A general protections application lodged two days outside the 21-day limit has been dismissed, with Deputy President Binet finding that the form at the centre of the delay “should not have taken more than thirty minutes to complete”.
At a glance
- Parties: A former pilot v Auriga Aviation Pty Ltd, its Managing Director of Aviation and its Head of Flying Operations
- Citation: [2026] FWC 3300, Deputy President Binet, Perth, 9 October 2026
- Section: s.365 and s.366 of the Fair Work Act 2009, and s.596 on permission to be represented
- Outcome: Extension of time refused; application dismissed
- Who it affects: Applicants in general protections dismissal disputes and parties relying on lay representatives
A resignation the applicant dated herself
Auriga Aviation recruited the applicant and her husband from South Africa. Her husband resigned in March 2026, after which she grew concerned about what that would mean for her own job and her immigration status.
A lay representative wrote to Auriga on her behalf on 9 April 2026 and attended a meeting with the company on 29 April 2026. On 2 May 2026 the applicant submitted a written resignation effective 31 May 2026.
On 24 June 2026 she applied under s.365 of the Fair Work Act 2009 alleging she had been dismissed in contravention of Part 3-1 of the Act, the general protections provisions. An application must be made within 21 days after the dismissal takes effect. The twenty-first day fell on Sunday 21 June 2026, so the application was due by midnight on Monday 22 June 2026. It was two days late.
No automatic right to a lay representative
The representative did not seek leave to appear. She told chambers she intended to act for the applicant and argued that a party could choose any representative who was not a lawyer or paid agent. She described herself as a “lay representative” and said she was then representing up to twelve individuals in Commission proceedings.
Deputy President Binet rejected the asserted entitlement, citing the Explanatory Memorandum to the Fair Work Bill 2008, Justice Flick in Warrell v Walton, the Full Bench in Fitzgerald v Woolworths Limited, and the Full Bench in Richards v Auriga Aviation Pty Ltd [2026] FWCFB 146, another matter in which the same representative had sought to act for an applicant.
Allowing anyone who was not currently a lawyer or paid agent to appear for a party as of right, the decision states, “would create a mockery of the leave provisions”.
Auriga was granted permission under s.596(2)(a) to be represented by special counsel from Mullins Lawyers on the ground that it would “enable the matter to be dealt with more efficiently taking into account the complexity of the matter”. The applicant did not oppose that permission before the hearing, and objected during it. The Deputy President declined to revisit the grant.
The applicant appeared on her own behalf at the hearing on 8 September 2026. The Deputy President noted she is a trained pilot who is English-speaking and articulate, that the hearing was run in the manner of a determinative conference, which did not require familiarity with Commission processes, practices or the rules of cross-examination, and that multiple adjournments were provided.
Medical evidence set against a record of filings
The extension application rested on the representative’s ill health. Her evidence was that she was hospitalised on 9 April 2026 and diagnosed with Functional Neurological Disorder, that she suffered a heart attack on 1 June 2026, and that her condition worsened again on or about 22 to 23 June 2026.
The medical material before the Commission consisted of three reports prepared for a workers compensation claim relating to her separate office-based employment. A report dated 10 June 2026 assessed her at more than 90 per cent whole person impairment for that role and considered her unfit for office work for at least six months. A report dated 7 July 2026 limited her to 15 minutes of activity at a time, followed by a 10 minute cognitive break. No treating practitioner was called.
Deputy President Binet found that level of impairment difficult to reconcile with the representative’s documented activity. Between 5 June 2026 and 16 June 2026 she filed a witness statement in an anti-bullying matter, filed substantial material in appeal proceedings and appeared at the hearing of those proceedings on 16 June 2026, lodged a Legal Services Commission complaint against the employer’s solicitor, and filed a misconduct restraining order application in the Magistrates Court of Western Australia on 14 June 2026 that was summarily dismissed with costs against her exceeding $3,800. She conceded spending ten hours on the documents identified, a figure the Deputy President assessed as well short of the actual time.
The Deputy President also found the tone and content of the representative’s correspondence in these and other proceedings had been inappropriate, and noted evidence filed for the employer suggesting she had previously been convicted of a charge of dishonesty and had been found by the Federal Court not to be an appropriate person to represent an applicant in that jurisdiction.
The decision records that the Form F8, the general protections application involving dismissal, uses plain English and is built for people without representation. The representative had been advising the applicant since at least 9 April 2026 and knew the circumstances of the claim. Preparation could have begun any time after 2 May 2026.
What each side put
that her representative suffered a cardiac arrest and was hospitalised in the days immediately before the filing deadline, that the filing period fell within a medically supervised recovery during which her capacity was materially impaired, that she herself was unaware the deadline had been missed and relied on her representative to attend to filing, and that the application raised substantive general protections allegations “connected with her employment and its termination, including matters going to visa status, housing, and permanent residency pathways”.
that it would suffer prejudice if an extension were granted because of the impact of the duration of the delay on the resources required to deal with the application, that the applicant was not dismissed but chose to resign, and that it had taken no adverse action against her.
that the evidence did not provide a reasonable explanation for the delay, that the applicant “bears some responsibility for the delay and it cannot be excused entirely” by her representative’s ill health, that she had selected her own dismissal date and so had the full 21 days plus a further 29 days before the dismissal took effect, that the only action taken to dispute the dismissal was instructing the representative to make the application, that prejudice carried little weight given the delay was not long, and that the merits were a neutral consideration because it was not clear the jurisdictional objection could be overcome.
Taking the s.366(2) factors together, the Deputy President was not satisfied there were exceptional circumstances, whether considered individually or together, and declined to allow a further period. The application was dismissed, with an order to issue with the decision.
The decision records that the Commission has recently refused extensions for applications filed even one day out of time, and that consistency with those outcomes weighed against granting one here. It also records that there was no evidence the applicant took any step to check the status of the application after leaving its preparation to her representative.
Source: [2026] FWC 3300
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