Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application - extension of time - applicant with traumatic brain injury - reliance on mother - mother's error a representative error - exceptional circumstances

• [1] This decision concerns an application made by Mr Jenson Curtin for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). Mr Curtin's employment as an apprentice plumber with High Country Plumbing & Gas Fitting Pty Ltd (respondent) was terminated on and with effect from 15 August 2022. Section 394(2) of the Act states that an unfair dismissal application must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 5 September 2022. Mr Curtin's application was lodged on 6 September 2022, one day out of time. In order for Mr Curtin's application to proceed, he requires the Commission to grant a further period of time within which to bring his application.

• [2] The Act allows the Commission to extend the period within which to lodge an unfair dismissal application only if it is satisfied that there are 'exceptional circumstances.' I adopt the approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975. I note that the requirement for exceptional circumstances in s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is fair to do so.

• [3] Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer (including prejudice caused by the delay); the merits of the application; and fairness as between the person and other persons in a similar position. I will consider each of these matters as they pertain to Mr Curtin's application.

• [4] The Act does not indicate the reasons for delay that might tell in favour of granting an extension of time (s 394(3)(a)), however decisions of the Commission have referred to an acceptable or reasonable explanation. Mr Curtin submitted that the reason for the delay in lodging his application was a mistake made by his mother, upon whom he relies for assistance because of his traumatic brain injury. Mr Curtin submitted a witness statement, prepared with the assistance of his solicitor, in which he said that in January 2021 he was involved in a serious car accident, as a result of which he was in a coma for 11 days, had amnesia for a month, and was hospitalised for six months. Mr Curtin said that he was diagnosed with a traumatic brain injury, that he remains an outpatient at Epworth Hospital, regularly sees an occupational therapist, and takes medication called Keppra. Mr Curtin said that his brain injury affects his ability to communicate, and that he relies on his mother, Ms Kerry Mullins, to help him, including with what he described as 'smarter things' that he struggles to understand, such as paperwork, documents and money. Mr Curtin's evidence was that when he was dismissed, he told his mother that he wanted to do something about it, and that sometime later, his mother told him that she had been advised to make an unfair dismissal application, and he agreed. His mother said that she would make the application for him. Mr Curtin said that he thought that his mother would do whatever needed to be done.

• [5] Ms Mullins gave evidence that she is Mr Curtin's carer, and that with his consent she had applied to the Victorian Civil and Administrative Tribunal to be appointed his legal guardian. Ms Mullins said that she prepared an unfair dismissal application for her son and that on 1 September 2022 she emailed the application to the Fair Work Commission in Melbourne. On 2 September 2022, she sent a copy of the application to the Commission by registered post. She told Mr Curtin that she had sent the application to the Commission for him, and that everything had been done. On 7 September 2022, the registry of the Commission contacted Ms Mullins and told her that the application had arrived in the mail on 6 September 2022, one day out of time. It transpired that the email of 1 September 2022 had not been received, because Ms Mullins had mistakenly misspelt the email address of the Melbourne registry. Ms Mullins attributed the mistake to her dyslexia.

• [6] The respondent submitted that it was unaware of any disability that would have impaired Mr Curtin's ability to lodge his application on time or that made him reliant on his mother, and that following his car accident, Mr Curtin had been declared fit for work. Ms Rebecca Styles, a part-owner of the respondent, gave evidence that in November 2021 she had asked Mr Curtin to sign an application form that would assist the company to obtain government support in connection with the employment of an apprentice with a disability, but that Mr Curtin had refused to sign the form and had said that he was 'not disabled'. The respondent submitted that Mr Curtin was generally unreliable and refused to take responsibility for his mistakes, and that to the extent that Mr Curtin or Ms Mullins were unaware of the 21-day filing requirement, this could not be considered a reasonable explanation for delay.

• [7] I accept the evidence of Mr Curtin about his brain injury, its effect, and his reliance on his mother in relation to documents and other matters. Mr Curtin did not submit medical evidence, however he provided detailed and credible information about his accident in January 2021, his hospitalisation and treatment, and his current condition. His evidence is corroborated by that of his mother. It was not impugned in cross-examination. The fact that Mr Curtin told Ms Styles that he was not 'disabled' does not mean that he does not have a brain injury. He may simply have meant that he does not think of himself as disabled. Evidently Ms Styles was of the opinion that there was a reasonable basis for the company to make an application in respect of Mr Curtin for government assistance for an apprentice with a disability. Further, contrary to the apparent suggestion of the respondent, the fact that Mr Curtin was eventually declared fit for work does not cast doubt on his evidence that he has a traumatic brain injury. It is not logical to assume that because a person is fit for work, they could not have a brain injury. Indeed, the Transport Accident Commission 'return to work closure report' of 3 March 2022, which was submitted by the respondent, stated that Mr Curtin had returned to pre-injury full time hours and duties appropriate for a first year plumbing apprentice, but also noted that Mr Curtin was being referred for a neuropsychology assessment that would provide information about ongoing cognitive concerns resulting from his traumatic brain injury that might impact on his work. Mr Curtin was fit to return to work as an apprentice plumber. But his brain injury meant that he relied on his mother for assistance with various types of activities, including document work.

• [8] In my view, Mr Curtin had an acceptable reason for the delay in the lodgement of his unfair dismissal claim, namely representative error. The typical case of representative error is one where the representative is a lawyer or paid agent, but these are not closed categories. The reason why representative error can be an acceptable reason for delay in the context of s 394(3) is generally that the applicant has a special relationship with the representative and has reasonably relied on that person to attend to the proper lodgement of the application. A lawyer or paid agent has a relationship of trust and confidence with a client. Because of that relationship, it is reasonable for a client to expect a lawyer or paid agent to attend to the proper lodgement of an application, once they have been instructed to do so. Similarly, a person with a neurological limitation affecting their ability to deal with documents may have a relationship of trust and confidence with their carer. That was the case here. Because of his brain injury, Mr Curtin reasonably relied on his mother to lodge his application properly. In practical terms, Ms Mullins was Mr Curtin's representative. I have some doubt that Ms Mullins's mistake in her email of 1 September 2022 was the result of dyslexia. Omitting the 'r' from 'Melbourne' does not strike me as the product of the letter confusion that is common with dyslexia. It seems to me to have been an everyday typographical error. But it was not Mr Curtin's error. It was representative error. The reason for delay weighs in favour of an extension of time in this case.

• [9] In relation to the consideration in s 394(3)(b), Mr Curtin said that it was only on 18 August 2022, three days after his dismissal took effect, that he saw the company's termination letter dated 15 August 2022, which was emailed to him by the company's lawyer. An employee would not ordinarily be expected to be alive to the possibility of receiving correspondence from their employer through a third party. Nevertheless, I infer that Mr Curtin was aware of his dismissal before he saw the termination letter on 18 August 2022, because the F2 unfair dismissal application prepared by Ms Mullins is dated 16 August 2022. Further, I do not consider that Mr Curtin was prejudiced in the timely lodgement of his application by the fact of not being aware of the dismissal on 15 August 2022, because Ms Mullins endeavoured to file the application by email on 1 September 2022, well within the 21 day period. In my view the consideration in s 394(3)(b) is a neutral factor.

• [10] The consideration in s 394(3)(c) is whether the applicant took any action to dispute the dismissal. In my view this is primarily concerned with action taken by the applicant to dispute the dismissal directly with the former employer, such as telling the employer that the dismissal was unfair or would not be accepted by the applicant, rather than action of which the employer is unaware. Although Mr Curtin told his mother that he wanted to do something, and Ms Mullins sought advice, this was action that was taken to consider whether and how to dispute the dismissal. If it is to be regarded as action taken to dispute the dismissal, I afford it little weight. It is a neutral consideration.

• [11] The considerations in ss 394(3)(d) and (f) are neutral matters: there is no evidence of prejudice to the employer, and I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Curtin and other persons in a similar position.

• [12] In considering whether there are exceptional circumstances, the Commission must take into account the merits of the application (s 394(3)(e)). Mr Curtin submitted that his dismissal was unfair because there was no valid reason for it. He said that he had been criticised for using his mobile phone at work, but that in fact he relied on his telephone to answer calls from doctors or his mother, and to remind himself to do things. Mr Curtin said that he had been accused of being rude and disrespectful but that this was not true, although his brain injury did affect how he communicated with people. Mr Curtin said that on 1 August 2022 he attended a disciplinary meeting with his mother, Ms Styles and Mr James Herz to discuss concerns that the company had raised about his performance, but that the others began raising their voices, and the meeting ended. A further meeting was scheduled for 15 August 2022, but this did not proceed because the company insisted that it take place at the office of their lawyers, to which Mr Curtin and his mother objected. Mr Curtin said that his dismissal was harsh, unjust and unreasonable.

• [13] The respondent submitted that the dismissal was not unfair because Mr Curtin had been given multiple warnings about unacceptable behaviour and had been told that his employment was at risk if it continued. The alleged behaviour was addressed in the witness statement of Mr Herz, and was said to have included Mr Curtin's practice of taking his shirt off while working in customers' homes; using his telephone while working on roofs; failing to wear the company uniform as required; showing Mr Herz inappropriate pictures and videos of women with whom he claimed to have had intimate relations; and sending explicit pictures of himself to a subcontractor, the son of an important client, who has Asperger's, and who was upset by the messages. In a reply statement, Mr Curtin said that Mr Herz's evidence about his conduct was either not true or did not explain the context. The company contended that Mr Curtin's behaviour had given it a valid reason to dismiss him and that in all the circumstances the dismissal was not unfair.

• [14] An application to extend time is in the nature of an interlocutory application (see s 396). The merits of the application will depend in large measure on factual findings in respect of contested points of evidence. If Mr Curtin's evidence is accepted, his application has reasonable prospects of success. But if the company's evidence and characterisation of Mr Curtin's behaviour are accepted, the merits of the application would be weak. I consider that, at this early stage, it is appropriate to consider the merits a neutral consideration in deciding whether an extension of time should be granted.

• [15] For the reasons given above, there was an acceptable explanation for the delay in the lodgement of Mr Curtin's application. The applicant has a brain injury. He relied on his mother, who cares for him, to lodge his application. His mother made a mistake. This was representative error. In my view, these are exceptional circumstances.

• [16] As I am satisfied that there are exceptional circumstances, the discretion to extend time under s 394(3) is enlivened and I consider it appropriate to exercise it. Mr Curtin should have the opportunity to have his unfair dismissal application determined on the merits. Mr Curtin's unfair dismissal application will shortly be programmed for hearing. I propose to direct the parties to attend a member-assisted conciliation conference.

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