Fair Work Act 2009

s 394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - no exceptional circumstances - application dismissed.

• [1] Mr Anthony Rabey was employed by Australia Post from Wednesday 24 June 2009 until Monday 17 February 2025. Mr Rabey was dismissed on Monday 17 February 2025 via a medical retirement on the grounds of medical incapacity as per the Australia Post Enterprise Agreement 2024. On Wednesday 26 March 2025, Mr Rabey applied to the Commission for an unfair dismissal remedy under the Fair Work Act 2009 (Cth).

• [2] An unfair dismissal application must be made within 21 days after the dismissal took effect;[1] or, within such further period as the Commission allows.[2]. In Mr Rabey's case, the period of 21 days ended at midnight on Monday 10 March 2025. His application is 16 days out of time.

• [3] Mr Rabey seeks an extension of time for his application. Australia Post opposes this.

• [4] The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, I must consider the factors in ss 394(3)(a)-(f) of the Act.

• [5] I conducted a determinative conference on Thursday 5 June 2025. Mr Rabey gave evidence for his case. Australia Post did not call any witnesses.

• [6] Having considered the evidence of the parties and the factors in s 394(3) of the Act, I find that there are no exceptional circumstances that justify an extension of time. Mr Rabey's application must accordingly be dismissed.

• [7] The detailed reasons for my decision follow.

• [8] The Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances.[3]

• • Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon.[4]

• • The circumstances themselves do not need to be unique not unprecedented, nor even very rare.[5]

• • Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[6]

• [10] In determining whether there are exceptional circumstances, I must consider the criteria in s 394(3) of the Act. I set out my consideration below.

• [11] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[7]

• [12] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[8]

• [13] An applicant's emotional state or mental health may provide part of a satisfactory explanation for a delay in lodging an application of this kind. However, depending upon the circumstances, that evidence must be cogent and inform the context and explanation as to why the application was delayed. Anger, distress and anxiety may not of themselves be sufficient.[9]

• [14] On or around Tuesday 15 August 2023, Mr Rabey commenced a period of leave due to health issues. It is not in contest that Mr Rabey has been diagnosed with Irritable Bowel Syndrome; an anxiety disorder; and suffers from panic attacks.

• [15] On Tuesday 14 January 2025, Australia Post wrote to Mr Rabey to put him on notice that:

• Clause 12.16(b) of the Enterprise Agreement permits staff to access up to 78 weeks continuous absence;

• Mr Rabey would exceed the 78 weeks on Tuesday 11 February 2025, and as such, it was likely Australia Post would commence the medical retirement process;

• If Mr Rabey wished to submit current medical information that he wanted Australia Post to consider prior to any decision he should send it to the relevant Employee Relations Case Manager; and

• If he did not intend to return to work, he did not need to do anything. In the absence of any further medical information by Tuesday 11 February 2025, he would receive a separate notification advising of his medical retirement.

• [16] Mr Rabey says that he attended work on Monday 10 February 2025 but was sent home. Mr Rabey also says that he attended work at other times to provide medical certificates.

• [17] On Monday 17 February 2025, Australia Post terminated Mr Rabey's employment via letter. Notably, the termination letter states:

Therefore, action will now proceed to retired on the grounds of medical incapacity. This will be with effect from close of business 17 February 2025. The decision is made pursuant to Clause 3 of the Australia Post Principal Determination.

You have a right to request a review of the decision to incapacity retire you on medical grounds by a Board of Reference Chairman, pursuant to Clause 5 - Grievances of the Australia Post Principal Determination, if you consider the decision to be harsh, unreasonable, unjust or unfair. An application for review of the decision must be lodged with Mr Sokratis Kokonis, Senior Manager - Case Manager, Employee Relations and Case Management [address redacted] within 14 days of the date of this notification.

If you wish to consider your rights in respect to alternative legal remedies including the time limits that apply under the Fair Work Act 2009, you will need to seek external advice.

• [18] That same day, Mr Rabey wrote to Australia Post seeking to appeal the decision to dismiss via the Australia Post internal appeals process.

• [19] On Tuesday 18 February 2025, Australia Post sent Mr Rabey the relevant application form for Mr Rabey to appeal the dismissal decision. On Thursday 20 February 2025, Mr Rabey responded to the application form, stating that he would endeavour to have it completed by Friday 21 February 2025. Mr Rabey did not file this document.

• [20] Mr Rabey's evidence is that around this time he was also exchanging text messages with Ms M,[10] Facility Manager for Australia Post. Mr Rabey said that he had explained to Ms M that he was unwell and unable to file an internal appeal. Mr Rabey did not provide any copies or specific details of the content of these messages.

• [21] Mr Rabey submits that the delay in filing his unfair dismissal application with the Commission was due to two factors.

• [22] Firstly, Mr Rabey says he was engaging with Australia Post in good faith to contest their decision to dismiss him. Though Mr Rabey has not filed evidence of his communications with Australia Post, I accept that after Mr Rabey was dismissed, he did tell Australia Post that he intended to challenge the dismissal through the Australia Post internal appeals process and that he had communicated that he was unwell.

• [23] However, Mr Rabey has not explained how engaging with Australia Post post-dismissal contributed to the delay in filing his unfair dismissal application. This is not a case where Mr Rabey had filed an internal appeal and was waiting for a response before he filed an unfair dismissal application with the Commission. From Mr Rabey's own account, he did not file an internal appeal.

• [24] Mr Rabey also indicated that he was confused about the internal appeals process. After listening to Mr Rabey's evidence at the determinative conference, I find it is more accurate to say that Mr Rabey disagreed with process and findings Australia Post made with regards to his health and fitness for work. Mr Rabey fundamentally disagrees with their position, and frames this as being confused about the process. Putting to one side that disagreement does not equal confusion, Mr Rabey did not explain how this contributed to his delay in filing this application.

• [25] I note for completeness that Mr Rabey did not argue that he was unaware of the 21-day time-limit for filing an unfair dismissal.

• [26] Secondly, Mr Rabey submits that the delay in filing was due to his medical condition, that was exacerbated by workplace stress and trauma.

• [27] Mr Rabey submitted a series of medical certificates as part of his evidence. The First Medical Certificate is dated Sunday 25 May 2025 and states, 'I have seen Mr Anthony Rabey for the last 4 years as he has an ongoing Irritable Bowel Syndrome and now has developed Anxiety Disorder with Panic Attacks'. The First Medical Certificate provides no further detail. The other medical certificates provide that Mr Rabey has a medical condition and would be unfit for work from Tuesday 13 May 2025 to Friday 13 June 2025 inclusive.

• [28] I accept that Mr Rabey has been diagnosed with IBS and mental health conditions. Mr Rabey gave evidence that in particular his IBS would often make it difficult to get out of bed some days. I accept this evidence and believe that his medical condition affects his life. However, Mr Rabey did not lead evidence as to the frequency or regularity of his symptoms.

• [29] Mr Rabey's evidence does not explain how hismedical condition affected his capacity to file his unfair dismissal application. Mr Rabey's medical certificates simply state that he was unfit for work. In an email to the Commission on Tuesday 29 April 2025, Mr Rabey stated that he would obtain a report that 'specifically explains how [his] medical condition affected [his] capacity to lodge on time'. No such report or explanation was provided. During the determinative conference, Mr Rabey also explained that his doctor offered to provide an explanation of how his medical condition had affected him, but Mr Rabey did not take this offer up as he did not want to trouble his doctor. This is an unusual position to take.

• [30] I appreciate that Mr Rabey is an unrepresented party and is suffering from a physical and medical health condition. However, this is his application - the onus is on him to prove that exceptional circumstances exist. From Mr Rabey's written and oral comments regarding medical documentation, he was aware that there needed to be a link between his condition and the delay in filing his application. Whilst the Commission can guide unrepresented parties in terms of process, the Commission cannot run a party's case for them.

• [31] Over the course of this matter, the parties copied my Chambers into extensive back and forth email correspondence involving Mr Rabey's request for his employment documents and records. I do not comment on the substance of the parties' correspondence. However, what is clear from the volume, detail and cogency of Mr Rabey's emails is that he has the capacity to engage in processes even when affected by his medical condition.

• [32] For completeness, I have also considered the combination of Mr Rabey's two reasons for the delay, being his engagement with Australia Post's appeal process and his medical condition. Mr Rabey has not provided a sufficient explanation around dates and what happened in the days following his dismissal and after the 21-day deadline for me to be satisfied that there is an acceptable reason for the delay in filing his application. This is a factor that weighs against a finding of exceptional circumstances.

2.2 Whether the person first became aware of the dismissal after it had taken effect

• [33] Mr Rabey acknowledged that he first became aware of his dismissal when the termination letter was sent to him, though he also says that he had difficulty processing it. In my view, this is a neutral consideration in whether there are exceptional circumstances.

• [34] In his email to the Commission on Tuesday 29 April 2025, Mr Rabey stated that he 'made active efforts to remain engaged with the organisation and clarify my employment status'. Further, that he 'continued trying to resolve the matter internally and sought assistance. [His] actions throughout demonstrate a clear intent to dispute the dismissal, not to delay the process'.

• [35] Mr Rabey did not provide any of the text messages or emails between himself and Australia post. Because of this, I cannot make any findings other than I accept that Mr Rabey did communicate to Australia Post that he intended to access the internal appeals process and that he was in communication with Ms M post-dismissal. I also accept Mr Rabey's evidence that he did not end up filing an internal appeal.

• [36] I find that based on Mr Rabey's evidence, he did not go further than indicated to Australia Post that he intended to challenge the dismissal and communicated that he was unwell. In terms of assessing whether Mr Rabey took action to dispute the dismissal, at best I find he took minimal action to dispute the dismissal. In the circumstances I find that this is a neutral consideration.

2.4 Prejudice to the employer (including prejudice caused by the delay)

• [37] Neither side made substantive submissions on this point. However, the absence of prejudice is not, of itself, conclusive of exceptional circumstances.[11] In these circumstances I treat this consideration neutrally.

• [38] The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[12] Further, the primary consideration is whether Mr Rabey has an arguable case.[13]

• [39] In summary, Mr Rabey contends that his dismissal was unfair on the basis there were procedural deficiencies; lack of reasonable adjustments; and discrimination against him based on his medical conditions. Australia Post disagrees with this.

• [40] Given the limited evidence provided and the highly contested nature of the relevant events, I am unable to make any merit findings at this preliminary stage. I find that this consideration is a neutral factor in assessing whether there are exceptional circumstances.

2.6 Fairness as between the Applicant and other persons in a similar position

• [41] Neither party made substantive submissions on this point. I find that there is nothing to weigh in my consideration.

• [42] I have found that the considerations in s 394(3) of the Act in this matter are either neutral or do not support a finding of exceptional circumstances.

• [43] I am sympathetic to Mr Rabey's ongoing struggles and acknowledge his health issues. However, I must assess the evidence as put before me. Having considered all the circumstances of this matter and the factors in s 394(3), I am not satisfied that there are exceptional circumstances.

• [44] As Mr Rabey's application was lodged beyond the initial period provided by s 394(2)(a) of the Act and an extension of time has not been granted, there is not a valid application before the Commission.

• [45] On that basis I order that Mr Rabey's application be dismissed.

[1] Fair Work Act 2009 (Cth) s 394(2).

[2] Ibid s 394(2)(b).

[3] Ibid ss 394(2)-(3).

[4] Nulty v Blue Star Group Ltd [2011] FWAFB 975 [13].

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 [39].

[9] See Underwood v Terra Firma Pty Ltd [2015] FWCFB 3435 [15]-[16]; Mathew Oliver v Bunnings Group Limited [2021] FWCFB 3496.

[10] Pseudonym used as this individual was not called to give evidence.

[11] Jovcic v Coopers Brewery Limited [2023] FCA 797.

[12] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 para 14.

[13] See Craig Thomson v Linx Cargo Care Pty Ltd [2022] FWCFB 40 [32]-[34].

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