[30] The applicant rejected Mr McElroy's submission that she had consistently made detailed articulate submissions about being ill-treated and in defiance of warnings about her performance. She claimed these were warnings in retaliation to her complaints against Mr Bas. In any event, there were large gaps between the warnings which were, in any event, unfair, particularly in respect to her being required to meet unachievable work plans.

[31] The applicant said that her detailed and lengthy submissions had evolved over time (ten months) and her experiences were collated for the purposes of making statements in respect to her workers' compensation claim. She rejected Mr McElroy's 'insinuation' that her condition could not have impaired by her ability to prepare statements. The applicant reiterated that while she was unfamiliar with the Act, she became aware of the time limit for unlawful termination applications, only a few days after the termination of her employment. She did not have time to file her application, given her condition, and her requests to Council for her case to be considered like others who had been treated in similar circumstances.

[32] The applicant claimed that the religious discrimination she experienced from Mr Bas was not overt. He used discrete and unannounced tactics to discriminate against her by issuing her with warnings, not recognising her work, burdening her with extra work and humiliating her in front of others, over an extended period of time. This was the link to her termination of employment.

The applicant seeks the Commission's support in acknowledging:

(a) 'Receiving a response to my 2012 grievance from the person I am complaining about, being Mr Bas, is unacceptable;

(b) Receiving work plans specifying certain tasks to be achieved within specific periods either late or after such periods lapse, as detailed in paragraph 22(a) of witness statement, is NOT considered proper or fair performance management and such work plans are seen as set to fail plans.

(c) Conducts (sic) by Mr Bas, that created stats which did not reflect my performance had strong foundation of bullying and harassment (i.e. assessment report for (Development Application cited) was signed approximately 7 weeks after I had completed the report by Mr Bas.

(d) The unfair warnings given to me by Mr Bas as a form of bullying, discrimination and harassment, which Council has failed to identify, has led to my unfair dismissal in an unlawful termination manner after 14 years of loyal service to Council.'

[33] In Tamu v Australia for UNHCR [2019] FWCFB 2384, a recent Full Bench of the Commission summarised the relevant jurisdictional principles at [16]-[20] as follows:

'[16] Section 366(1) provides that a general protections application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2). The 21 day period prescribed in section 366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day. See Acts Interpretation Act 1901 (Cth) s.36 as in force on 25 June 2009 see s.40A of the Act; Kristia Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877; Hemi v BMD Constructions Pty Ltd [2013] FWC 3593

[17] Section 366(2) of the Act sets out the circumstances in which the Commission may grant an extension of time as follows:

"(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

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

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

[18] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension. See Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]. A decision whether to extend time under section 366(2) involves the exercise of a discretion: Halls v KR & MA McCardle and Ors [2014] FCCA 316.

[19] The meaning of "exceptional circumstances" in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) [2011] FWAFB 975 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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance."

[20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional: Misconi v Negri Contractors (Vic) Pty Ltd [2019] FWCFB 654 at [13]; see also Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]- [26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).'

[34] It must also be stressed that a finding of 'exceptional circumstances' is a classic exercise of discretion, as is apparent from the inclusion of the word 'may' in s 774(2). The discretion is only enlivened if the Commission is satisfied there are 'exceptional circumstances'. That test has been said to be a 'high hurdle' for an applicant to overcome when seeking an extension of time; see: Qantas Airways Limited v McRae [2017] FWCFB 4033. However, in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394, Lawler VP stated that the Commission would be cautious in adopting an overly stringent interpretation of what constitutes 'exceptional circumstances' in allowing an extension of time for lodging applications, in that it would be sufficient for an applicant to meet the relatively high hurdle of 'exceptional circumstances' where one, or more, or in combination, of the criteria in s 774(2) establishes circumstances which are 'unusual, out of the ordinary, special or uncommon.'

[35] Although the above cited cases were decided under the General Protections and Unfair Dismissal provisions of the Act, it is a principle of statutory construction that, where a word or phrase appears elsewhere in the same Act, its meaning is the same, unless there is an express intention to the contrary.

[36] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] FWAFB 7251; (2010) 197 IR 403 which had concluded that in order for 'exceptional circumstances' to be established, an applicant must provide reasons for the whole of the period of delay in filing. Until recently, this approach had been followed in numerous single member decisions. However, in Stogiannidis the Full Bench said at [38]-[40]:

'[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time 'needs' to provide a credible explanation for the entire period', it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.'

See also Cannon v Quad Services [2019] FWCFB 2097.

[37] I turn now to each of the matters the Commission is required to take into account to be satisfied whether the applicant has established 'exceptional circumstances' for the late lodgement of this application.

[38] The applicant had been absent from work since 25 June 2018 up to the termination of her employment, and claims that her medical condition meant she was unfit for work. There is no dispute that the applicant is, and remains, unfit for work, with no likelihood of her returning to work in the foreseeable future. She had been out of the workplace for nine months. The applicant claimed the primary reason for the delay in filing her application was due to her psychological condition.

[39] The only medical evidence filed by the applicant relevant to the period after 26 March 2019 is a letter dated 8 April 2019, from Dr Emad Girgis, Clinical Psychologist. Dr Girgis notes the applicant is undertaking Cognitive Behavioural Therapy ('CBT') with signs of improvement. There is no mention of any medication being prescribed by Dr Girgis or any other medical practitioner. Dr Girgis recommended she not engage in seeking employment and/or training for six months, and she attend the CBT Clinic once a fortnight. Dr Girgis was aware that the applicant had been dismissed for her condition, but pointedly, makes no finding or prefer on opinion that she would have been unable to file a Form F9.

[40] In my view, rather than supporting the applicant's case for an extension of time, Dr Girgis' letter corroborates Council's decision that she was not fit to return to work in the foreseeable future and that the applicant's case alleging an unlawful termination on account of temporary illness, has little prospect of success.

[41] There is no doubt that a person's mental or psychological condition may be a factor going to their ability to file an application with the Commission within time. In some cases this may be a pre-existing condition which is exacerbated by the stress and anxiety of one losing their employment. In Scott v Steritech Pty Ltd t/a Steritech [2019] FWC 2970 ('Steritech'), I observed at [93] as follows:

'As to Mr Scott's medical/psychological condition, it is not 'out of the ordinary' or 'unusual' for a dismissal employee to experience some degree of anxiety, stress, withdrawal from social and normal human activities and helplessness. Sometimes this manifests itself in depression of such severity that medication, or regrettably even hospitalisation, may be necessary.'

[42] The applicant in Steritech did not have a pre-existing medical condition. I accepted the loss of his 12 years of employment due to redundancy, resulted in a significant impact on his psychological wellbeing, affecting his cognitive function and resulting in a lengthy hospitalisation. There were no performance issues over the applicant's 12 years of service. The facts and circumstances of this case are entirely different. The applicant claims she has been the subject of bullying, discrimination and harassment for over nine years. There is no evidence to suggest she was hospitalised during this period, nor is there any evidence of her being prescribed medication for her condition. She continued to work and challenge her warnings of poor performance, and lodge grievances against the warnings - none of which were substantiated by the investigations.

[43] During the recent history, the applicant has been gathering and compiling documents, preparing lengthy, erudite submissions, and contacting the Council and the Fair Work Ombudsman. She filed a workers' compensation claim, and then unsuccessfully appealed the rejection of her claim. Given this level of activity, and the lack of any medical evidence that the applicant was incapable of filing a simple F9 form, I cannot accept that the applicant's medical condition, regrettable as it may be, is an acceptable reason for the delay in filing her application. In addition, I note the applicant's answer to this activity was that she had been collating documents relevant to her case for 10 months and not in the 21 days after her dismissal. This is a curious, counterintuitive submission. If her detailed submissions were already prepared over a long period, how much easier would it have been to file a simple Form F9 and attach her gathered material to it?

[44] It must be stressed that 'unfitness to work' does not necessarily equate to cognitive incapacity to function relatively normally or undertake usual home, business, domestic or social activities. Further, I note that the applicant's evidence that she first became aware of a time limit for the application about a week after her dismissal. It is incomprehensible that she took no steps to lodge an application, within time, knowing of said time limit. She provided no explanation why she then waited a further two weeks before filing her application.

[45] It is also of some concern that the applicant claims years of bullying and unanswered grievances, but took no steps to utilise the Anti-Bullying jurisdiction of this Commission that has been in place since 1 January 2014. It seems to me that the applicant was more determined to seek an unconditional apology and acknowledgement that her historic claims of bullying were entirely justified, rather than applying herself to the numerous concerns of different managers, as to her poor performance in her role. Arguing about the time between the warnings is not the point.

[46] It is also necessary for me to record that in an earlier conciliation, and during the hearing, the applicant presented her case calmly, unemotionally and politely. She did not appear to be anxious, stressed or confused. Her entire focus in both proceedings was to set out with meticulous attention to detail, dates and persons involved incidents, which are alleged to have happened up to eight years prior. She quoted various local government laws and regulations. It is difficult to reconcile her claimed symptoms of memory and concentration loss with this capacity of recall. While I accept the applicant was unfit for work, and although I am not a doctor, I have great difficulty accepting the applicant has - or had at the relevant time - an impairment of such magnitude such as to prevent her from engaging in normal human activities and social interaction.

[47] In summary, I am not persuaded that the applicant's primary reason of a mental condition is a satisfactory explanation for the delay in filing her application. That finding tells against the Commission granting an extension of time.

Any action taken by the employee to dispute the termination (s 774(2)(b))

[48] The applicant challenged the three letters sent to her from the Council before her termination on 26 March 2019, in which she was on notice that the Council was considering terminating her employment. She does not claim that her termination exacerbated her medical condition. The applicant took no action to dispute her dismissal until filing this application on 2 May 2019, notwithstanding she was aware of a time limit about a week after 26 March 2019. This factor tells against an extension of time being granted.

Prejudice to the employer (including prejudice caused by the delay) (s 774(2)(c))

[49] The respondent conceded it would not experience any prejudice by the delay in dealing with, and responding to the applicant's unlawful termination application. Of course, the mere absence of prejudice to the employer is an insufficient basis to grant and extension of time; see: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IRC 298. This is a neutral factor in this case.

[50] I take the opportunity to set out below the observations of the Full Bench in Kyvelos v Champion Socks Pty Ltd Print T2421 (10 November 2000) per Guidice J, Acton SDP and Gay C, as to the sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an extension of time application:

'[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) 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 [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). 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 pursuant to s.170CE(8). 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. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.'

[51] In Kornicki v Telstra - Network Technology Group Print P3168, a Full Bench of the Australian Industrial Relations Commission (as the Commission was then styled) said:

'If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.'(my emphasis)

[52] As mentioned earlier, the bulk of the applicant's material relates to her claims of bullying, discrimination and harassment for over nine years. I highlighted those matters at [15] above. It seems to me that the applicant has conflated the reasons for her alleged medical condition, with the stated reason for the termination of her employment in that she could not comply with the inherent requirements for her role for over nine months and with no prospects of her returning to work in the foreseeable future. In other words, she confuses 'cause' with 'consequences'. Section 773 of the Act is concerned with unlawful reasons for termination, one of which is a temporary absence for illness. The applicant's absence was neither temporary, nor would it have been unlawful, if the Workers Compensation Act 1987 (NSW) had applied. I also agree with Mr McElroy that given the meaning of temporary absence, as defined in the Regulations, it is unlikely to have applied to the applicant's circumstances. For these reasons, while I am not entirely convinced that applicant's prospects of success are hopeless, it must be said the prospects of success are remote. This factor tells against the grant of an extension of time.

[53] As to the applicant's claim of unlawful termination based on religious discrimination, the best the applicant could point to, concerned an undated, alleged conversation between her and Mr Bas, about a religious cross on the applicant's wrist, and his alleged inquiry as to whether her young sons had such crosses on their wrists. The applicant claimed Mr Bas' attitude had changed towards her after this incident and before her 2008/9 performance review. This must mean this incident occurred in or around 2008. To suggest that her termination of employment over nine years later, as a result of this innocuous inquiry (assuming it did, in fact, occur) and with not a skerrick of evidence, was based on her religion, is patently absurd and must be rejected.

Fairness between other persons in a like position (s 774(2)(e))

[54] In Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine [2016] FWCFB 6963, the Full Bench said at [41]:

'Finally, we turn to consider fairness as between the Appellant and other persons in a similar position. Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.'

[55] The applicant claims she was aware of two seriously ill Council employees who had been absent from work for extended periods, and two who had been on maternity leave for extended periods, without having their employment terminated. It must firstly be said that the applicant provided no evidence of the facts and circumstances relating to the seriously ill employees, which may demonstrate their cases to be completely unlike hers; and secondly, the taking of a maternity leave is a statutory right for employees and could not possibly be relevant to the applicant's circumstances. Moreover, it could not be seriously posited that maternity leave is a temporary absence for illness.

[56] Accordingly, the applicant has not established any differential treatment between her and other employees in a like position. This factor tells against the grant of an extension of time.

[57] Taking into account all of the matters in s 774(2) of the Act and after balancing all of the largely uncontested facts and circumstances in this case, and according them appropriate weight, I am not satisfied that the applicant has established 'exceptional circumstances' which are 'unusual', 'out of the ordinary', 'special' or 'uncommon', such as to warrant the Commission extending the time for her to lodge her unlawful termination application. Accordingly, the application must be dismissed. I so order.

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