Fair Work Act 2009

s.365 - General protections

Chief Minister Treasury And Economic Development Directorate Territorial

Application to deal with contraventions involving dismissal

• [1] This decision concerns an application by Mr Christopher Humphries (Humphries/Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).

• [2] In the Application, Mr Humphries stated that his employment with the Australian Capital Territory (represented by the Chief Minister Treasury and Economic Development Directorate Territorial) (Respondent) commenced on 11 November 2009 and that his dismissal took effect on 23 May 2023. The Application was made at 11:35pm on 14 June 2023.

• [3] Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s.366(2). The Application was therefore made 1 day outside the 21 day period. The Applicant asks the Commission to grant a further period for the Application to be made under s.366(2).

• [4] The matter was allocated to my Chambers to determine whether an extension of time should be granted under s.366(2).

• [5] In accordance with directions issued by the Commission, both parties were given an opportunity to file materials in support of, or in opposition to, the Applicant's application for an extension of time.

• [6] The matter was heard on 3 August 2023. The Applicant was self-represented. The Respondent was represented by Ms A Sydney, Principal Solicitor, ACT Government Solicitor.

• [7] For the reasons that follow, I decline an extension of time under s.366(2).

• [8] The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute must be made only if it is satisfied that there are 'exceptional circumstances'. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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 can be considered exceptional.[2]

• [9] The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [10] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

(c) prejudice to the employer (including prejudice caused by the delay);

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

• [11] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.

• [12] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[3]

• [13] I now consider these matters in the context of the Application.

• [14] The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, however all of the circumstances must be considered.[4]

• [15] The Applicant readily conceded that he made an 'honest mistake' in the calculation of the 21 day period.[5] The mistake was that the Applicant counted the day following the day his dismissal took effect as day zero, resulting in the Application being made 22 days after the dismissal took effect.[6]

• [16] It is well established that a lack of knowledge, ignorance or miscalculation of the applicable time limits for the filing of general protections or unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[7]

• [17] However, in this matter, the Applicant submitted the miscalculation was a consequence of medical incapacity, exacerbated by his dismissal and an ongoing personal matter. The Applicant submitted that collectively these matters had the effect of impairing his cognitive function to calculate the due date by which the Application had to be made.

• [18] In relation to medical incapacity, the Applicant stated that he has a mental health condition and in addition to that, he was experiencing "flu symptoms" for approximately two weeks of the 21 day period.

• [19] In relation to the personal matter, the Applicant stated that in March 2023, and following the breakdown of a domestic relationship, the Australian Capital Territory's Child and Youth Protection Services placed his children in a kinship care arrangement.

• [20] The Applicant also contends that he was experiencing financial difficulties following his dismissal and required financial assistance from his father to pay the Application fee which contributed to the delay.

• [21] In Victor Blanco v White Bathroom[8] (Blanco), Deputy President Easton set out a helpful summary of the authorities relevant to medical incapacity in the context of an application for an extension of time as follows:

[44] 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 to be exceptional circumstances connected to an applicant's mental illness and in other cases the Commission has not found exceptional circumstances.

[45] 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.

[46] Similarly in Beard v Valley Industries Limited Deputy President Saunders found that there were exceptional circumstances "as a result of the significant deterioration in his mental state shortly after his dismissal, [the applicant] was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal." In that matter the Applicant's claim was supported by medical evidence from his GP, including evidence that two different medications prescribed to the Applicant that had negative side effects. The Deputy President noted that "after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission".

[47] 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.

[48] 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."

[49] 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."

[50] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that 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 without proper and specific medical evidence.

[51] 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, Beard 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 Beard, Underwood and Merhi); and

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

• [22] I agree with the summary of principles set out by Deputy President Easton in Blanco, that if a medical condition is relied on, there should be supporting evidence demonstrating that it had a material impact upon an applicant's capacity to file an application within the statutory time limit and that an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient.

• [23] In relation to the Applicant's mental health condition, the Applicant tendered an Independent Medical Examination Report (IME Report) prepared by Dr Scott Chambers, a Consultant Psychiatrist.[9] The IME Report is dated 22 March 2023 and is based on a medical assessment undertaken on 7 March 2023. The medical assessment was undertaken for the purposes of assessing the Applicant's fitness to return to work following him commencing a period of personal leave on or around 22 December 2022.

• [24] While the IME Report states that the Applicant has a major depressive illness (in partial remission) and persisting anxiety and related concerns regarding family stressors that may impact his capacity to complete his duties, the IME Report concludes that the Applicant is able to perform his usual duties on restricted hours.[10] The IME Report also records that the Applicant is independent and able to perform a range of domestic and personal activities.[11]

• [25] Consistent with the conclusions reached by Dr Chambers, the Applicant returned to work on 9 May 2023.

• [26] Although the medical assessment was undertaken over two months prior to the Applicant's dismissal, to the extent that the Applicant relies on the IME Report in support of his application for an extension of time, it does not positively demonstrate that his mental health condition was such to prevent the lodging of the Application within the 21 day time frame. To the contrary, it concludes that he was fit to the return to work and go about his daily activities.

• [27] Similarly, in relation to the Applicant's contention that he was experiencing "flu symptoms" during the 21 day period, the Applicant has not adduced any evidence of when those symptoms were experienced, or any medical evidence that those symptoms incapacitated him such to prevent the filing of the Application.

• [28] I have no doubt the ongoing matter involving his children would be stressful for the Applicant. However, the Applicant's contention that his miscalculation of the 21 day period was a consequence of his medical conditions is based on his own self-assessment rather than medical evidence demonstrating incapacity such as to prevent the lodging of the Application.

• [29] In the absence of medical evidence supporting incapacity such to prevent the lodging of the Application, I do not accept medical incapacity to be an acceptable or reasonable explanation for the delay.

• [30] The Applicant's explanation of financial difficulties does not go any higher than requesting his father to pay the Application fee on the day he made the Application. The fee was paid at the time of making the Application. The Applicant accepted that his father would have assisted him sooner if he had made the request sooner. I do not accept this constitutes an acceptable or reasonable explanation for the delay.

• [31] For the reasons set out above, I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

s.366(2)(b) - Action taken to dispute the dismissal

• [32] Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[12]

• [33] However, a distinction is to be made between the case of a person who has put the employer on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[13]

• [34] It is clear that the Respondent was on notice through email correspondence sent by the Applicant that he would be seeking reinstatement and compensation.[14] This circumstance weighs in favour of a conclusion that there are exceptional circumstances.

• [35] Neither party submitted that the Respondent would be prejudiced, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.

• [36] However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.

• [37] The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are set out in the filed materials.

• [38] It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.

s.366(2)(e) - Fairness as between the person and other persons in a similar position

• [39] 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.

• [40] The Respondent cited the decision in Charis v Canberra Health Services[15], in which the Commission refused to grant an extension of time where the delay was two days, to support a submission that this factor should weigh against a conclusion that there are exceptional circumstances. I am not persuaded that Charis v Canberra Health Services is a comparable case for the purposes of this factor.

• [41] However, it is clear on the authorities cited in Blanco that if a medical condition is relied on, there should be supporting evidence demonstrating that the medical condition had a material impact upon the person's capacity to file an application within the statutory time limit.

• [42] There have been numerous decisions where the Commission has refused an extension of time in circumstances where the person has failed to provide medical evidence demonstrating that a medical condition had a material impact upon the person's capacity to file an application within the statutory time limit. Adopting that position as to fairness between the Applicant and other persons relying on medical incapacity, this factor does not weigh in favour of a conclusion that there are exceptional circumstances.

• [43] The test of 'exceptional circumstances' establishes a 'high hurdle'. Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances.

• [44] 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.366(2).

• [45] Accordingly, the Application must be dismissed. An order to that effect will be issued with this decision.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

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

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14]; Sandra Mueller v Coles supermarkets Australia Pty Ltd [2022] FWC 1852 at [13]; Ciaran Ryan v Finney Pty Limited T/A Cutprice Car Rentals [2020] FWC 1273 at [25]- [31]; Michael Harvey v Compass-Group (Australia) Pty Ltd [2021] FWC 1375 at [57].

[8] [2021] FWC 4694 at [44]- [51].

[12] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[13] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [19].

[15] [2023] FWC 1222.

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