A former corporate counsel of a toll-road operator, who alleged he was discriminated against because of his age, was shut out of the Fair Work Commission due to slip-ups with his dismissal application.
Commissioner Trevor Clarke was unwilling to grant an extension of time for a Melbourne-based corporate counsel to pursue a general protections claim against his former employer, Transurban Limited.
In the general protections claim, the corporate counsel briefly alleged there were breaches by Transurban of his workplace rights related to him “raising concerns about documentation and clarity”, as well as discrimination due to his age “or perceived dispensability”.
Originally, the counsel filed an unfair dismissal application, but he did not meet the minimum employment period to be eligible.
The “actual allegations of material facts” relevant to general protections claim were also missing from the initial forms.
Clarke said that while the commission “strives to be accessible”, it still requires that applications “explain the basis of their claim”.
The counsel tried to provide an updated version to instead “align with the general protections framework”, but was told amendments were not possible, and he would need to first withdraw the unfair dismissal claim.
By the time the general protections claim was filed, it was out of time.
While Clarke accepted the counsel “acted in good faith” in seeking to first amend and then lodge a new claim, the excuse for the delay was not considered exceptional enough to justify the extension.
“The applicant misapprehended the limits of the avenues available to him to challenge his dismissal in the commission, leading to a delay in filing the present application, and acted quickly once he was disabused of those misapprehensions,” Clarke said.
“This turn of events does not rise to the level of exceptional circumstances either individually or collectively so as to enliven the discretion to extend time.”
Clarke said the conclusion was reached without the need to “resort” to Transurban’s submissions, the counsel should be held to a “higher standard” due to his “professional qualifications and history”.
The case: Transurban Limited (C2025/7364).
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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