Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2023] FWC 759 of Deputy President Lake at Brisbane on 30 March 2023 in matter number U2023/412.

[1] Ms Emma Croker (Appellant) has applied for permission to appeal and appealed a Decision[1] of Deputy President Lake issued on 30 March 2023 (Decision) in which he refused to grant the Appellant a further period in which to file an application for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (FW Act).

[2] The appeal was listed for hearing before the Full Bench on 8 June 2023 in relation to both permission to appeal and the merits of the appeal. The Respondent sought, and was granted, permission to be represented by a paid agent, on the basis that we were satisfied the appeal raised issued of complexity and that representation would enable the matter to be dealt with more efficiently. At the hearing, the Appellant represented herself and the Respondent was represented by Mr J Lamb of John Lamb Workplace Relations Consulting.

[3] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 394(3). Section 394(3) provides:

(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.

[4] The Appellant was employed by Erndit Logistics Pty Ltd (the Respondent), a contractor to Australia Post. In the period from 9 September 2021 to 1 November 2022, the Appellant worked for two previous contractors and undertook mail deliveries. The Respondent took over the contract on 1 November 2022 and engaged the Appellant as a casual employee from that date. On 2 November 2022, the Appellant was involved in a motor vehicle accident while driving the Respondent's vehicle to undertake deliveries. The Appellant sustained an injury to her wrist and arm. The vehicle sustained some $20,000 of damage and was written off by the Respondent's insurance company. The Appellant was dismissed on the basis that the Respondent concluded that she was driving on the wrong side of the road when the accident occurred.

[5] The Appellant lodged a Form F2 Application for an unfair dismissal remedy on 16 January 2023 stating that her dismissal took effect on 14 November 2022. The application was amended on 20 and 24 January 2023. Initially the Appellant stated that she had not been notified of her dismissal and that she assumed that she her dismissal took effect on 14 November 2022 after a telephone call on that date with the owner of the Respondent, Mr Kory Jennings. The Appellant also stated that she had telephoned her employer after not hearing from him for 12 days after the accident. In an amendment forwarded to the Commission by email on 20 January 2023, the Appellant stated that she was notified of her dismissal on 14 November 2022 and it took effect on that date. In the third version of the application forwarded to the Commission on 24 January 2023, the Appellant again stated that she was notified of her dismissal on 14 November 2022 but that she had not been formally notified and assumed that her dismissal took effect on 14 November after calling her employer on that date. We accept for the purposes of the appeal that the Appellant was notified of her dismissal on 14 November 2022 and that it took effect on that date.

[6] The 21-day period for making the application expired at midnight on 7 December 2022. The application was therefore made 42 days outside the time required by s. 394(2) of the FW Act.

[7] The Respondent, via its representative Mr John Lamb, filed a Form F3 Response on 7 February 2023, objecting to the application on the ground it was made outside the 21-day period allowed by s. 394(2) of the FW Act.

[8] The Deputy President found that the Appellant was summarily dismissed on 14 November 2022 and lodged her application unfair dismissal remedy application on 16 January 2023. As the lodgement was 42 days outside the statutory time limit prescribed by s. 394(2) of the FW Act, the question before the Deputy President was whether an extension of time pursuant to s. 394(3) should be granted.

[9] After setting out the relevant statutory provision and case law in relation to the approach to deciding whether there are exceptional circumstances justifying the grant of a further period, the Deputy President turned to consider the matters in s. 394(3). In relation to the reason for the delay, the Deputy President found that the Appellant did not have a sufficient reason for delay and that this weighed against an extension of time. The Deputy President noted the Appellant said that she had experienced a psychological breakdown after her dismissal, had issues with depression and anxiety, was isolated from any support network at the time of the dismissal and due to it being near the Christmas period, there was limited availability to see a general practitioner or psychologist.

[10] The Deputy President also noted that the Appellant did not have a vehicle, lived in a rural location near Gympie and received no contact or communication from the Respondent after her date of dismissal. Further the Deputy President noted that the Appellant had not sought assistance from her partner as he also worked for the Respondent, and she did not want him to lose his job for assisting her. The Deputy President also considered oral evidence given by the Appellant in the hearing that she had found the Form F2 application on the Commission's website around late November/early December through word of mouth but was only able to lodge the application once she had support from a Disability Support Agency. The Deputy President observed that the Commission's website provides a warning to applicants about the requirement to file an unfair dismissal application within 21 days after the date of the dismissal and the importance of filing within time. The website also informs applicants that an application can be filed even if the applicant does not have all relevant information and more details and supporting documents can be sent to the Commission after the application is filed.

[11] The Deputy President stated that he was not satisfied that the Appellant had provided sufficient reason to meet the high threshold of establishing an exceptional circumstance considering that she was aware of the unfair dismissal process during late November/early December and that if she required assistance later on, the Commission's website made clear that additional information could be provided after an application was filed.

[12] In relation to whether the Appellant first became aware of the dismissal after it had taken effect, the Deputy President was satisfied the Appellant was aware of her dismissal date and the unfair dismissal process within the 21-day timeframe. The Deputy President noted that the Appellant was told by the Respondent over the phone on 15 November 2022 that her dismissal date was 14 November 2022 and that she was summarily dismissed following investigations into a safety breach on 2 November 2022.

[13] The Appellant took steps to dispute the termination of employment by asking for the reasons for her dismissal during a phone call on 14 November 2022 and in a follow up meeting with the Respondent on 15 November 2022. In relation to the Respondent's investigation into the safety breach, the Deputy President recorded that the Appellant had not been included in any meetings or conversations. As such, the Deputy President was satisfied this consideration weighed in favour for an extension of time.

[14] In relation to whether granting the extension of time would result in any prejudice to the employer (s. 394(3)(d)) and the merits of the application (s. 394(3)(e)), the Deputy President considered both factors to be neutral. The Deputy President recorded that the Respondent considered an extension of time would prejudice it as the Commission rarely grants an extension of time past the statutory time frame. Further, the Deputy President noted that it was difficult to consider the merits of the Appellant's application without first hearing the Appellant on the merits.

[15] In considering the fairness as between the Appellant and other persons in a like position (s. 394(3)(f)), the Deputy President was sympathetic to the circumstances which the Appellant had faced while making the unfair dismissal application but found that previous decisions of the Commission weighed against an extension of time.[2]

[16] Taking into account the circumstances under s. 394(3) of the Act, the Deputy President concluded that exceptional circumstances did not exist in the matter and accordingly, ordered the application to be dismissed.

[17] An appeal under s. 604 of the FW Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[3] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[18] This appeal is one to which s. 400 of the FW Act applies. Section 400 provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[19] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s. 400 as "a stringent one". The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters."[5]

[20] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[6] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[7]

[21] In relation to extensions of time to lodge applications under s. 394(3) of the FW Act, the test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension, and a decision as to whether to extend time under s. 394(3) involves the exercise of a broad discretion.[8] It will therefore be necessary, in an application for permission to appeal against a decision made under s. 394(3), to demonstrate that there is an arguable case that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King[9] - that is, that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust. Additionally, where an error of fact is alleged, s. 400(2) requires that it must be a significant error of fact. The overriding public interest requirement of s. 400(1) remains.

[22] For the reasons that follow, we have come to the conclusion that the Deputy President erred by failing to take into account a relevant consideration, in relation to evidence of the Appellant's mental health issues provided by her treating medical practitioner and a counsellor. That material was directly relevant to the Appellant's capacity to make an application for an unfair dismissal remedy within the time required in s. 394(2), the central issue for determination by the Deputy President. We have also concluded that this is a significant error of fact that infected a number of the matters in s. 394(3) that the Deputy President was required to consider in deciding whether to grant a further period. As a result, the decision manifests an injustice and is disharmonious with other decisions involving extensions of time to lodge applications involving persons suffering mental health issues. Our reasons for this conclusion are set out below.

[23] Accordingly, we are satisfied that it is in the public interest to grant permission to appeal, and we do so.

[24] The grounds of appeal set out in the Appellant's Notice of Appeal canvas a range of matters going to merit which are largely irrelevant to the question of whether a further period of time to make the application should be granted and which it is not necessary to consider. The critical factual issue raised in the appeal grounds is set out in ground 6, which asserts that the medical evidence supporting one of the exceptional circumstances of delay has not been referenced within the decision made nor at the hearing.

[25] It is the Appellant's submission that the Decision is flawed, based on a technicality and does not fully address her claim. In particular, the Appellant asserts that the Deputy President did not reference medical documents submitted by the Appellant that highlight her impaired cognitive mental function. The Appellant submitted in this regard that she provided documentary evidence from her mental health practitioners of her medical condition during the 21-day time period until the present day, but she was not able to access that evidence until late December 2022. The Appellant submitted that this provides justification for the delay in her ability to start the unfair dismissal process. In support of this assertion, the Appellant referred to the witness statement of Mr Aaron Evan, the Appellant's partner and current employee of the Respondent which detailed the effect of the dismissal on her mental health. The Appellant also noted that she has two "Certificates of Capacity".

[26] With respect to the Deputy President's finding that he "was not satisfied that the explanation provided by the Appellant [was] sufficient reason to meet the high threshold of establishing an exceptional circumstance considering the Appellant was aware of the unfair dismissal process during late November/early December",[10] the Appellant submitted that she was cognitively impaired, unable to comprehend the details of the Form F2 application and at the time of finding the form, was unaware there was a timeline. In support of this submission, the Appellant referred to:

• two mental health references submitted with her application;

• the Appellant's verbal submissions at the first instance hearing; and

• the witness statement of Mr Evans, specifically the following extracts from his statement:

"...there was no contact made to her by our employer after the three days, she had been told to have off she began to worry and as a result her mental health began to decline.

I have never seen Emma so depressed; her drive was crushed by the harsh silence of the respondent. Emma went from her usual highly enthusiastic and happy self to a depressed withdrawn shell of a person filled with doubt, asking why?, in tears most days, her trust and enthusiasm missing and struggling with the smallest of tasks.

...I nursed her through December... as she struggled mentally through Christmas unable to get the support she needed with business closures until early January."

[27] The Appellant referred to the case of Ellis v Melton Shire Council (Ellis)[11] in which the Commission found that the applicant's severe impairment to her cognitive capacity in the form of psychological and associated physical consequences arising from the termination of her employment by the respondent was an exceptional circumstance. In the Appellant's view, her doctor's evidence of the psychological condition she suffered after the termination of her employment is akin to that of the applicant in Ellis.

[28] In relation to the Deputy President's finding at paragraph [16] of the Decision that the Appellant was made aware in late November/early December about lodging an unfair dismissal claim, the Appellant contended that being told something and having awareness in relation to the information shared are separate cognitive abilities. While the Appellant was told this, she was unable to "be aware" of that information due to her medically supported, psychological cognitive impairment.

[29] In relation to the Deputy President's finding at paragraph [17] of the Decision that he was "satisfied that the Applicant was aware of her dismissal date and the unfair dismissal process within the timeframe", the Appellant contended that she was not of a capacity within the 21-day period to psychologically be aware or comprehend the process involved in an unfair dismissal claim. Further, in the Appellant's view, the Deputy President was aware of the cumulative circumstances that the Appellant faced as evidenced at paragraphs [10] and [11] of the Decision.

[30] In relation to the consideration under s. 394(3)(f) regarding fairness as between the Appellant and other persons in a similar position, the Appellant contended that the factual circumstances in her case are similar to those of the applicant in Ellis, and the similar exceptional circumstances (being, the psychological impairment) comprehensively diminished the Appellant's capacity to file the application in this matter. The Appellant noted the observation of Commissioner Lewin at [23] of Ellis which states as follows:

"[23] ...consideration in this matter is whether the particular circumstances affecting Ms Ellis were such as might be considered outside the usual course, and the time when the application was filed."

[31] The Respondent disputed the Appellant's submission in the appeal that her medical condition is backed by documentation and contended that there was no supporting evidence that the Appellant was severely cognitively impaired. With respect to the Appellant's assertion that she was unable to provide documentary evidence to support her medical condition during the 21-day time period until late December 2022, the Respondent submitted that the Appellant provided a medical certificate dated 17 February 2023 referring to the Appellant requesting assistance with the lodgement of an unfair dismissal application, and what has transpired over the past few months. It is the Respondent's contention that the certificate:

• does not state when the doctor first saw the Appellant but only that the next review was on 30 December 2022;

• focuses on the Appellant experiencing right arm pain but no overt pathology was found;

• mentions that the Appellant had back pain, and out of caution, Dr Lee suggested that the Appellant be reviewed again on 6 January 2023; and

• states that the Appellant mentioned that she was suffering from stress and depression.

[32] The Respondent submitted that the medical certificate does not support the Appellant's statement that she has two medical certificates to support the fact she was suffering from some form of psychological injury that prevented her from completing her application form for 42 days following her dismissal. The Respondent contended that it is not unreasonable to assume that had the Appellant been suffering some psychological injury, the doctor would have identified it early, and referred the Appellant to psychological help. The Respondent also noted that the two medical certificates were not submitted.

[33] In relation to the Appellant's submissions regarding [13] of the Decision, the Respondent submitted that the Appellant's doctor did not hold any concerns for the Appellant's mental health until the Appellant mentioned that she was suffering from stress and depression on a visit relating to her arm on 30 December 2022. Further, the Respondent noted that the Appellant provided a document from the Appellant's health practitioner showing that the Appellant was being treated by the practitioner for a psychological issue since February 2021. In the Respondent's view, the Appellant's witness statement made it clear that she was aware that she could lodge an unfair dismissal application but wanted to seek help in making the application because she was struggling to fill the form and with revisiting her memory. It is the Respondent's contention that this strongly indicates that towards the end of November 2022, the Appellant had commenced completing the required form for an unfair dismissal remedy. The Respondent further contended that the Appellant could have sought assistance from her partner to complete the form F2.

[34] With respect to the Appellant's reliance on Ellis v Melton Shire Council,[12] the Respondent asserted that the Appellant has not in any way provided supporting evidence that her cognitive capacity is severely impaired. According to the Respondent, the only reference relating to psychological injury is where the Appellant mentioned to the doctor that she was stressed and suffering depression, when seeking a letter of support for the extension of time application.

[35] In relation to the Deputy President's findings that the Appellant does not have a vehicle and lives in a rural location near Gympie, the Respondent submitted that the Appellant had access to a motor vehicle and lives about 8 km from Gympie, which is not an isolated area.

[36] We do not accept the Respondent's submission about the medical evidence tendered by the Appellant in the first instance proceedings and the appeal. The Commission file in relation to the first instance proceedings contains a bundle of documents tendered by the Appellant which includes three medical certificates/documents. The documents were included in the Appellant's document list in the first instance hearing and are included in the appeal book filed by the Appellant on 11 May 2023 in accordance with directions for the hearing of the appeal. These documents do indicate that the Appellant had mental health issues at the relevant time including cognitive impairment.

[37] Document "C" is a Clinical Summary issued by the Gympie Hospital Emergency Department indicating that the Appellant was seen on 2 November 2023. The Clinical Summary refers to injuries to the Appellant's right hand described as "strain and sprain of parts of hand". The Appellant also tendered a Medical Certificate marked as "G" from Dr Jeffrey Lee dated 17 February 2023. The certificate states that Dr Lee writes at the request of the Appellant as she has lodged a Fair Work Commission application and has requested his assistance with what has transpired over the past few months. Dr Lee states that the Appellant told him that she was dismissed on 2 November 2022 (the date of the accident) and that he next saw her on 30 December 2022 where the focus of his review was on persisting pain in her right arm. Dr Lee further states that the Appellant also suffered from back pain and that in the next review on 6 January 2023, he performed a CT scan and found no acute pathology. In conclusion, Dr Lee states: "At both of these consults Emma did mention she was suffering with stress and depression. We have a consult booked to create a mental health treatment plan for her to see a therapist." In addition to the Appellant's mental health issues, Dr Lee's certificate in combination with the hospital report, evidences the extent of the injury suffered by the Appellant as a result of the vehicle accident, the symptoms of which the Appellant was still affected by some months after the event. This is a further relevant consideration going to her capacity to make an unfair dismissal application in the required time.

[38] A third document marked "H" in the Appellant's material is a letter from Ms Helen Miguel, a Counsellor at Gympie Women's Health Service, dated 20 February 2023. The letter states that the Appellant has attended the Service for counselling support since February 2021 and during this period it has been identified that she has suffered significant and cumulative trauma. It is also stated that the Appellant's presentation is consistent with an adult ADHD (Adult Attention Deficit/Hyperactivity Disorder) the symptoms of which include restlessness, trouble concentrating and acting on impulse. The letter goes on to state:

"Emma has recently discussed an event which occurred while she was at work and which involved a motor vehicle accident. Emma has explained to me that she has been to the Fair Work Commission to appeal a decision by her employer. Unfortunately it seems that Emma has been advised that her appeal has fallen outside the time frame allowable.

This letter is to provide support to Emma in her endeavours to have her appeal heard. This is because Emma's cognitive processing has been impaired due to her ADHD processing where she has shut down due to overwhelm at the situation she has experienced. It is my assessment that Emma would not intentionally undermine the process of a fair work claim and indeed it would be my impression that Emma's overwhelm has impaired her decision making around this process.

[39] While the Deputy President gives consideration to mental health issues identified by the Appellant there is no reference in the Decision to medical documentation supporting those submissions. At paragraph [10] of the Decision, the Deputy President stated:

"[10] The Applicant raised that she had a psychological breakdown and was isolated from any support network. I note that the Applicant has had issues with depression, anxiety and post-traumatic stress disorder which would have been exacerbated with her dismissal. As the dismissal was near the Christmas period, she was unable to seek any support such as seeing a General Practitioner or a Psychologist who could assist her during the Christmas period as everything was closed."

[40] The Deputy President also noted at paragraph [11] of the Decision that the Appellant stated that she was only able to lodge the application once she had support from a disability support agency.

[41] While the Deputy President has noted that the Appellant "raised" her mental health conditions, the Deputy President did not find that the Appellant was actually suffering from such conditions. The Deputy President's description of the Applicant's mental health issues differs from the information set out in the documents she tendered at the hearing and referred to above. Those documents support the Appellant's evidence that her cognitive ability was affected to the extent that she was unable to make an unfair dismissal application within the required time. There is no indication in the Decision that the Deputy President considered the contents of the documents, their probative value or their relevance to the matters in s. 394(3) that he was required to take into account in deciding whether to grant a further period for the application to be made.

[42] We do not accept the Respondent's submissions that the medical evidence tendered by the Appellant should be disregarded or given little weight because it was obtained to support her application for an extension of time. The certificates cover the relevant period and are provided by practitioners who have treated the Applicant for a reasonable period. We also accept that the timing of the dismissal would have made it difficult for the Appellant to obtain assistance and support for her mental health issues. While Gympie is not a remote area, it is likely that such assistance would not have been available during the Christmas period.

[43] We consider that the Deputy President erred by not taking into account as a relevant consideration the relevant and probative certificates/medical documentation we have identified. This caused the exercise of the discretion to extend time to miscarry. The appeal will therefore be upheld and the Decision quashed.

Redetermination of whether a further period should be granted

[44] Pursuant to s. 607(3)(b) we will redetermine the issue of whether the Appellant should be allowed a further period of time to make her unfair dismissal application. In doing so we will take into account the material that was before the Deputy President, as well as the submissions that were made in the appeal.

[45] In relation to the reason for the delay (s. 394(3)(a)), it is clear that the delay in the Appellant making her unfair dismissal application was caused by the following circumstances. The Appellant was involved in a vehicle accident of sufficient severity to cause her to suffer an injury to her hand and arm which persisted from 2 November 2022 until at least February 2023, and to cause $20,000 of damage to the Respondent's vehicle. Further, the Appellant was reported to have been suffering from mental health issues that affected her cognitive ability. The Appellant's reported mental health issues, for which she had been seeking support since February 2021, were exacerbated by the fact that she was involved in a serious motor vehicle accident as a result of which she was dismissed. Without venturing into merit, the Respondent does not deny the Appellant's assertion that no contact was made with her by her employer for 12 days after the accident and that contact was ultimately initiated by the Appellant. The Appellant contends, and we do not doubt, that this caused her further mental distress.

[46] We endorse the other findings made by the Deputy President in relation to the impact of the Christmas period on the Appellant's ability to obtain medical and psychological assistance, the fact that the Appellant did not have a vehicle and lived in a rural location near Gympie. While we note the Respondent's submission that the Appellant had access to a vehicle, the basis of that assertion is unclear. It is probable that the vehicle to which the Appellant had access was used by her partner who also worked for the Respondent and doubtless had to travel to work from the same rural location. The fact that the Appellant's partner continued to work for the Respondent is a further matter that impacted on her ability to obtain assistance and her reluctance to involve her partner is understandable. These factors in combination provide a reasonable explanation for the delay and this weighs in favour of the existence of the requisite exceptional circumstances.

[47] The Appellant first became aware of the dismissal on the day it took effect (s. 394(3)(b)). We also adopt the Deputy President's view that the Appellant took steps to dispute the dismissal firstly by initiating contact to seek clarification about whether she had been dismissed and by expressing her distress in a series of text messages sent to the Respondent in which she asked on 11 November whether she still had her job and stated on 14 November that: "I am gut wrenchingly broken to hear I have been sacked...". The Appellant had a further discussion by telephone on 15 November with the Respondent's Depot Manager in which she states that she "argued against the decision the Respondent had made to which the Respondent replied: Have you finished? Do you feel better?" Whether that discussion occurred by telephone or in person is immaterial - the discussion evidences that the Appellant disputed her dismissal (s. 394(3)(c)). Taken together these matters favour an extension albeit only slightly given that the Appellant did not give any further indication that she would make an unfair dismissal application before doing so, some 40 days later.

[48] Other than having to defend the application, there was no evidence of prejudice to the Respondent caused by the delay (s. 394(3)(d)). We agree with the Deputy President's observation that a consideration of the merits of a substantive application for relief in the context of an application to extend time, does not require a detailed analysis of the substantive merits.[13] Both parties dealt extensively with merit in their submissions before the Deputy President and in the appeal. It is sufficient to observe that both parties have arguable cases in relation to merit. In this regard, the Appellant's submissions indicate an arguable denial of procedural fairness. The Respondent's submissions indicate that it may succeed in defending the application on the basis that if the Appellant engaged in a breach of safety in relation to the accident, this may constitute a valid reason for dismissal. It is also the case that the Respondent may succeed with other objections foreshadowed in the appeal in relation to whether the Appellant is a person protected from unfair dismissal or whether the dismissal was consistent with the Small Business Fair Dismissal Code if applicable. However, as the Deputy President correctly noted, the merits of the respective cases could only be tested by a hearing. In those circumstances the Deputy President was correct to conclude that merit is a neutral factor in deciding whether to grant a further period for the application to be made. This is therefore a neutral consideration (s. 394(3)(e)).

[49] To the extent that fairness as between the Appellant and other persons in a similar position involves a comparison of cases involving similar facts, we agree with the Appellant that there is established authority for the proposition that a diagnosed mental health issue that affects the ability of an applicant to make an application within a prescribed time, is a matter weighing in favour of a finding that there are exceptional circumstances justifying a further period being granted. We note however that this matter is commonly considered in combination with other matters (s. 394(3)(f)). This matter should be treated neutrally.

[50] Having regard to the above matters, we are satisfied that exceptional circumstances exist. The jurisdictional prerequisite for the grant of an extension of time is satisfied, and for the same reasons and taking into account the same matters, we exercise our discretion in favour of granting the extension.

(1) Permission to appeal is granted.

(2) The appeal is upheld.

(3) The Decision ( [2023] FWC 759) is quashed.

(4) An extension of time until 16 January 2023 is granted to the Appellant to make her unfair dismissal remedy application in matter U2023/412.

[51] The matter will be remitted to another Member of the Commission to hear and determine the matter. We note that the Respondent has foreshadowed further objections to the application on the grounds that the Appellant is not a person protected from unfair dismissal and alternatively, that the dismissal was consistent with the Small Business Fair Dismissal Code. There is also a suggestion that the Appellant may have sought workers compensation benefits and if successful this may affect her ability to obtain compensation.

[52] In those circumstances we are of the view that it is appropriate that the parties participate in a Conciliation Conference conducted by a Member of the Commission, to avoid the time and expense of the matter being the subject of a further hearing. The parties will be contacted in relation to this process.

[1] [2023] FWC 759.

[2] Gaelene, Manson v Marthakal Homeland Resource Centre Inc [2015] FWC 2880; Mill v Cape Jervis Tavern T/A Pakjem [2016] FWC 1955.

[3] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[4] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44]- [46].

[5] [2010] FWAFB 5343, 197 IR 266 at [24]- [27].

[6] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[7] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB1663, 241 IR 177 at [28].

[8] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace

Relations [2014] FWCFB 2288 at [21].

[9] (1936) 55 CLR 499 at 505.

[11] [2012] FWA 1033.

[12] [2012] FWA 1033.

[13] Kornicki v Telstra-Network Technology Group Print P3168, 22 July 1997.

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