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[2023] FWC 801
General information, not legal advice.
Fair Work Commission
2023-04-03
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - application filed 21 days out of time - reasons for delay unsatisfactory - no exceptional circumstances - application dismissed.
[1] On 5 January 2023, Mr Brett Anderson (Applicant) filed an unfair dismissal application (Application) with the Fair Work Commission (Commission). The Respondent to the Application is Hannigan Civil Pty Ltd (Respondent).
[3] In accordance with s.394(2)(a) of the Act, the Applicant should have filed his Application by 15 December 2022 to be within the 21 day time period. It follows that the Applicant has filed his Application 21 days late, or 42 days after his employment ceased. It is unnecessary at this stage of proceedings, given the Application has been filed out of time and the parties agree that the Applicant ceased employment with the Respondent on 24 November 2022, for me to determine whether or not the Applicant was dismissed by the Respondent.
[4] An unfair dismissal application must be made within 21 days after a dismissal takes effect, or in such further time as the Commission may allow. The 21 day period prescribed in s.394(2)(a) of the Act does not include the day on which the dismissal took effect. Given that the Application in this matter has been filed 21 days beyond of the statutory 21 day time period, it is necessary that I determine whether to extend the time for the filing of the Application under s.394(2)(b) and (3) of the Act.
[6] Granting an extension of time requires me to be "satisfied" that there are "exceptional circumstances". The Full Bench of this Commission in Nulty v Blue Star Group Pty Ltd (Nulty), in relation to the term "exceptional circumstances", stated:
"[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.
[14] Mere ignorance of the statutory [21 day] time limit in s.366(1)(a) [or s.394(2)(a)] is not an exceptional circumstance..."[3]
[15] A finding that there are "exceptional circumstances", taking into account the matters specified in paragraphs 366(2)(a) to (e) [s.394(a) to (f)], 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) [s.394(a) to (f)] 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] The matters that I need to take into account in reaching a state of satisfaction as to the existence of exceptional circumstances are outlined in s.394(3) of the Act, which reads:
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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."
"[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. 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."
[12] The Applicant (relevantly) gave the following reasons for his delay in filing his Application:
a) In the afternoon of 23 November 2022, the Applicant became unwell (with a fever and vomiting). He notified Mr Nathan Hannigan, Director of the Respondent, that he was unwell at the time.
b) On the morning of 24 November 2022, the Applicant telephoned Mr Hannigan and advised him that he was too unwell to attend work that day. The Applicant's 18 month old daughter was also unwell, and unable to attend day care that day.
d) The Applicant and his daughter continued to be unwell. On 30 November 2022, the Applicant took his daughter to the doctor, and she was referred to a specialist at John Flynn Hospital, Queensland (the Applicant resides in Goonellabah, NSW). On 2 December 2022, the Applicant's partner drove him to Lismore Base Hospital, where he was admitted and then released that day. Within the next 24 hours the Applicant returned to Lismore Base Hospital and was admitted for at least 24 hours, and then discharged. The Applicant and his daughter continued to be unwell over the next few weeks.
e) The Applicant attended upon John Flynn Hospital on 6 December 2022 for his daughter's specialist appointment. At this time, his daughter was scheduled for surgery on 19 December 2022. The Applicant's daughter was unable to attend day care between 24 November and 9 December 2022, and from 19 December 2022 to 2 January 2023. The Applicant says he was a carer for his daughter whilst she was unwell, and was himself only able to consume fluids for a number of weeks (due to his own on-going illness). I note that the Applicant lives with his partner and daughter, and his partner is engaged in full time employment.
[14] In support of his reasons for delay, the Applicant relies upon a medical certificate from Dr Brian Witt, dated 30 January 2023 (in respect of himself), a medical certificate/report from Dr Vicki Lui, dated 30 January 2023 (in respect of his daughter), and a Mental Health Plan (for himself), dated 16 January 2023.
[16] The Respondent points to various inconsistencies in the Applicant's evidence as to his reasons for delay. It highlights that despite the Applicant's assertions that he was bedridden or unable to function during the period prior to the filing his Application, the Applicant was able to make telephone calls, participate in lengthy car rides on multiple occasions, attend medical appointments for himself and his daughter, and care for his daughter whilst his partner was at work.
[17] The Respondent draws specific attention to the fact that the Applicant's partner completed his Form F2 on his behalf and filed same on 5 January 2023. In other words, the Respondent highlights that there is no reason, even putting the Applicant's evidence at its highest (as to his incapacity and reasons for delay), that the Applicant could not have instructed his partner to complete and file his Application within the 21 day statutory time period. In short, the Respondent submits that the inescapable conclusion from the whole of the Applicant's evidence is that he was not aware of the 21 day statutory time limit until shortly prior to the filing of his Application, and that his evidence and related assertions as to his delay are simply a retrospective recalibration of events that seek to justify his delay, as opposed to being genuine reasons for delay.
[18] Having regard to the evidence and submissions of the parties, I make the following findings:
a) Whether or not a person decides to avail themselves of legal advice or representation is a matter for them. It is not a matter that explains a delay in filing an application. The Commission's website (running 24/7) has a wealth of information going to the filing of applications (especially unfair dismissal applications and dealing with requests for an extension of time) absent the 'need' for legal advice or representation.
b) The medical evidence relied upon by the Applicant does not establish (in any probative sense) that he was prevented during each and every day of the 21 day time period post the cessation of his employment, or each and every day of the further 21 days post that 21 day time period ending, from filing his Application. Dr Witt's medical certificate post-dates the filing of the Application by 25 days. It speaks to information that has been conveyed to him by the Applicant, as opposed to any assessment or examination of the Applicant during the whole or the majority of the 42 day period post the Applicant's cessation of employment with the Respondent. Similar observations can be made of the Applicant's Mental Health Plan. Dr Liu's medical certificate also post-dates the filing of the Application by 25 days. It speaks to the medical circumstances of the Applicant's daughter, and notes that she was unable to attend day care during specific periods of time. It does not explain the Applicant's delay in filing his Application beyond confirming that the Applicant was a carer for his daughter during her period of illness.
[19] In Bianco Mamo, Deputy President Easton outlined issues associated with illness and/or associated incapacity going to asserted reasons for delay in the filing of an application, as follows:
"[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 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.
[22] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting 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."
[23] In Merhi v Commonwealth of Australia 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."
[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.
(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
[21] In view of the findings I have made in the foregoing paragraphs, I do not accept that the Applicant has provided credible or "probative evidence" confirming that he was prevented (or unable) to file his Application within 21 days of the cessation of his employment on 24 November 2022. Rather, I find that that the Applicant's reasons, for the 21 day delay in filing his Application, are unsatisfactory. The reasons for delay relied upon by the Applicant do not, or do not sufficiently, explain his delay. I thus conclude that the Applicant's reasons for delay in this case are such that they weigh against any finding as to the existence of exceptional circumstances.
Whether the Applicant became aware of the dismissal after it had taken effect[17]
[22] There is no dispute that Applicant was made aware of the cessation of his employment on the day that it took effect. I consider this criterion to be a neutral consideration that weighs neither for nor against any finding as to the existence of exceptional circumstances in this case.
Action taken by the Applicant to dispute the dismissal[18]
[23] The Applicant raised concerns as to the cessation of his employment with Mr Hannigan of the Respondent on 26 November 2022. No further contact was made by the Applicant with the Respondent prior to filing his Application. I consider this criterion to be a neutral consideration that weighs neither for nor against any finding as to the existence of exceptional circumstances in this case.
[25] The Applicant says that he has been wrongly and falsely accused of serious criminal offences, and was dismissed by the Respondent (on 24 November 2022) for such reasons.
[26] The Respondent says that the Applicant resigned from his employment, but that in any event it had a valid reason for his dismissal, and that in the circumstances his dismissal would be found to be fair.
"In considering whether to accept an application which has been lodged outside the time ... the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar ... It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application ... In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case ...".[23]
"If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."[25]
[30] All in all, I consider that the merits of the Application in these proceedings are a neutral consideration. I weigh the merits neither for, nor against, any finding as to the existence of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position[27]
[31] I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[28] Neither party made any relevant submissions as to this criterion. Accordingly, I consider that this criterion to be a neutral consideration that weighs neither for nor against any finding as to the existence of exceptional circumstances in this case.
[32] Taking into account the criteria set out under s.394(3)(a)-(f) of the Act:
(a) one of the criteria (reason for delay), considered individually, points towards there being no exceptional circumstances; and
(b) considering the requisite criteria on a collective basis, there is no basis for me to be satisfied that exceptional circumstances exist (i.e. one criteria weigh against any finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[29]
Ms Eleisha Went, the Applicant's partner, appeared for the Applicant.
Mr Cameron Spence, Workplace Relations Manager, Master Builders Association of NSW, appeared for the Respondent.
[2] The Respondent is a member of the Master Builders Association of NSW. See s.596(4)(a) of the Fair Work Act 2009.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901.
[6] Section 394(3)(a) of the Act.
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, at [39].
[10] Applicant's Witness Statement, 23 January 2023.
[12] Respondent's Closing Submissions, 17 March 2023.
[13] See email from Applicant's representative, Ms Went, 24 March 2023, 1.55pm.
[15] [2021] FWC 3903, at ]19]-[25].
[16] See also, Donna Muir McMeeken v Action Industrial Catering Pty Ltd [2012] FWA 4035; Construction, Forestry, Mining and Energy Union v Crossy's Crane Hire Pty Ltd (t/as Crossy's Crane Hire) [2013] FWC 8866; Byrnes v Department of Broadband, Communications and Digital Economy [2012] FWA 7744.
[17] Section 394(3)(b) of the Act.
[18] Section 394(3)(c) of the Act.
[19] Section 394(3)(d) of the Act.
[20] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, at [38]).
[21] Section 394(3)(e) of the Act.
[24] Kornicki v Telstra-Network Technology Group [1997] 140 IR 1, at 11 (PR3168, 22 July 1997, Ross VP, Watson SDP, Gay C).
[25] Ibid. See also Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, at [36].
[26] Kyvelos v Champion Socks Pty Ltd, Print T2421, at [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, cited in Byron Stephen Gill v IFM Services Pty Ltd [2021] FWC 5962, at [33].
[27] Section 394(3)(f) of the Act.
[28] Pitrau v Barrick Mining Services Pty Ltd [2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37].
[29] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901.
[30] Noting the definition of "exceptional circumstances" set out in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, at [13].
Printed by authority of the Commonwealth Government Printer
Brett Anderson
Hannigan Civil Pty Ltd [2023] FWC 801
(1995) 67 IR 298
(2012) 255 IR 144