 then s 557A will be engaged.

30    The fifth point is that it was inherently more likely that the applicant had been dismissed from the first respondent’s employment because she had been made redundant. This submission was based on a letter sent by Ms Guest to the applicant on 7 January 2025 informing her that she had been made redundant because the firm had received instructions that the applicant was no longer to work on the partner’s two primary litigation files. No doubt, that will be the respondents’ case at trial but I do not remotely see how I can say on an extension of time application that the applicant’s case is so ‘inherently unrealistic’ (as the respondents submitted) as to deprive her of the right to a trial.

31    There will be no order as to costs although I would in future encourage the respondents to be more discerning in the submissions they advance.

Disposition

32    I will make the following orders:

(1)    The time for the applicant to bring her general protections claim in this Court be extended to 26 March 2025.

(2)    There be a case management hearing on 27 January 2026 at which time the matter will be fixed for hearing and timetabling orders made.

Associate:

Dated:    1 December 2025