• [14] On 15 July 2023, Ms Walker sent an email from her email account, purportedly from Mr Briggs, however the language used is that of Ms Walker (as known by me in Ms Walker's own application before the Commission). The following correspondence was sent by my chambers to the parties on 17 July 2023:

The Commissioner acknowledges receipt of the Applicant's email below, sent by Ms Walker. The Commissioner will address the Applicant's response at tomorrow's non-compliance hearing.

The Applicant is expected to give oral evidence tomorrow. The Commissioner is concerned that much of the material and correspondence in this matter involving Mr Briggs has been sent by Ms Walker.

The Respondent is copied into this email for service."

• [15] The non-compliance hearing was listed for 11:30am on 18 July 2023. At 10:31am, Ms Walker sent the following email:

"Due to unforeseen circumstances with our new employer both declan and I will be unavailable today at 11.30am.

We were told just like workocn , take a day off no more work mate. It's genuinely what 'this industry' is and I can't risk this job too.

I am unavailable until 5pm daily now also so unsure if we can please please get Thursday 5pm?"

• [16] Shortly thereafter, the following email was sent from my chambers to the parties:

The Commissioner acknowledges receipt of Ms Walker's email below, sent on behalf of Mr Briggs, advising he and Ms Walker will be unavailable to attend today's non-compliance hearing.

Please be advised that this is Mr Briggs' application, and it is Mr Briggs who needs to give evidence at the hearing.

If Mr Briggs is available at 5:00pm (AEST) on Thursday, 20 July 2023, the Commission will adjourn the non-compliance hearing until then.

If Mr Briggs is not available, the Commissioner is likely to dismiss the application."

• [17] On 20 July 2023, I convened a non-compliance hearing by telephone. Mr Briggs attended, supported by Ms Walker. Mr Leon Coleman, Director, appeared for the Respondent.

• [18] Mr Briggs stated that following the dismissal of his unfair dismissal application, his mother, Ms Walker had a mental breakdown and went onto a mental health plan. Mr Briggs also attempted suicide. I decided to afford Mr Briggs a further opportunity to file material in support of his claim. I directed Mr Briggs to file a witness statement by no later than 24 July 2023.

• [19] On 24 July 2023, Mr Briggs filed a witness statement to the following effect:

• Ms Walker was admitted to hospital on 6 April 2023 under a psychiatric evaluation by QPS;

• Mr Briggs was affected by his mother's mental health predicament;

• Mr Briggs began taking antidepressant medication on or around 26 - 30 March 2023 after attempting suicide;

• At the end of March 2023, Mr Briggs was placed on a mental health care plan and has taken three different medications, and been put on a waiting list for treatment to commence;

• Mr Briggs did not know about any emails from the Commission between March 2023 and April 2023 as the home electricity and internet was not available for three weeks in April 2023.

• [20] It should be noted that the Commission would not have had any need to send Mr Briggs any email in that period of time on account of his unfair dismissal claim having been dismissed on 2 March 2023.

• [21] On the same day Mr Briggs filed his material, email correspondence was sent from my chambers requiring Mr Briggs to file supporting documents with respect to the medical treatment he says he had in March and April 2023. He failed to do so, despite my further request of him on 28 July 2023.

• [22] In material filed by the Respondent on 31 July 2023, it was pointed out that at around the same time Mr Briggs claims he was too unwell to bring this particular application, he made a workers' compensation claim on 23 March 2023.

• [23] It is noted within material filed by Mr Briggs earlier in this application that he received a workers' compensation medical certificate on 31 May 2023, certifying him unfit for a period of two months. The certificate notes that he was first seen at the practice on 21 March 2023.

• [24] On 28 July 2023, I issued amended directions, listing the matter for hearing, in-person on 23 August 2023, as had been determined during the non-compliance telephone hearing on 20 July 2023.

• [25] On 15 August 2023, Ms Ashley Carroll, HR Advisor of the Respondent provided evidence of her need to attend a funeral on 23 August 2023. On 18 August 2023, I emailed the parties, inquiring if a hearing date of 28 August 2023 suited the parties.

• [26] On 19 August 2023, Ms Walker emailed to say she would adjust her work schedule to facilitate Ms Carroll's request for an adjournment. Mr Briggs emailed to say, "we will let work know 28th August thankyou".

• [27] On 23 August 2023, correspondence was sent from my chambers reminding Mr Briggs that any reply material he intended to file had to be filed by 21 August 2023. He was granted an extension up until 24 August 2023 to file reply material.

• [28] On 24 August 2023 at 3:26pm, Mr Briggs sent the following email:

"I'm so confused I read a huge email that told me all the bad I've done and never get things right so case over now I see this email cam someone please tell me what the heck is happening"

• [29] On 24 August 2023 at 3:37pm, the following email was sent to Mr Briggs, copying in the parties and Ms Walker:

The matter remains listed for an in-person hearing at 10:00am (AEST) on Monday, 28 August 2023.

You are expected to attend the hearing on this date which will be held at Level 14 of 66 Eagle Street, Brisbane QLD 4000.

Should you fail to attend the hearing on Monday, 28 August 2023, the Commissioner will commence the hearing without you. The Commissioner is likely to determine the application in your absence.

It is therefore important that you attend the hearing."

• [30] On 25 August 2023, a digital court book, consolidating all of the parties' material was emailed to the parties.

• [31] Mr Briggs failed to attend the hearing on 28 August 2023. Numerous phone calls were made to Mr Briggs' and Ms Walker's telephones without success. The following text message was sent to Mr Briggs at 10:27am on 28 August 2023:

"The Commission has attempted to contact you regarding the hearing of your matter listed today at 10:00am. Please call [redacted] urgently and ask for the Associate.

• [32] At approximately 10:45am, I instructed my Associate to inform the Respondent representatives who had attended for the hearing that I had decided to vacate the hearing.

• [33] At 11:59am on 28 August 2023, the following email was sent to the parties and to Ms Walker:

Please be advised that the above matter was listed for hearing at 10:00am (AEST) today at Brisbane. Mr Briggs and Ms Walker were notified of this listing on 17 August 2023 and 23 August 2023. Mr Briggs acknowledged and advised he will let his new employers know.

A notice of listing was also sent on 24 August 2023 providing the details of the hearing.

The Commissioner notes that at 10:00am today, neither Mr Briggs nor Ms Walker were in attendance. Several attempts were made to contact Mr Briggs and Ms Walker by telephone and text message to confirm whether Mr Briggs would be attending the hearing. However, no phone calls were made to the Associate's phone and the hearing was thereby vacated at 10:45am. There will not be any further hearing in relation to this matter.

As a result of the above, the Commissioner now reserves her decision for the matter of C2023/2630. Accordingly, the parties are requested not to engage in further submissions and filing of evidence.

In respect to Ms Walker's application, the Commissioner had made it clear that if Ms Walker did not attend the hearing in Mr Briggs' matter, the Commissioner will reserve her decision in Ms Walker's matter (following receipt of the telephone records from the Respondent). The Commissioner does not wish to hear further from the parties except to receive the telephone records from the Respondent."

• [34] At 12:14pm on 28 August 2023, Ms Walker sent the following email:

"We were emailed that we have taken too long and didn't reply or answer correctly so I'm sorry I didn't know I still had a chance. I'll reply after work"

• [35] At 12:29pm on 28 August 2023, the following email was sent to the parties in this matter, and to Ms Walker:

The Commissioner acknowledges receipt of your email below and is unable to understand how you came to the conclusion that the hearing was vacated.

You were notified on multiple occasions that the Commissioner will grant you the opportunity to provide additional evidence in respect to your application at the conclusion of the hearing for Mr Briggs' application which was listed today. A notice of listing was sent to you on Thursday, 24 August 2023 providing the details of the hearing, including details of when and where the hearing will occur.

The Commissioner further notes that Mr Briggs contacted chambers on 24 August 2023 after receiving the Notice of Listing expressing the same confusion as you. Chambers wrote back shortly thereafter advising that the hearing is proceeding as scheduled, and the Applicant was expected to attend the hearing. You were copied into this correspondence.

You were also sent correspondence on 25 August 2023 with a copy of the Digital Hearing Book for Mr Briggs' application. This email contained references of a hearing to take place on Monday.

In light of the above, the Commissioner considers you have been provided multiple opportunities to provide evidence. Accordingly, the Commissioner will not accept any further evidence from the Applicants in both matters."

Material relevant to whether there has been a dismissal

• [36] It is noted that the following material was filed by the parties as to whether there has been a dismissal in respect of Mr Briggs' employment on 31 October 2022, as claimed by him.

You've been offered a job on Monday at Broad Ferny Grove

I've just sent the link to begin the sign up process. If you have any questions regarding the application forms feel to contact me any time.

Once completed please let me know and I will call you back to discuss the job on Monday

• [37] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd[1] where the Full Bench said:

"[10] It is convenient to deal first with the meaning of the expression 'exceptional circumstances' in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression "exceptional circumstances" in s.394(3) and held:

'[5] The word "exceptional" is relevantly defined in The Macquarie Dictionary as "forming an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.'

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression "exceptional circumstances" was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

'23. I am of opinion that the expression 'exceptional circumstances' requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:

"Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances."

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:

"We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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' in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.'

[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." [Endnotes not reproduced]

• [38] For exceptional circumstances to arise as contemplated by s.366(2) of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

• [39] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[2]

• [40] The test of "exceptional circumstances" establishes a "high hurdle" for an application seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[3] A decision whether to extend time under s.366(2) involves the exercise of a discretion.[4]

• [41] I now consider these matters in the context of the application, noting how difficult the matter has been on account of Mr Briggs' failure to file material as directed, and his failure to attend the hearing on 28 August 2023.

• [42] The reason for the delay in lodging an application is a factor that must be considered. The Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[5] The absence of an 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 an applicant's favour, though it is ultimately a question of degree and insight.[6]

• [43] A reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[7] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[8]

• [44] I have had regard to the fact that Mr Briggs promptly filed an unfair dismissal claim in 2022. That application was appropriately dismissed by Commissioner Simpson on 2 March 2023 in an ex tempore decision while Mr Briggs was on the telephone, supported by his mother. Accordingly, I am prepared to accept that for the period up until 2 March 2023, there were exceptional circumstances as to why he would not bring this particular application as he already had an application on foot.

• [45] At the time Commissioner Simpson dismissed his unfair dismissal application, Mr Briggs stated that he wanted to move on with his life and would not bring any further applications. Yet, he did, and he took more than two months to do so. In the month of March 2023, Mr Briggs made a workers' compensation claim.

• [46] Mr Briggs has stated that during March and April 2023 he has been severely depressed on account of his mother's mental incapacity at that time. I have had regard to the attempts he says he has taken on his life.

• [47] Mr Briggs has failed to provide any medical evidence of the seriousness of his stated medical condition, other than a letter from his general practitioner dated 31 May 2023 to WorkCover which does not assist with any diagnoses or relevant period of incapacity. There is no medical evidence to support Mr Briggs' claim that he was unable to bring this application before the Commission between the period of 2 March 2023 and 9 May 2023. It is also noted that Ms Walker has made her own general protections application to the Commission on 2 May 2023, having had her own unfair dismissal application dismissed by Commissioner Simpson on 28 April 2023.

• [48] It is noted that while Ms Walker might have been incapacitated for a period of time from March 2023, which has had an impact on Mr Briggs, Ms Walker read Commissioner Simpson's decision on or after 28 April 2023, and promptly brought a general protections claim on 2 May 2023. Mr Briggs waited until 9 May 2023 to bring his own application, yet has not provided any suitable explanation for the delay.

• [49] On account of the fact that Mr Briggs was able to bring a workers' compensation claim in the relevant period, but not bring this application, and his failure to provide appropriate medical evidence supporting his stated reasons for the delay, the reasons for the delay provided are not, in my view, reasons that are supportive of an extension of time being granted.

Any action taken by the person to dispute the dismissal - s.366(2)(b)

• [50] Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant's employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[9]

• [51] Mr Briggs made a claim for unfair dismissal and was jurisdictionally prevented from pursuing his claim on account of not meeting the minimum employment period. I accept that bringing the unfair dismissal application demonstrates that he took action to dispute the dismissal.

• [52] His statement during the hearing in which Commissioner Simpson dismissed his application was genuinely given, yet two months later Mr Briggs sought again to dispute the dismissal.

• [53] I consider that Mr Briggs' unfair dismissal application made in November 2022 supports an extension of time being granted. I consider that Mr Briggs' statement in March 2023 that he did not want to pursue any claims against the Respondent to dispute the dismissal following his unfair dismissal application being dismissed counts against an extension of time being granted.

Prejudice to the employer (including prejudice caused by the delay) - s.366(2)(c)

• [54] On account of the purported dismissal occurring on 31 October 2023, and Mr Briggs waiting until 9 May 2023 to bring his application, I consider there is some prejudice to the Respondent if the time limit is extended. I come to this conclusion even having regard to the period up until 2 March 2023 which may be excused. This does not support an extension of time being granted.

• [55] It is well established that, "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)."[10]

• [56] Mr Briggs has failed to provide any evidence as to the merits of his application. He is faced squarely with an email from the Respondent on the day that he was dismissed at [36], offering him further work. He has chosen not to give evidence relevant to that email, noting the usual practice of the Respondent in offering work to employees.

• [57] I consider that the merits of the claim is a matter that does not support an extension of time being granted.

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

• [58] The criterion of "fairness as between the person and other persons in a similar position", was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm,[11] where it was said:

"...cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.

• [59] I am not satisfied that the criterion of fairness between Mr Briggs and other persons in a similar position weigh strongly in favour of either party, as such, I consider it a neutral consideration.

• [60] Having taken into account each of the factors referred to in s.366(2)(a) to (e) of the Act, I am not persuaded that there are exceptional circumstances warranting consideration of whether I should exercise my discretion to allow a further period within which an application may be lodged by Mr Briggs.

• [61] Accordingly, the application for an extension of time is refused and the substantive application is dismissed.

• [62] An order giving effect to this decision will be issued separately [PR765847].

[1] [2011] FWAFB 975.

[2] Smith v Canning Division of General Practice [2009] AIRC 959.

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

[4] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

[5] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36].

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [35]- [45].

[7] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288.

[8] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] -[33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149.

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

[10] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [36].

[11] [2015] FWC 8885 at [29].

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