Fair Work Act 2009

s.394 - Unfair dismissal

ICLED Australia Pty Limited T/A SignsNational Group

Application for an unfair dismissal remedy - unfair dismissal application filed out of time - depression - medical evidence - circumstances not exceptional on the evidence provided - application dismissed

[1] Ms Mamo was dismissed from her employment on 30 March 2021. Section 394(1) of the Fair Work Act 2009 ("the Act") requires Ms Mamo make her application for an unfair dismissal remedy within 21 days after her dismissal took effect, being midnight on 20 April 2021.[1] Ms Mamo did not make her application until 22 April 2021.

[2] In the Form F2 Application filed by Ms Mamo she indicated that she was notified of her dismissal on 1 April 2021 and that it took effect on 2 April 2021, which has the appearance of her claim being filed within time. The Form F3 filed by ICLED Australia Pty Limited (ICLED Australia) records the termination taking effect on 30 March 2021. Ms Mamo later agreed that the termination happened by SMS on 30 March 2021. It is not clear how Ms Mamo could be so specific and yet so wrong, but nonetheless by the time of the hearing it was agreed between the parties that Ms Mamo required an extension of time to lodge her claim.

[3] Ms Mamo submits that there were exceptional circumstances, primarily relying upon her poor mental state following her dismissal.

[4] For the reasons that follow I am not satisfied that there were exceptional circumstances and as such I cannot grant Ms Mamo an extension of time.

Section 394 - Exceptional Circumstances

[5] An unfair dismissal remedy must be made within 21 days after the dismissal took effect (per s.394(2)), or within such further period as the Commission allows (per s.394(3)).

[6] The Commission may only allow a further period if it is satisfied that there are "exceptional circumstances" (per s.394(3)). The Full Bench in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [2011] FWAFB 975 described exceptional circumstances as follows:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[15] A finding that there are "exceptional circumstances", taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when "exceptional circumstances" are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended."

[7] Section 394(3) specifically requires the Commission to take into account the following matters when considering whether there are exceptional circumstances, viz:

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the person and other persons in a similar position."

[8] These factors, considered separately or in combination, might constitute exceptional circumstances, even if no single factor is exceptional.[2]

[9] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156, [2018] FWCFB 901 the Full Bench found that:

(a) generally the Commission must consider all of the relevant circumstances because factors considered in combination might support a finding of exceptional circumstances even though no one particular factor is exceptional (at [17] and [38]);

(b) the obligation to "take into account" the matters set out in s.394(3) means that each of the listed matters must be treated as a matter of significance in the decision-making process insofar as it is relevant (at [19]);

(c) no one factor needs to be exceptional in order to enliven the discretion to extend time (at [38]); and

(d) individual matters might not be particularly significant when viewed in isolation, but the Commission must consider the matters collectively and ask whether they disclose exceptional circumstances (at [39]).

[10] I am required to take into account "the reason for the delay".[3]

[11] The test invariably applied in such matters is whether an applicant has a 'credible or reasonable' explanation for the delay. The reasonableness of an applicant's explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.

[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay.[4] That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).

[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.

[14] On 1 June 2021, and in response to a query from the Commission, Ms Mamo gave an explanation for the delay that included the following:

"I had truly thought that I had lodged my application within the allocated time, if I was out by 2 days I apologise. I am not one to make excuses for dropping the ball. After I was sacked for no reason over text message, I took it extremely hard and was unable to get out of bed for over a week. I was unable to actively work and found it increasingly hard to motivate myself. I went and saw a councilor who helped me see this in a different light.

I have recently secured new employment that has been extremely demanding and while in training I am working 7 days a week, which is how I had then neglected to respond to this email. I have 5 children aged 16, 15, 12, 10 and 8 years old. My partner is an international Pilot for Qantas who prior to now has been unemployed for 15 months and has been in intense training for the past 6 weeks due to learning a new aircraft and is currently in Melbourne doing simulators. I drive my children to see their dad 3 times a week and because he lives far away, since we moved, it takes up to 7 hours a week with traffic in driving to him. In saying this, I am mealy demonstrating the stress and time restraints I have been under over the past 2 months, along with the anxiety and depression I experienced after this incident of being sacked over text message. I was sacked because I was stern in requesting I get my weekly pay cheque. I have had to beg and hassle for my pay since the beginning of employment."

[15] On 25 June 2021 Ms Mamo sent an email to the Commission that contained what I have taken to be her submission and also her direct evidence in support of her application for an extension of time. Ms Mamo's evidence included the following:

"... I was not functioning after loosing my job I held with Signs National for 2.5 years. I was and am the sole earner for my family of 7, My partner is an international Pilot for Qantas and has not worked in a very long time. Even though I had wanted to end this bad working relationship throughout the time, I knew I couldn't as we relied on the money I earned to survive.

... [the dismissal] affected me extremely, emotionally and physically as I was sacked immediately after being told I am an exceptional employee.

I have as evidence to show I was 2 days late as I was not functioning and even though I had thought I had timed it to the very last day (21st day) I got it wrong. In the 21 days I had to fill it in I kept saying "Do it today Bianca" and each day I said tomorrow......".

[16] Ms Mamo also relied on two statements of support from long-time and close friends. Ms Minkara said she witnessed a significant "decline" in Ms Mamo's "behaviour", that Ms Mamo was "noticeably withdrawn" and "was sleeping all day between school drop off." Ms Chillari says she was "witness to the heavy toll being fired ... had on Bianca's life and health". Ms Minkara and Ms Chillari have supported their friend however, for the reasons outlined below, their statements do not assist me to decide the matters at hand.

[17] Ms Mamo also provided Earnings Summary documents relating to her work as a consultant for The Body Shop. These documents show Ms Mamo was active in March 2021 and virtually inactive in April 2021.

[18] Ms Mamo also relied on a report from Dr Paul Pusey, who has a doctorate in clinical psychology and practices as a clinical and forensic psychologist. Dr Pusey's report includes the following:

"Ms. Mamo has advised me that she was recently terminated from her employment, a decision that she believes neither reflects the quality of the work she produced nor the contribution she made to the financial viability of her previous place of employment. Following her being made aware of the decision to terminate her employment, she attempted to book for treatment sessions to support her capacity to process this event in addition to being able to make decisions regarding what if any action she planned to engage in to address the treatment she had received.

It is my opinion that Ms. Mamo's mental health has been significantly and negatively impacted by the circumstances relating to the termination of her employment in particular her views regarding its fairness and equity. I have observed a significant decline in her level of motivation, it has impacted her view of self and both the decisions that she makes and how she makes them. From my observation, a significant portion of her sense of self was invested in her performance at work, and the decision making by her employer has negatively impacted this. Supporting the rebuilding of her sense of self has comprised a significant portion of our work since this has occurred and will likely continue to do so."

[19] Sometimes an applicant's medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there were exceptional circumstances connected to an applicant's mental illness and in other cases the Commission has not found exceptional circumstances.

[20] In Roberts v Westech IT Solutions Pty Ltd[5] Senior Deputy President O'Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the applicant's depression. The applicant provided advice from his doctor that included details of the applicant's clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the applicant also said he had been "given the run around by the phone system which took some time to navigate around", the effect of which appears to have been made worse by the applicant's mental health.

[21] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person's life, but that such responses and consequences are not unusual.[6]

[22] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting[7] the Full Bench accepted a finding at first instance that the applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however "[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period." The Full Bench affirmed the finding at first instance that the medical evidence "did not positively demonstrate that the Appellant's depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame" and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O'Callaghan in Roberts but found "the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context."[8]

[23] In Merhi v Commonwealth of Australia[9] the Full Bench assessed the applicant's evidence from her treating psychologist concerning her "major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder" primarily by reference to the psychologist's assessment of the applicant's capacity to act. The Full Bench endorsed the finding at first instance that on the evidence "the appellant's mental state did not prevent her capacity to engage in day to day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay."[10]

[24] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit.

[25] In summary the following principles apply:

(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);

(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant's capacity to lodge the application within the statutory time limit (per Roberts and Underwood);

(iii) the evidence should positively demonstrate that the applicant's depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Underwood and Merhi); and

(iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).

[26] Ms Mamo provided very little medical evidence at all about her mental capacity to lodge her application in the period prior to 22 April 2021. The report from Dr Pusey falls short of what is required in a number of ways. Firstly, the report does not indicate when Dr Pusey first saw Ms Mamo, other than to indicate that he has been Ms Mamo's "treating practitioner" since her referral to him in "April 2021". Given that Ms Mamo was dismissed on 30 March 2021 and filed her application on 22 April 2021, the date when Dr Pusey first saw Ms Mamo is very important. At the Hearing on 6 July 2021 Ms Mamo indicated that she saw her GP prior to 18 April 2021, that her GP referred Ms Mamo to Dr Pusey under a mental health plan and that it took some time thereafter for Ms Mamo to meet with Dr Pusey. Importantly, Ms Mamo acknowledged that she did not see Dr Pusey before 22 April 2021.

[27] Secondly, Dr Pusey's report does not give any opinion at all about Ms Mamo's capacity to make an application to the Commission. Dr Pusey says he has observed a "significant decline" in Ms Mamo's "level of motivation" and that "supporting the rebuilding of her sense of self has comprised a significant portion of our work since [the dismissal] has occurred and will likely continue to do so". The period over which this apparent decline has taken place is not stated, and Dr Pusey's reference to a "decline" says nothing of Ms Mamo's actual capacity to engage in day to day activities and/or to lodge her application in the relevant period.

[28] As the Full Bench in Shaw v ANZ Bank said: stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. Dr Pusey's report evidences the unfortunate circumstances for Ms Mamo after her dismissal but does not establish that there were exceptional circumstances of a kind that go beyond the personal responses considered in Shaw.

[29] Similarly, Ms Mamo's own evidence and the evidence of her long-time friends, do not provide a proper basis for me to find that there were exceptional circumstances caused by her emotional and physical response to the dismissal.

[30] Ms Mamo also relied upon the fact that she has five children and that her husband is an international pilot currently grounded because of the global pandemic. She explained at the Hearing that "whatever energy she had [in the time straight after her dismissal] was devoted to [her] kids because you have to show up for your kids." I accept that needing to meet the additional responsibilities of a larger family added to Ms Mamo's burden (putting aside Ms Mamo's account that her husband the pilot was not flying and was not otherwise working) but on the authorities referred to above, I am unable to find that these additional responsibilities establish that there were exceptional circumstances.

[31] In light of all the evidence I cannot be satisfied that Ms Mamo did not have the mental or physical capacity to commence her application in the time period set by s.394(1) of the Act.

[32] The primary question for determination is whether there are exceptional circumstances. Ms Mamo's capacity to make her application is but one factor when considering the reason for the delay (per s.394(3)(a)). Where Ms Mamo's principal argument centres upon her mental state after her dismissal, my findings about this aspect of her case will have significant influence on the outcome of her wider application.

[33] Ms Mamo has not provided a credible and reasonable explanation for the whole period of the delay. As such, the reasons for delay point against a finding that there were exceptional circumstances.

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

[34] I am also required to take into account "whether [Ms Mamo] first became aware of the dismissal after it had taken effect".[11]

[35] On many occasions at the Hearing Ms Mamo referred to the unfairness of being terminated without notice by SMS. Putting aside the fact that Ms Mamo nominated two wrong dates on her Form F2 Application, I am satisfied that Ms Mamo was notified of the dismissal on the same day that it took effect and that she first became aware of the dismissal on that day. Accordingly, she had the full period of 21 days to lodge the unfair dismissal application. This consideration does not support Ms Mamo's submission that there were exceptional circumstances.

[36] In taking into account "any action taken by the person to dispute the dismissal"[12] I note that Ms Mamo took no steps to dispute her dismissal prior to making her unfair dismissal remedy application.

[37] This is not a factor that supports the existence of any exceptional circumstances nor the exercising of the Commission's discretion to grant an extension of time.

[38] I must consider the "prejudice to the employer (including prejudice caused by the delay)."[13]

[39] ICLED Australia led no evidence at all and did not assert any prejudice created by the two-day delay. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time.

[40] Given that the delay is very short, it is unsurprising that there is a lack of prejudice to the employer. In these circumstances the absence of prejudice to the respondent does not weigh in favour of a finding of exceptional circumstances.[14]

[41] Section 394(3)(e) requires that I take into account "the merits of the application" when considering whether there are exceptional circumstances and the extension of time more generally.

[42] Little evidence was led by the parties and it is not possible or appropriate to make any firm or detailed assessment of the merits that at this juncture. There are sound reasons why the Commission should not receive evidence and make factual findings on contested issues at this stage of the proceedings: most notably because parties should not have to present their evidentiary case twice.[15]

[43] In this context it is sufficient that an applicant establish that her claim is not without merit.[16] The weight to be given to this consideration is dependent on the extent to which there is merit in the substantive application.[17]

[44] ICLED Australia maintained at hearing that Ms Mamo was an independent contractor.

[45] The paperwork connected to Ms Mamo's engagement with the ICLED Australia appears consistent with Ms Mamo being engaged as an independent contractor rather than as an employee. If Ms Mamo was in fact an independent contractor then her claim is without merit.

[46] Ms Mamo said that ICLED Australia originally offered her employment but then insisted that she provide invoices and be treated as an independent contractor in order to "save on PAYG tax."

[47] Taking Ms Mamo's case at its highest, Ms Mamo says that in truth she was a common law employee and that she was dismissed without notice by SMS after raising concerns about monies she was owed.

[48] ICLED Australia's principal submissions on the merits of the claim rely on the fact that he was a small business, that he and Ms Mamo had been friends for a long time, but that he was offended that she had threatened to stop working for him unless she was paid. Mr Strnad thought that Ms Mamo's message to him about payments owing, sent mid-afternoon while he was working and not in a position to make online payments, was an unacceptable threat made by her.

[49] I am prepared for present purposes to accept that Ms Mamo does have an arguable case. It is quite possible that she would be able to establish that she was an employee and, if so, it is very likely that she would be able to establish that she was dismissed unfairly. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[50] Finally I must take into account "fairness as between the person and other persons in a similar position."[18]

[51] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. I am not aware of any persons or cases that are relevant to the question of fairness as between Ms Mamo and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

[52] As referred to above, the Full Bench in Stogiannidis reasoned that no one factor needs to be exceptional in order to enliven the jurisdiction to extend time and individual factors might not be particularly significant when viewed in isolation, but that I must also consider the matters collectively and ask whether they disclose exceptional circumstances.[19]

[53] In this case none of the above matters considered individually point towards there being any exceptional circumstances. For completeness I am still not satisfied that there are exceptional circumstances after reviewing the above matters collectively.

[54] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by Ms Mamo, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

[1] Allowing for the operation of s.36(2) of the Acts Interpretation Act 1901 (Cth).

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156, [2018] FWCFB 901

[3] Fair Work Act 2009 (Cth), s.394(3)(a).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (2018) 273 IR 156, [2018] FWCFB 901 at [30]- [40] and Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [36].

[5] Glyn Roberts v Westech IT Solutions Pty Ltd [2014] FWC 4226

[6] Shaw v Australia and New Zealand Banking Group Ltd (t/as ANZ Bank) (2015) 246 IR 362, [2015] FWCFB 287 at [15].

[7] Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting [2015] FWCFB 3435 at [15]- [16].

[8] [2015] FWCFB 3435 at [15].

[9] Linda Merhi v Commonwealth of Australia, represented by Services Australia (formerly the Department of Human Services) [2020] FWCFB 3523 at [8], [37]-[39].

[11] Fair Work Act 2009 (Cth), s.394(3)(b).

[12] Fair Work Act 2009 (Cth), s.394(3)(c).

[13] Fair Work Act 2009 (Cth), s.394(3)(d).

[14] Miller v DPV Health Ltd [2019] FWCFB 6890 at [21] citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [38].

[15] Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [72].

[16] Thomas Cosgrove v Clarity Interiors [2020] FWCFB 5464 at [33], citing Kornicki v Telstra-Network Technology Group (1997) 140 IR 1 at 11, Print P3168

[17] Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [71]

[18] Fair Work Act 2009 (Cth), s.394(3)(f).

[19] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156, [2018] FWCFB 901 at [38]- [39].

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