The court considered the relatively short filing delay and the absence of any identified prejudice
The Federal Court has granted Djallarna Hamilton an extension of time to file a general protections court application against her former employer, the Department of Justice of Community Safety.
Hamilton alleged her dismissal violated the Fair Work Act 2009. The extension was necessary as her application, initially due by 26 October 2023, was filed on 31 October 2023, five days late.
Hamilton commenced employment with the department as a project officer with the Local Aboriginal Justice Action Committee in the Mallee Region. She was dismissed shortly before the end of her probationary period.
Hamilton subsequently lodged a complaint with the Fair Work Commission (FWC), claiming her dismissal breached the Fair Work Act. The FWC issued a certificate under s. 368(3)(a) of the act, indicating that all reasonable attempts to resolve the dispute had been or were likely to be unsuccessful.
Hamilton sought an extension of time under s. 370(a)(ii) of the Fair Work Act, explaining her delay based on personal circumstances. Although the department initially did not object to the extension, it later opposed the request, citing Hamilton's lack of engagement and failure to file supporting materials.
Despite these objections, the Federal Court granted the extension. The decision was based on several factors, including the relatively short delay in filing, Hamilton's acceptable explanation for the delay, and the absence of any identified prejudice to the Department caused by the delay. The court also considered the merits of Hamilton's substantive application, deemed arguable, and noted that the department's initial non-objection supported the decision to grant the extension.
The court acknowledged the department's concerns about Hamilton's engagement but noted that she was not in default of any order. The court concluded that Hamilton's application and statement of claim presented a prima facie case under Part 3-1 of the Fair Work Act regarding her dismissal. The court emphasized that the applicant had actively contested her termination and had provided a reasonable explanation for the delay in filing her application.
The decision allows Hamilton to pursue her claim, with the court granting her leave to file the application until 31 October.
