The Applicant's claim under General Protections is arguably outside the limitation period. The 22-day delay requires a compelling explanation to overcome this procedural hurdle. The Applicant's assertion that Fair Work initially advised them they could not assist due to the pre-probationary employment and suggested contacting the NDIS is crucial. However, the Applicant's subsequent conversation with a lawyer, who advised pursuing a General Protections claim, and the later Fair Work statement that an application could be made, introduces complexities.
The argument hinges on whether the Applicant's reliance on Fair Work's initial advice constitutes reasonable cause for the delay. The court will consider several factors:
Fair Work's initial advice: The exact wording of Fair Work's advice is critical. Was it a definitive statement that no recourse was available, or was it less conclusive? Evidence documenting this interaction (e.g., call logs, notes) is essential. Ambiguity in Fair Work's advice could support the Applicant's claim of reasonable reliance. The fact that the advice directed the Applicant to the NDIS, a seemingly unrelated entity, further strengthens this argument. The court may consider whether Fair Work's advice was misleading or negligent.
The lawyer's advice: The lawyer's advice to pursue a General Protections claim provides a counterpoint to Fair Work's initial guidance. This demonstrates the Applicant's proactive attempts to seek legal counsel after the initial rejection. The timing of this advice is crucial; if it was received promptly after the initial Fair Work contact, it further supports the argument of reasonable reliance. Evidence of this advice (e.g., email correspondence, retainer agreement) is necessary.
Fair Work's subsequent statement: The Applicant's claim that Fair Work later stated they could apply is significant. This suggests a potential inconsistency or error in Fair Work's initial advice. The timing of this statement is critical; the closer it is to the application deadline, the stronger the argument for reasonable reliance. Again, evidence documenting this conversation is crucial.
Jurisdictional considerations: The specific jurisdiction's rules regarding limitation periods and the acceptance of "reasonable cause" for delays must be carefully considered. Case law within that jurisdiction that addresses similar situations involving reliance on government agencies' advice should be thoroughly researched and cited.
The nature of the alleged breach: The strength of the underlying General Protections claim itself will influence the court's willingness to overlook the procedural delay. A strong case with compelling evidence of unlawful termination is more likely to lead to a favorable outcome, even with a late application.
Argument Structure:
The argument should be structured to emphasize the Applicant's reasonable reliance on Fair Work's initial, arguably misleading, advice. It should highlight the proactive steps taken by the Applicant to seek legal counsel and the subsequent clarification from Fair Work. The argument should directly address the 22-day delay, framing it as a consequence of the Applicant's reasonable reliance on incorrect information provided by a government agency. The argument should conclude by urging the court to exercise its discretion to allow the application, given the circumstances and the merits of the underlying claim. The argument must be supported by evidence documenting all interactions with Fair Work and the lawyer. Relevant case law supporting the application of "reasonable cause" in similar situations must be cited.
