Federal Court of Australia

Peymani v Posh N Polished Pty Ltd [2026] FCA 560

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth), time be extended until 20 December 2025 for the commencement of a court application for the claims made in the proceeding pursuant to ss 340 and 344 of the Fair Work Act 2009 (Cth).

2.    Costs of the application for an extension of time are reserved.

3.    The proceeding is referred to a Registrar of the Federal Court of Australia to:

(a)    conduct a mediation for half a day, on a date not before 8 May 2026; and

(b)    make any other procedural orders for the progress of the matter if the proceeding does not resolve at mediation.

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

REASONS FOR JUDGMENT

BENNETT J:

introduction

1    This is an application for an extension of time to lodge a general protections court application under s 370 of the Fair Work Act 2009 (Cth) (the FW Act). For the reasons below I have decided to grant leave to proceed in respect of part of the claim. The parties will be ordered to mediation prior to the next steps in the proceeding.

Background facts

2    The Applicant was employed by the Respondent, Posh N Polished Pty Ltd, as a salon manager and cosmetic tattooist under an employment agreement dated 8 August 2024. The Applicant’s employment commenced on 4 September 2024. The contract provided for an annual salary of $81,000 per annum plus superannuation, in addition to a commission in the amount of 20% of the cost of each of the following treatments: “cosmetic tattoo treatments & removals, skin needling and plasma pen lifting services”.

3    On 14 May 2025, the Applicant submitted what she called a “written proposal” outlining what she asserts were her concerns about the salon’s lack of structure, business planning and operational efficiency in an email to the director of the Respondent, Ms Carol Elzain (14 May Email). She said she proposed two options, either a review of her renumeration or a mutual separation of employment. The 14 May Email is exhibited to the affidavit of the Applicant dated 7 October 2025. It relevantly provides (errors and bolding in original):

Hi Carol

I’d like to be honest with you and address a few concerns regarding the current structure and professionalism within the business.

As you know, I’ve consistently gone above and beyond in my role – as Salon Manager, Master Technician, and Dermal Clinician. With over 20 international certifications and more than 250 five-star reviews contributed directly to PNP, I’ve played a key role in building the salon’s reputation, introducing structure, treatment plans, and high-performing KPIs – areas that were previously lacking direction.

Despite my contribution, I’ve continued to accept a modest salary because I genuinely believed in your vision and wanted to support your journey as a businesswoman. However, the ongoing lack of operational consistency, mismanagement of bookings which all are a 2IC responsibility, and blurred communication have made it clear that the current setup no longer supports my professional standards.

I’m now offering you two options moving forward:

1.    Part-Time Role – Continue under my newly outlined part-time position as Master Dermal Clinician and Cosmetic Technician Manager (Wednesday – Friday), at $80K per year + 40% commission, operating independently without direct supervision from your future salon manager.

2.    Full-Time Leadership Role – I’m also open to accepting a full-time management position starting next month, with a salary of $180K per year + 30% commission, fully

If neither of these options aligns with your expectations, I am prepared to submit my 4-week notice of resignation and begin a smooth transition.

I appreciate your support thus far and hope we can agree on a structure that reflects the value I bring to the business.

Warm regards,

Lida

4    The Applicant asserts that her intention in preparing the proposal was to encourage Ms Elzain to “work collaboratively toward improving the business and to reach a fair and transparent outcome”. She asserts that after presenting the proposal, Ms Elzain “reacted with verbal abuse and threats, repeatedly pressuring me to resign or accept a unilateral commission reduction from 30 per cent to 20 per cent, and then to 15 per cent”. She said that out of fear of losing her position and because of ongoing intimidation, she withdrew the proposal and “agreed to continue working under my existing contract and salary”. It is said that after the proposal matters escalated, and that the Applicant was required to accept further commission reductions, contrary to her employment agreement.

5    It is apparent that this email triggered an exchange of correspondence about the next steps and the nature of the relationship between the parties. There is a dispute about the nature, tone and meaning of that correspondence.

6    It is apparent that the dispute then escalated significantly. In correspondence from about late May to early June 2025 the parties accused each other as operating in a manner that was harassing or inappropriate.

7    The Applicant alleges that during around the same period, Ms Elzain advertised her role online, demoted her from her managerial position to a basic cosmetic technician, altered her access to company systems which prevented her from managing bookings, staff and client records and removed her professional insurance certificate and display training certificates from the cosmetic treatment room and academy area.

8    There was an apparent dispute about the terms of the commission to which the Applicant was entitled, and on 2 June 2025, the Applicant declined to amend her commission invoice to reflect a reduced commission as directed by Ms Elzain as she “intended to continue working” under her existing contract because no new agreement had been reached. She claims that she was thereafter asked not to return to the Respondent’s premises. The Applicant complains that she was not given a termination letter, and says that she was constructively dismissed.

9    On 19 August 2025, the Applicant commenced an application in the Victorian Civil and Administrative Tribunal (VCAT) under the Australian Consumer Law and Fair Trading Act 2012 (Vic), alleging that a debt was owing in respect of an unpaid invoice she had issued to the Respondent for her outstanding commission and reimbursement for a stock invoice that she paid on behalf of the Respondent. The outstanding invoice was identified as being in the amount of $1,905. The claim in VCAT recites the issues that caused the application as follows:

I was employed at Posh n Polished under the supervision of the respondent.

As part of my role, I was entitled to receive 30% commission payments for work I completed as a cosmetic Technician.

In May 2025, at the direction of the respondent, I purchased stock on behalf of Posh n Polished using my own funds.

The commission owing to me is $893.

The reimbursement for the stock purchase I made on behalf of the respondent has not been paid.

The combined amount of unpaid commission and the unpaid stock reimbursement totals $1905.

Despite repeated follow-ups, the respondent has failed to pay me these amounts.

10    After June 2025 further allegations were made against Ms Elzain and representatives of the Respondent.

11    At around this time, the Respondent commenced proceedings against the Applicant in the County Court of Victoria (County Court Proceeding). On 17 September 2025, the Applicant was served with court documents in relation to that proceeding. She claimed that the service occurred at 8.00 pm and that this caused her significant distress, and a panic attack, requiring ambulance attendance. That proceeding alleges that the Applicant has established a competing business that is geographically proximate to the Respondent’s business, and has solicited the Respondent’s clients and used confidential information and marketing materials created at the Respondent’s salon.

12    The Applicant took steps to respond to the County Court Proceeding.

13    The Applicant filed a general protections dismissal application with the Fair Work Commission (FWC) under s 365 of the FW Act alleging she was dismissed by the Respondent in contravention of Part 3-1 of the FW Act. A preliminary issue before the FWC was whether there had been a dismissal. The FWC considered the 14 May Email in that context. The Applicant argued before the FWC that the email was not a resignation but a business proposal and that nothing was agreed. While its findings are not binding, it is convenient to set out the way in which the parties put the case before the FWC. The decision of Commissioner Tran records the following (at [6]-[12]):

The parties exchanged lengthy text messages, some of which were provided to me. Ms Elzain [the Respondent] says that after the 14 May email, she met with Mrs Peymani [the Applicant] and verbally accepted her resignation. She says that she told Mrs Peymani that she could not agree to any of the options. Mrs Peymani recalls that Ms Elzain said to her that she accepted her resignation and that she cannot afford the options provided.

Ms Elzain says they then discussed a 4 week exit period, and for Mrs Peymani’s employment to end around mid-June. This appears to be supported by text messages, in one of which Mrs Peymani says:

Four weeks is heaps of time. I’m happy to wait so you can find a good fit for the business.

Ms Elzain advertised to replace Mrs Peymani in her business. Mrs Peyamani agrees this occurred. Mrs Peymani says it was further evidence that Ms Elzain was forcing her to leave.

After 14 May 2025, Ms Elzain says that she and Mrs Peymani had several meetings, in which Mrs Peymani attempted to retract her resignation and they tried to discuss Mrs Peymani’s salary and commission. I find that many meetings did occur between Ms Elzain and Mrs Peymani. Those meetings were to discuss whether Mrs Peymani continued in the business. The text messages support a back and forth between the parties about this, with Mrs Peymani reiterating that she wanted to remain in the business but also asking Ms Elzain to not act on her resignation.

Also during this time, Ms Elzain says that she found Mrs Peymani to be counter-productive at work, with an angry demeanour. Ms Elzain says that other staff members came to her to complain about Mrs Peymani’s behaviour. Ms Elzain said that, due to Mrs Peymani’s behaviour, she decided that it would be best to end the exit period at the 2-week mark instead of in mid-June.

Ms Elzain says that she entirely removed Mrs Peymani’s access to Fresha on 2 June, which was also when she asked Mrs Peymani not to return to work at all. After this date, Ms Elzain paid Mrs Peymani’s unused annual leave entitlements and her salary to that date.

Mrs Peymani confirms that she has not returned to work for Posh N Polished since 2 June 2025. She says her last day of actual work was the Thursday prior. This roughly aligns with the evidence of Ms Safoora Hooshyar, another employee of the salon.

14    Commissioner Tran concluded (at [14]) that it was not necessary to determine whether the 14 May Email or the subsequent discussions and text messages constituted a resignation nor whether that resignation was voluntary or forced. That was because the Respondent decided to bring forward the date at which the Applicant’s employment would have ended had her resignation been effective from mid-June to 2 June 2025, and this was sufficient to conclude that there had been a dismissal. The matter was then conferenced by the FWC. No resolution was reached.

15    On 24 September 2025 the Applicant was issued with a certificate under s 368(3)(a) of the FW Act in relation to the dispute. As that certificate made clear, and as stated by s 370(a)(ii) of the FW Act, the Applicant then had 14 days to make a “general protections court application” to this Court. A claim was therefore due to be filed by 8 October 2025.

16    On 30 September 2025 the Applicant filed an affidavit in the County Court Proceeding.

17    On 7 October 2025, the Applicant attempted to lodge an application in this Court. She did so by filing an originating application under the FW Act alleging unlawful termination of employment (Form 80), an affidavit, and a certification under s 42 of the Civil Procedure Act 2010 (Vic). On 21 October 2025, the documents were refused for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) because the Duty Registrar was satisfied they were an abuse of the process of the Court or were frivolous or vexatious. The Duty Registrar said:

It is not apparent on the face of the documents whether the Fair Work Commission has held a conference under section 368 of the Fair Work Act and has determined that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful. Furthermore, in the affidavit document… are an Originating Application and Statement of Claim that are different to the Originating Application filed. Finally, you have also provided a Form 4A and 4B certification under s 42 of the Civil Procedure Act 2010 (Vic) which is not a form the Federal Court uses.

I encourage you to seek independent legal advice prior to filing any further documents.

18    On 27 October 2025 the Applicant filed her defence to the County Court Proceeding.

19    On 17 December 2025 the Applicant obtained a medical certificate that said:

Ms Lida Peymani was experiencing acute psychological distress and was medically unfit to engage in or manage legal proceedings during the period from mid-October to 17 December 2025.

As of this date, Ms Peymani has been medically assessed and is fit to resume participation in legal proceedings.

20    The application was then lodged in its present form on 20 December 2025. It was accepted for filing on 30 December 2025. That application includes an originating application under the FW Act alleging unlawful termination of employment (Form 80), and an affidavit of the Applicant dated 7 October 2025. The grounds of the application are that:

…

2.    On or about 14 May 2025 the Applicant was constructively dismissed from her employment when the Respondent’s conduct made the continuation of employment untenable.

3.    The Fair Work Commission issued a certificate under s 368 of the Fair Work Act 2009 (Cth) on 24 September 2025, confirming that all reasonable attempts at conciliation had failed.

4.    The Respondent has failed and refused to pay the Applicant’s outstanding wages and entitlements in the sum of approximately $1,905.

5.    As a result of the Respondent’s conduct and the dismissal, the Applicant has suffered financial loss, emotional distress, and reputational damage to her professional standing.

6.    The Applicant relies on sections 340, 343, 344, 351, 368, 539 and 546 of the Fair Work Act 2009 (Cth).

21    In the course of the hearing, the Applicant was asked to explain each of her claims. In relation to each provision referred to in her originating application, the Applicant made various submissions:

(1)    In relation to s 340, she said that she relied upon the issuing of the “written proposal” contained in the 14 May Email as the exercise of a workplace right, and that she had suffered a reduction in pay or commission because of it.

(2)    In relation to s 343, she said that Ms Elzain’s husband (Mr Charbel Fachry) had spoken to Ms Peymani’s husband (Mr Behnam Khayer) in an intimidating manner and suggested that he did so to discourage the Applicant from exercising a workplace right to pursue a claim against the Respondent. There is no reference or arguable reference to this claim in the originating application, and the basis of it is set out in a statement of the Applicant’s husband annexed to her own affidavit dated 7 October 2025. That statement is dated 14 July 2025. The purpose for which it was produced is not clear. That statement asserts that Mr Khayer found Mr Fachry’s behaviour to be “very aggressive and rude”. Beyond that, it does not refer to any attempted coercion in relation to the exercise or proposed exercise of a workplace right.

(3)    In relation to s 344, the Applicant said that she was put under pressure to accept a new (lower) commission rate.

(4)    In relation to s 351, the Applicant said that she was alleging discrimination because Ms Elzain had made fun of her accent. This was not included in any of the affidavit material, and was not agitated before the FWC. The Applicant accepted that it was not related to her dismissal.

RELEVANT PRINCIPLES

22    The Applicant seeks an extension of time to bring a general protections court application under s 370(a)(ii) of the FW Act. The question of whether to grant leave under that provision is discretionary.

23    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)).

24    The principles applicable to an application of this kind were summarised by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300 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. 

25    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] HCA 25; 186 CLR 541 at 553 (McHugh J, with whom Dawson J agreed)).

26    I turn therefore to the application of these principles to the present proceeding. In doing so, I have kept in mind that both of the parties are unrepresented. This has presented challenges in understanding the issues, and disentangling various of the allegations that have been levelled by the parties. It is clear that there is a significant degree of animosity between the parties.

the factors

The delay, reason for the delay and prejudice

27    The delay is 2 months and 12 days. The Applicant asserts that it is a relatively short period, and that it is explained. She says that:

(1)    She attempted to file within time but failed to use the correct forms, or provide all of the correct documentation (such as the FWC certificate) to do so.

(2)    She was notified that her attempt to file had been unsuccessful by correspondence dated 21 October 2025.

(3)    She has a medical certificate asserting that from mid-October until 17 December 2025, she was not medically fit to participate in legal proceedings.

28    The evidence is clear that there was an attempt to file the proceeding within the time frame contemplated by the FW Act, although the initial materials have not been provided to me as part of this application. The Duty Registrar refused the documents because they were an abuse of process or frivolous or vexatious. That was because the documents did not appear to disclose that the FWC had held a conference and issued a certificate pursuant to s 368 of the FW Act. That issue has been rectified by the filing of the FWC’s certificate. Further, there were apparent discrepancies between the originating application that was filed, and the originating application and statement of claim that were exhibited to the supporting affidavit of the Applicant. Finally, the use of Supreme Court forms required by the Civil Procedure Act 2010 (Vic) was (correctly) considered to be inappropriate.

29    It appears that at least the failure to provide the certificate of the FWC was a significant factor in the refusal to accept the filing. I infer that the certificate existed but simply was not provided to the Court because the Applicant was ignorant of the requirement to do so.

30    There can be no criticism of the failure to accept the original materials for filing. It was appropriate that they be rejected given the manner of their presentation. Moreover, it was more than the filing of a defective form as the Applicant alleges. Nonetheless, the significant issue for the present application is that the Applicant attempted to bring her claim within the timeframe nominated, and the failure to do so was at least in part referable to understandable ignorance of the procedural requirements for such a claim.

31    The notice of the failure to file in the appropriate way was not received by the Applicant until 21 October 2025. This was within the period which her doctor said that she was not fit to engage in legal proceedings. I accept that the fact that there was a medical certificate covering that time is relevant. However, I am conscious of the comments made in this Court about the utility of medical certificates that lack specificity. These matters are generally considered in the context of applications to adjourn. In Singh v Minister for Immigration and Citizenship [2025] FCA 1486, Derrington J (at [49]-[50]) said in that context that:

The learned primary judge then went on to address a number of authorities dealing with the adequacies of medical certificates which were presented as an excuse for non-attendance at hearings. For instance, reference was made to the decision of Lindgren J in NAKX v Minister for Immigration and Multicultural and Ethnic Affairs [2003] FCA 1559 (NAKX), where his Honour (at [5]-[10]) observed that medical certificates must address the critical question of whether, and if so why, the medical condition in question would prevent the “sufferer” from travelling to court and participating effectively in a hearing. A broad statement that they are “unable to attend court” was insufficient. Instead, what is required is an identification of the medical condition and the causative reasons why it would have the effect of preventing the sufferer from participating effectively in a court hearing (referred to at Singh [83]).

His Honour proceeded to note that such logic had been applied in Quach v Australian Health Practitioner Regulation Agency (Adjournment) [2023] FCA 576 (at [9]). The relevant medical certificate proffered in that case was found to be insufficient to warrant the Court acting upon it. It did not provide a diagnosis of the condition suffered by the party nor explain the nature of that condition. Nor did it contain any opinion about whether the party was prevented or hindered in their preparation for, attendance at, or participation in, a hearing. Moreover, it did not contain any reasons which were sufficient to allow the Court to form its own view about the reliability of the opinion of the certifying doctor (referred to at Singh [84]).

32    The medical certificate proffered in this case was of a high level nature. The basis for the conclusion in the certificate that the Applicant was “medically unfit” to engage in or manage legal proceedings for a period of two months would benefit from further explanation or exposition. Nonetheless, it is supported by near contemporaneous evidence from Ambulance Victoria which suggests that the Applicant was in some psychological distress at around mid-September, which is consistent with the Applicant’s asserted medical difficulties.

33    The Respondent argues that the Applicant was taking steps in the County Court Proceeding during the period covered by the medical certificate, and that there is therefore no reason that she could not take steps in this proceeding.

34    The Applicant asserts that she was attending to the bare minimum that was required of her in relation to the County Court Proceeding, and that she sought an adjournment of a hearing in that proceeding in an attempt to “manage the situation despite my condition.” Overall, I accept that there was a genuine medical issue in play at the time, and that it explains why the Applicant’s attempt to file the present proceeding was not repeated immediately upon becoming aware of the rejection of her initial application.

35    The period of delay must be considered from the time that the proceeding should have been filed until the filing actually took place. This is a period of approximately 2 months. There is no real concern that the evidence or parties’ memory would have degraded in that time. Given the Applicant did take steps to file within time and she explains her subsequent delay by reason of health issues supported by medical evidence, I accept that the Applicant attempted to vindicate her rights within time, and that there is an explanation for her delay in doing so.

36    The Respondent effectively accepts that there is no real prejudice caused by a lack of memory or access to documents because of the 2 month delay. The core of the prejudice articulated by the Respondent is the apprehension that the Applicant’s psychological distress did not result in any relevant incapacity, and is being used by the Applicant to her forensic advantage in this proceeding, and others. In her affidavit material, Ms Elzain identified a range of proceedings that she says that the Applicant has initiated against the Respondent which have imposed a “significant and ongoing burden” on her business. These submissions are based in part upon the Respondent’s assertion that the psychological distress cannot be a reason for the delay if the Applicant was simultaneously filing documents or communicating with solicitors in connection with other proceedings.

37    The conduct of the Applicant in other proceedings does not necessarily demonstrate that she was not relevantly affected by her medical issues at the relevant time. Considering all of the material taken together, I accept that she was in some way impaired, and that caused her some difficulty in fulfilling her obligations in this proceeding.

The merits of the substantive application

38    The merits of the substantive case 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.  

The s 340 claim

39    The core of the complaint concerns a claim under s 340 of the FW Act. Such a claim depends upon the identification of a workplace right. That term is defined in s 341(1) 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.

40    The Applicant needs to establish that she has a workplace right, and that the Respondent took adverse action against her because she:

(1)    Has a workplace right (s 340(1)(a)(i)); or

(2)    Has, or has not, exercised a workplace right (s 340(1)(a)(ii)); or

(3)    Proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right (s 340(1)(a)(iii)).

41    Alternatively, the Applicant must establish that the Respondent took adverse action against her to prevent the exercise of a workplace right by her (s 340(1)(b)).

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

43    In this instance, it is clear that the Applicant considers the Respondent’s conduct towards her following the 14 May Email to be unfair. The question at the core of the merits of the present application is whether there is a workplace right identified with sufficient clarity to warrant the grant of leave.

44    That question is hampered by the Applicant’s lack of familiarity with the relevant law. The 14 May Email referred to concerns regarding the management of the Respondent’s salon including mismanagement of bookings and blurred communications, asserting that the “set up” no longer supported the Applicant’s professional standards. It could be argued that these are “complaints” – noting that to be a complaint, it is not necessary that it is factually correct or substantiated (Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923; 299 FLR 342 at [40]). Given the existence of a commission structure, those complaints could impact upon the Applicant’s ability to earn an income.

45    Separately, the two options proffered by the 14 May Email could be understood to be “inquiries” within the meaning of the FW Act, insofar as the Applicant could be said to be inquiring as to the availability of a revised employment structure or a pay rise. It is not clear from the authorities whether such a request could constitute an “inquiry” for the purposes of the relevant provision.

46    At present, the authorities favour the notion that a complaint or inquiry in relation to a workplace right in s 341(1)(c)(ii) is one that a person “is able to make” where the employee can demonstrate an express right or entitlement to bring the relevant complaint or inquiry under a relevant instrument, or if the complaint or inquiry relates to subject matter provided for in the employment contract.

47    In Alam v National Australia Bank Limited [2021] FCAFC 178; 288 FCR 301, a Full Court of the Federal Court (White, O’Callaghan and Colvin JJ) applied the approach taken in Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16; 268 FCR 46 (Greenwood, Logan and Derrington JJ) (Whelan), that it is sufficient that the complaint or inquiry relates to subject matter for which the contract of employment makes provision.

48    It is not necessary to decide at present whether such an argument will ultimately succeed in the sense that the 14 May Email could be brought within the understanding in the authorities. That is because I apprehend that part of the issue could turn on the circumstances surrounding the 14 May Email, which would be matters for evidence that cannot be pre-judged.

49    The difficulty with these arguments is that the 14 May Email was framed on the clear basis that “I’m now offering you two options moving forward”. One option was a part time role with approximately the same salary and an increased commission, with no supervision of the Applicant at all by the Respondent’s future salon manager. Alternatively, the Applicant required just short of a $100,000 increase in salary. It was said that if neither option aligned with the Respondent’s expectations then, the Applicant was “prepared to submit my 4-week notice of resignation and begin a smooth transition”.

50    On one view, the 14 May Email involved an ultimatum, rather than an inquiry or complaint, and the Applicant was asserting an intention to no longer be bound by the original employment contract.

51    In identifying the issue in this way, it is apparent that this is a matter that would benefit from full ventilation, including of the relevant facts. While I have some concerns about the viability of the claim, having regard to the difficulties that the parties labour under in the absence of legal representation, I am prepared to conclude that there is a discernible claim under s 340 of the FW Act disclosed by the Applicant without reaching any conclusion as to whether full ventilation of the issue will vindicate that position.

The s 343 claim

52    Section 343 relevantly provides:

343 Coercion

(1)    A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a)    exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

(b)    exercise, or propose to exercise, a workplace right in a particular way.

53    The claim based on s 343 was articulated for the first time in the course of the oral hearing of this application. There is no reference to the basis of it in the originating application, and the evidence referred to by the Applicant (being the witness statement of her husband) does not identify how any conversation could be said to have been relevant to whether the Applicant should or should not exercise a workplace right.

54    The originating application merely refers to s 343, and does not identify any other fact or matter relevant to that provision. In any event, s 343 relates to the intention to coerce a person to exercise or not exercise a workplace right, or to exercise it in a particular way. The exercise of the workplace right in issue pre-dates the alleged phone call between the husbands of the Applicant and Ms Elzain. Accordingly, it is not clear how it could relate to the exercise of a workplace right. I do not consider that any claim under this provision has been properly articulated and it is not appropriate to permit it to proceed.

The s 344 claim

55    Section 344 relevantly provides:

344 Undue influence or pressure

An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:

(a)    make, or not make, an agreement or arrangement under the National Employment Standards; or

(b)    make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or

(c)    agree to, or terminate, an individual flexibility arrangement; or

(d)    accept a guarantee of annual earnings; or

(e)    agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.

56    Section 344 concerns circumstances where an employer exerts undue influence or pressure on an employee in relation to a decision of that employee in respect of the matters set out at subsections (a) to (e).

57    The basis for a claim under s 344 is not articulated in the originating application. In her affidavit material the Applicant asserts that the Respondent “repeatedly presurr[ed]” her to accept a commission reduction that was contrary to the terms of her employment agreement or resign. In the course of the oral hearing the Applicant confirmed that it is this conduct that forms the basis of her claim under s 344.

58    I apprehend that the Applicant seeks to assert that the relevant undue influence or pressure relates to the alleged request or requirement to accept a reduced commission for work performed. It is not clear if this could be a “deduction from amounts payable to the employee in relation to the performance of work” pursuant to s 344(e) of the FW Act, but I accept that the proper characterisation could depend upon the way in which the arrangement operated in practice. For pressure or influence to be “undue” it must, at least, be unwarranted or inappropriate by being excessive or disproportionate (Australian Federation of Air Pilots v Jetstar Airways Pty Ltd [2014] FCA 15 at [13] (Pagone J)). This matter will turn on the evidence of the correspondence between the parties in relation to the proposed commission reduction.

59    Ultimately, the claim under s 344 appears difficult, at best. Nonetheless, it substantially overlaps with the factual substratum underpinning the s 340 claim, and appears at this preliminary stage to be at least arguable. In the overall circumstances (including that the s 340 claim is in any event proceeding) I will, permit this claim to continue.

The s 351 claim

60    Section 351 is in Division 5 of the FW Act. It relevantly provides that:

351 Discrimination

(1)    An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.

61    The Applicant asserted that this claim was based on Ms Elzain mocking her accent. This is said to be unconnected to her dismissal or the proposed changes to her commission. The adverse action alleged is said to be the embarrassment or humiliation of having her accent mocked.

62    Adverse action is defined in s 342. Where it is said to be taken by an employer against an employee, it arises where:

the employer:

(a)     dismisses the employee; or

(b)     injures the employee in his or her employment; or

(c)     alters the position of the employee to the employee’s prejudice; or

(d)     discriminates between the employee and other employees of the employer.

63    This claim was not articulated in any of the documents accompanying the substantive application, and the Applicant accepted that she had not raised it before the FWC. It appears to have been raised for the first time orally in the course of the application for leave to proceed. The reasons for these deficiencies were not explained with any clarity. Given the Applicant seeks to overcome a failure to file in time, it is necessary for her to show the way in which this claim arises. To the extent that the Applicant sought to obtain orders under ss 539 and 546, it is necessary that the matter has been agitated before the FWC. Because the Applicant was clear that had not occurred, it is not appropriate to allow an extension of time in relation to this aspect of the claim.

OTHER ISSUES

64    The Respondent argues that the Applicant is now pursuing a claim that is different from that which she pursued in the FWC. The Certificate that is before me from the FWC provides that:

Pursuant to s 368(3)(a) of the Act, the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.

65    Section 370 of the FW Act 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 the FWC has issued a certificate under paragraph 368(3)(a) and the general protections court application is made within 14 days after the day the certificate is issued.

66    The Respondent’s concern appears to relate to the notion that the present application uses a court form that is usually used for an unlawful termination claim, which generally requires a certificate to be issued under s 776(3)(a). That requirement only arises if the employment termination is said to arise from breach of s 772. I accept that the Applicant is limited to the general protections claim which she seeks to agitate, for the reasons explained above, she will be limited to those matters in her claim. The use of the wrong form does not alter the analysis.

67    A further issue that arose in the course of the proceeding was the Applicant’s claim in VCAT and whether s 732 of the FW Act operated to prevent the present proceeding from continuing while the VCAT proceeding remains on foot. It is apparent that the issue was not properly understood by the parties in the course of the hearing. The VCAT proceeding does not appear to concern the dismissal of the Applicant, although it does replicate the claim for $1,905 for the Applicant’s unpaid commission invoice. Section 732 focuses upon the substance of the allegations, and not the specific law invoked. So far as it can be ascertained the VCAT proceeding does not concern the circumstances of the Applicant’s dismissal. There does appear to be an overlap in terms of the relief sought, but that overlap is not of a kind which offends against s 732. At this stage, without foreclosing the possibility that further evidence of the nature of the proceeding in VCAT (or any other Court) will be put before this Court, s 732 does not appear to be relevant to the present application.

CONCLUSION

68    I consider this application to be relatively finely balanced. There was an attempt to file within time, and there was a medically supported explanation for the failure to do so over a relatively short time. There is little prejudice to the Respondent given the issues surrounding the end of the Applicant’s employment have been the subject of active dispute since that time. The documents and memories are well preserved. While the Respondent asserts that it is vexed with multiple proceedings, that is a factor that is so bound up in the merits of the claim as to be difficult to assess at this early stage. Moreover, at least one of those proceedings was commenced by the Respondent.

69    I have decided to permit the matter to proceed in relation to the claims under ss 340 and 344. Those parts of the claim are (at least to some extent) identified in the application for the extension of time.

70    Leave will not be granted in respect of the claims under ss 343, and 351 because the Applicant has failed to identify claims capable of being successful, or establish that the matters have otherwise been properly ventilated before the FWC or as part of this application. I do not consider it appropriate, in the exercise of my discretion, for those matters to proceed.

71    In the course of the oral hearing of the present application, the Applicant was asked to identify the relief that she sought from this Court. She articulated that she sought $1,905 in payment of her outstanding commission invoice, payment of around two weeks of salary in lieu of notice, and an undefined amount of compensation for pain and suffering or humiliation etc. She simultaneously accepted that the amount of $1,905 has also been sought in VCAT and that she cannot claim the same amount twice.

72    It is clear that these proceedings relate to matters where the parties have considerable animus towards each other. The cost, delay and stress involved in hearing and determining this matter is likely to be substantial for all concerned. I will therefore order that this matter proceed to mediation before a Registrar before further orders are made in relation to the conduct of the proceedings, including for the filing of an amended claim which is consistent with these reasons.

Associate:

Dated:    6 May 2026