Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - application dismissed.

[1] Mr Hayden Cassidy has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with the Independent Pub Group T/A Brahma Lodge Hotel (Brahma Lodge Hotel) which his F2 Unfair Dismissal Application form advised took effect on 16 February 2017.

[2] The application was lodged on 4 July 2017.

[3] Mr Cassidy's application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:

"I am a timid and quiet person by nature. I seriously suffered anxiety when at high school. I commenced working for the Independent Pub Group (IPG) on the last year of high school. I have been with them ever since (10+years). In the 10 years that I worked for IPG I enjoyed my work and was able to allay my anxiety fears. Over the years I received numerous promotions and advancements in my time being trained in all aspects of the hotel industry. I thought that I was a valued member of staff with the highlight of my career being appointed Retail Manager in one the Group Hotels (sic). However when I was accused of theft and sacked immediately despite my denials and was further forced to give up more than $14,000.00 worth of entitlements and to pay tem a sum of 2,000.00 in cash it seemed to me that all the progress I had made was for nothing and my 10+ years of service to the company was a waste of time. I became very depressed and for some time was reluctant to meet people including not wanting to tell my family and friends. After speaking with my uncle he contacted a solicitor and encouraged me to meet with him. My solicitor's email dated 24 February 2017 and the letter dated 21 April 2017 to my former employers are attached. I have been struggling with day to day issues, a sense of worthiness, refraining from family and friends as well as not being able to get a job. My uncle suggested that I should go away for some time. I went to Western Australia for a few weeks and spent time with family there. I have recently returned and am now feeling much better. My resolve to this sacking ia a lot clearer now and the accusations which IPG has taken is seriously wrong (sic). I will take steps to obtain a report from my GP in regard my issues (sic)."

[4] On 13 July 2017, Brahma Lodge Hotel lodged a form F3 Employer Response which raised a jurisdictional objection on the basis that the application was lodged out of time and that the applicant was not dismissed. On 25 July 2017, a form F4 Objection to Unfair Dismissal Application was lodged confirming these jurisdictional objections. This decision only deals with the extension of time issue.

[5] On 25 July 2017, my Associate corresponded with Mr Cassidy and Brahma Lodge Hotel and advised that the extension of time issue would be considered at a telephone conference on 9 August 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Cassidy was directed to provide a statement concerning the extension of time and any documents to be relied upon by 1 August 2017. Brahma Lodge Hotel was invited to file any material in reply by 7 August 2017.

[6] On 31 July 2017, Sekhon Lawyers ceased to act for Mr Cassidy. On 1 August 2017, Mr Robin Poumako (Mr Cassidy's Uncle) lodged a form F53 notifying the Commission that he was commencing to act as the applicant's representative.

[7] Mr Cassidy provided a written submission which is summarised as follows:

• He has a history of suffering from depression and anxiety.

• For 8 weeks' after his dismissal he totally withdrew from friends and family.

• On or about 22 February 2017, his family found out what had happened and engaged a solicitor, Mr Sekhon of Sekhon Lawyers, to represent him.

• On 24 February 2017, Mr Sekhon sent an email to Braham Lodge Hotel on behalf of Mr Cassidy stating that he would obtain further instructions and would revert in greater detail next week.

• Mr Sekhon sent a further letter to Braham Lodge Hotel on 21 April 2017 contesting the dismissal.

• His family took him to Perth in an attempt to have him mix with extended relatives, hoping that he would open up socially or even gain work with relatives.

• The termination has worsened his anxiety issues and he is currently seeing a psychologist. A letter dated 27 July 2017 from Dr Anura Nitchingham of Elizabeth Park Medical Clinic stated that Mr Cassidy reported being "under a lot of stress as a result of his dismissal from his job", "has a past history of anxiety and depression while at school which was managed by a psychologist" and has been referred to a "Psychologist for management of his anxiety and stress as a result of his dismissal".

• In late June 2017, Mr Poumako telephoned the Fair Work Ombudsman and found out about the 21 day time limit. Mr Poumako informed Mr Sekhon of this who had taken no steps to lodge a claim.

• Mr Poumako subsequently prepared the application and lodged it on Mr Cassidy's behalf on 4 July 2017.

• This is a case of representative error where Mr Cassidy and his family are blameless for the late lodgement.

• The employer will not be prejudiced by the delay.

• In terms of the merits of the application, the applicant denies the allegations of theft and contends that he was threatened and forced into signing a letter and giving $2,000 to Brahma Lodge Hotel.

[8] Brahma Lodge Hotel provided documentation which is relevantly summarised as follows:

• Ignorance about the time limitation is no excuse for the delay.

• The letter dated 27 July 2017 from Dr Anura Nitchingham of Elizabeth Park Medical Clinic does not explain the reasons for the delay or why Mr Cassidy's anxiety condition prevented him from lodging the application.

• There is no evidence from Mr Cassidy's former solicitor that he was instructed to lodge the application within time. The email of 24 February 2017 from Mr Sekhon to Mr Maitland does not suggest that he has instructions to lodge an application.

• There is no evidence why Mr Cassidy's former solicitor ceased to act prior to the hearing of this matter.

• In the correspondence from Mr Sekhon to the employer on 21 April 2017, it is noted that he states that his client intends to issue proceedings for wrongful dismissal.

• There is no evidence before the Commission to support the contention of representative error.

• There is no prejudice to the employer.

• In terms of the merits of the application, Mr Cassidy resigned his employment following a disciplinary meeting regarding serious misconduct issues which he admitted to.

[9] A hearing was conducted by way of telephone conference on 9 August 2017. A sound file record of the telephone conference was kept. Mr Robin Poumako represented Mr Cassidy and Ms Jodie Bradbrook of Bradbrook Lawyers was granted permission pursuant to s.596(2)(a) of the Act to represent Brahma Lodge Hotel with the consent of Mr Poumako.

[10] Mr Cassidy submitted a précis of his earlier submission (which was accepted with the consent of Brahma Lodge Hotel) and relied on the material submitted. During the hearing Mr Poumako advised:

• He had followed up the solicitor a couple of times after 24 February 2017 and again after 21 April 2017.

• It was Mr Poumako who spoke with the Fair Work Ombudsman at the end of June 2017.

• Mr Cassidy had not taken any action to follow up his representative.

• Mr Cassidy worked as a Pizza Driver from early May 2017.

• On 10 June 2017, Mr Cassidy moved to Perth to be with his family.

• No statement had been sought from Mr Sekhon.

[11] Brahma Lodge Hotel relied on its submission and contended that the facts did not disclose 'exceptional circumstances'.

[12] Section 394 relevantly states:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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."

[13] This unfair dismissal application by Mr Cassidy was made 117 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[14] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[1] which stated:

"[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."

[15] I make the following findings.

[16] Mr Cassidy sought legal advice within a week of his dismissal and his solicitor then promptly wrote to the Brahma Lodge Hotel, the communication did not expressly contest the dismissal but raised issues of the theft allegation and the resignation. No further action was taken for about two months. Mr Cassidy took no steps to follow up his representative. Mr Poumako made a couple of telephone calls to the solicitor in this time.

[17] On 21 April 2017, the solicitor wrote a lengthy letter to the Brahma Lodge Hotel contesting the dismissal and advising of its intention to lodge proceedings. No follow-up was made by the representative. Mr Cassidy took no steps to follow up his representative. At the end of June 2017, Mr Poumako spoke with the Fair Work Ombudsman, learnt of the 21 day limit and lodged the claim shortly thereafter.

[18] Whilst Mr Cassidy suggests his mental state impeded his ability to contest the dismissal, no medical evidence was provided identifying any medical condition or the impact on him. I accept that a dismissed party would normally suffer a level of depression but this alone is not an exceptional circumstance. The medical evidence provided is inconclusive.

[19] I note that Mr Cassidy was capable of performing work from early May 2017 and was able to travel from 10 June 2017. This appears to contradict the assertion that Mr Cassidy's mental state prevented him from following up his representative or pursuing his claim from early May 2017.

[20] It is a well-established principle that, depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.[2] In such a case, a distinction is drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.[3] The conduct of the applicant is a central consideration.[4]

[21] It appears that Mr Cassidy has done little to pursue his claim and nothing by way of following up his representative. Any action appears to have been taken by the family unit.

Even if I were to attribute Mr Poumako's actions to Mr Cassidy, the action is too little to regard the applicant as blameless.

[22] Mr Cassidy has failed to adequately account for approximately 4 months of the delay.

[23] The applicant needs to provide a credible explanation for the entire period of the delay,[5] but has not done so.

[24] There is no submission that the granting of an extension of time represents prejudice to Brahma Lodge Hotel.

[25] In terms of the merits of the application, there is insufficient evidence before me to make an assessment of the competing positions and, accordingly, I have regarded the merits as a neutral factor.

[26] Consideration of fairness relative to other persons in similar positions is a neutral factor.

[27] For the reasons I have set out above, I am not satisfied that Mr Cassidy's circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order[6] reflecting this decision will be issued.

Ms J.Bradbrook of counsel on behalf of the Respondent.

[1] [2011] FWAFB 975

[2] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420

[3] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420

[4] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420

[5] Cheval Properties Pty Ltd t/as Penrith Hotel v Smither [2010] FWAFB 7251; (2010) 197 IR 403

[6] PR595263

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