//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2017] FWC 3946
Fair Work Commission
2017-08-08
Commissioner Bissett
Original judgment source is linked above.
[2017] FWC 3946 [Note: An appeal pursuant to s.604 (C2017/4764) was lodged against this decision and the order arising from this decision.]
s.394 - Unfair dismissal
Application for relief from unfair dismissal - extension of time - application dismissed.
[1] Mr Joseph Costelloe was employed by Origin Energy Ltd T/A Origin Energy (Origin Energy). He resigned his employment on 2 December 2015. On 2 November 2016 Mr Costelloe made an application to the Fair Work Commission (Commission) for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[2] Origin Energy made objection to that application on the grounds that it was filed outside the statutory time limit specified in s.394(2) of the FW Act. The objection was upheld and the application dismissed in a decision[1] of Senior Deputy President Drake. Mr Costelloe successfully appealed that decision and the matter was remitted to me to hear.
[3] Pursuant to directions issued by the Commission Mr Costelloe filed submissions and extensive materials. Further, he sought orders to attend directed to a number of individuals, some of which were issued.
[4] Origin Energy filed submissions in accordance with the directions of the Commission.
[5] At the conclusion of the hearing of the evidence further directions were issued for the filing of final written submissions.
[6] The material filed by the parties in relation to the extension of time matter are:
Mr Costelloe submissions dated 5 May 2017 with attached medical and counselling records;
2. Mr Costelloe amended submissions dated 8 May 2017 consisting of 85 paragraphs and extensive associated material (over 500 pages);[2]
[7] The following witnesses were called by Mr Costelloe:
Ms Paddy McNee;
Ms Marie Kinshela; and
Dr William Bay.
[8] The following witnesses were called by Order of the Commission at the request of Mr Costelloe:
Ms Melanie Thorley;
Dr Lidija Coha;
Dr Jane Schouten; and
Dr Gary Larder.
[9] Prior to the hearing I granted permission to Origin Energy to be represented by a lawyer.[3]
[10] Mr Costelloe had put to the Commission that it was necessary that I first decide if he had been dismissed prior to deciding if an extension of time should be granted. Mr Costelloe was advised by my chambers that this was not a necessary precondition to deciding an extension of time and that I would not decide that matter. Mr Costelloe was advised that if his extension of time was granted whether or not he had been dismissed would be determined with the merits of his application.
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(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.
[12] Section 396 of the FW Act sets out those matters that must be determined prior to considering the merits of an application. One of those matters is "whether the application was made within the period required in subsection 394(2)".
[13] In considering if an extension of time should be granted, s.394(3) of the FW Act requires that the Commission must be satisfied that there are exceptional circumstances, taking into account the enumerated factors.
[14] The meaning of exceptional circumstances was considered in Nulty v Blue Star Group Pty Ltd[4] where the Full Bench of the Commission found:
[15] In Brodie-Hanns v MTV Publishing Limited[6] Marshall J of the Industrial Relations Court of Australia found that:
...The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
[16] An applicant for an extension of time must provide a credible reason for the total period of the delay. In Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers[7] the Full Bench heard an appeal from a member of the Commission who at first instance granted an extension of time for the making of an application for unfair dismissal. The applicant in that matter was dismissed on 18 December 2009 but did not make her application for unfair dismissal until 10 February 2010, well outside the 14 day time period specified in the FW Act[8] for making such an application. The Full Bench said:
Ms Smithers does not advance any reason for her delay between 8 January and 21 January 2010 in making her unfair dismissal remedy application to FWA, other than her expectation that there would be something else from Cheval about her dismissal after being told of it by them on 18 December 2009. However, her evidence that she held such an expectation is not credible given that on 18 December 2009 she asked Cheval for a letter stating the reasons for her dismissal and was told by them then that it would not be provided.
It is apparent from the Commissioner's decision that in being satisfied there were exceptional circumstances, the Commissioner does not consider Ms Smithers' failure to provide a credible reason for her delay between 8 and 21 January 2010 in making her unfair dismissal remedy application to FWA.
The Commissioner's failure to take into account such a matter is an appealable error of the type set out in House v The King. Such a matter should have been a material consideration in the Commissioner's decision as to Ms Smithers' reasons for delay and whether she was satisfied there were exceptional circumstances.[9]
[17] Mere ignorance of the law is not a sufficient reason for the delay.[10]
[18] Representative error may provide grounds for the granting of an extension time but is not definitive of the question. A distinction should be drawn between a delay caused by the representative "where the applicant is blameless and delay occasioned by the conduct of the applicant...[t]he conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay..."[11]
[19] In Coyne v Ansett Transport Industries[12] Marshall J noted:
However, as Wilcox J made clear in Hunter Valley Developments Pty Ltd v Cohen [[1984] FCA 176; (1984) 3 FCR 344] 351, a delay by a solicitor although not necessarily to be treated as the direct delay of a client is not necessarily a sufficient basis to excuse the delay in bringing an application. Given the initial delay in the applicant's raising the matter of his termination of employment with his solicitors, it is my view that such inertia would not have enlivened the solicitors to the urgency of the matter. Therefore, some blame should be visited upon the applicant for the slow reaction of his solicitors.
[20] Action taken by a person to dispute their dismissal, besides lodging the application for unfair dismissal, is a relevant consideration.[13]
[21] It is up to the Respondent to demonstrate that there is prejudice to it in granting an extension of time. In Brisbane South Regional Health Authority v Taylor[14] it was found that a long delay will give rise to a general presumption of prejudice.[15] Once the Respondent provides evidence of the prejudice it would suffer it is up to the Applicant to show that the facts do not amount to prejudice.
[22] It is not necessary for the Commission to determine the merits of an application in making a decision with respect to the grant of an extension of time. Rather:
...the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement...Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case...In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.[16]
[23] The determination of the question of fairness requires a consideration of the position of the applicant "in relation to other applicants employed by the same employer and affected by the same issue who filed applications in time."[17]
[24] I have applied these principles to the application of Mr Costelloe.
[25] Mr Costelloe has provided a number of cases that he says support the grant of an extension of time in his particular circumstances. I have taken account of the cases he puts forward.
[26] I would observe however, that beyond the principles outlined in the specific cases cited above, so much of the decision as to whether or not to grant an extension of time revolves around the circumstances of a particular case. There will be cases where a long delay has still resulted in the grant of an extension of time and when a short delay has not; where prejudice to the employer is a major consideration and where it is not; and where the merits so clearly favour the grant of the application and where it weighs against such a grant. It is unlikely that two sets of factual circumstances will be the same such that much reliance can be placed on cases that turn on their own facts.
[27] In considering the reason for the delay it is instructive to keep in mind that Mr Costelloe resigned his employment with Origin Energy on 2 December 2015. He made his application for relief from unfair dismissal to the Commission on 2 November 2016.
[28] Mr Costelloe's application should have been made by 23 December 2015 for it to be within time. It was not made for a further 11 months and 7 days. The total period of this delay needs to be considered.
[29] Mr Costelloe puts forward a multitude of reasons for the delay in making his application. These include:
• That it was predominantly caused by relying "solely on the knowledge advice" of employment lawyer [Ms Thorley] "with regard to constructive dismissal matters in concert with symptoms of a psychological injury incurred when following the misdirection towards a General Protection's application";[18]
• Acts of omission by Mr Cruz and Ms Thorley in not advising him that he had grounds to make a claim for constructive dismissal;[19]
• Pursuing his workers' compensation claim including seeking legal advice to assist in this process;[20]
• The obligations of a self-represented litigant.[21]
[30] It is apparent that the key reasons for the delay relied on by Mr Costelloe are the actions of lawyers Mr Cruz and, in particular, Ms Thorley, his psychological illness and matters associated with his workers' compensation claim.
[31] Whilst I accept that the other matters he has detailed may have effected how much time he had to spare none of them, individually or collectively, adequately explain the delay in making the application. They should, of course, be considered in conjunction with the other reasons.
[32] Ms Melanie Thorley first had brief contact with Mr Costelloe in March 2015[22] (although Ms Thorely has no memory of the contact). Whilst it is not clear the circumstances of this advice (it may have been through a community legal centre) it appears that he received advice that he could not claim constructive dismissal or unfair dismissal at this time as he had less than six months' service with Origin Energy (and hence would not qualify under the FW Act to make such an application).
[33] Ms Thorley had further contact with Mr Costelloe in October 2015. Her advice to Mr Costelloe at this time was in relation to unpaid entitlements and she provided written advice in this respect on 20 October 2015.
[34] Ms Thorley said that on 29 October 2015 she had further contact with Mr Costelloe which was recorded in a file note. That note read:
I called Joe on [04XXXXXX], left a message to call me back, 12.30. Had a few issues at work. I have to resign, wait for Fair Work Ombudsman. Problem with breach of privacy. Wants to know the issues behind constructive dismissal. I walked him through the unfair dismissal application forms and the cost of a fixed fee of $1,500.[23]
[35] Whilst Ms Thorley could not recall what walking Mr Costelloe through unfair dismissal application forms entailed, I am satisfied that she did discuss with or provide information to Mr Costelloe consistent with the file note.
[36] Mr Costelloe suggested that his telephone records from the time[24] do not show a lengthy conversation with Ms Thorley. However, his telephone records only allow a conclusion that he did not make a call to Ms Thorley from that telephone number that went for an extensive period. They do not prove conclusively that he did not have a conversation with Ms Thorley where she talked him through an unfair dismissal form or that she did not provide such information to him, just that such a call did not originate from his mobile phone on 29 October 2015.
[37] Ms Thorley had further contact with Mr Costelloe on 2 November 2015 in relation to attempts by Mr Costelloe to negotiate an exit from Origin Energy.[25]
[38] On 6 November 2015 Ms Thorley had a conversation with Mr Costelloe in relation to a possible settlement with Origin Energy and with respect to his Fair Work Ombudsman (FWO) complaint. In that conversation Ms Thorley's file note indicates she advised Mr Costelloe that "there are some other option, [sic] like a general protections application while you are still an employee or an application to cease bullying."[26]
[39] On 9 November 2015 Mr Costelloe emailed Ms Thorley at 8.22am[27] and indicated that he intended making an adverse action claim against Origin Energy and a bullying application to the Commission. He sought advice as to whether he should wait for some complaints to run their course before making his applications keeping in mind he also had a matter with the FWO. Mr Costelloe ended his email with the question "When can I resign?"
[40] Ms Thorley responded that the matter before the FWO was separate to the other matters, provided advice on a general protections application including the need to demonstrate adverse action and responded to other matters Mr Costelloe raised. Ms Thorley ended her email by stating:
Your question on resignation, you can resign at any time, but if you do so you will not be able to make an GPA-non-dismissal dispute or an application for an order to cease bullying. It is important that you are tactical about when you are going to resign. If you wish to make a GPA non dismissal dispute, then you will need to continue working but if you make it a dismissal dispute then you can resign at any time, but it is likely you will not get your exit negotiation.[28]
[41] Mr Costelloe responded that he would like to engage Ms Thorley to assist in a non-dismissal general protection application (GPA).
[42] On 12 November 2015 Ms Thorley had a conversation with Mr Costelloe about his chances of success in the general protections application (his chances of winning were less than his chances of losing).[29] A further file note of the same day indicated that Mr Costelloe had decided not to proceed with the "matter".[30]
[43] Ms Thorley gave evidence that she could not recall any other details of telephone conversations she had with Mr Costelloe beyond those recorded in her file notes.
[44] Ms Thorley said that she never received instructions from Mr Costelloe to file an application for unfair dismissal.
[45] Mr Costelloe agreed that, when he first contacted Ms Thorley it was in regard to an overpayment Origin Energy claimed had been made to him and with respect to his leave entitlements. He said that, while he wanted to discuss so much more, the overpayment and leave "was the pressing issue".[31] Mr Costelloe agreed that he did not consult Mr Thorley after his employment with Origin Energy ended on 2 December 2015.[32]
[46] Mr Costelloe conceded during his evidence that he raised the issue of constructive dismissal with Ms Thorley around 29 October 2015[33] and that the term "forced resignation" was used at this time.[34].
[47] Mr Costelloe sought to bring into question the credibility of Ms Thorley's evidence as a whole on the grounds that some of her answers might indicate "nerves or a sense of guilt", that she was "evasive and non-cooperative" in some of her testimony going to her experience in providing advice in relation to constructive dismissal, her experience in dealing with clients suffering from mental illness and her admission that there is not a lot of money to be made in unfair dismissal cases.[35]
[48] I do not accept the submissions of Mr Costelloe as the credibility of Ms Thorley's evidence. In my opinion she gave her evidence openly and honestly. She did not claim expertise she did not have and she was honest in relation to the extent of her memory of conversations with Mr Costelloe.
[49] It is not in dispute that Mr Costelloe did not have any contact with Ms Thorley after 12 November 2015, prior to the date he resigned from Origin Energy.
[50] Ms Thorley (rightly) stated that she could not comment on the intent of Mr Costelloe's telephone calls to her if he did not clearly set them out for her. Whilst Mr Costelloe agreed that he raised "constructive dismissal" with Ms Thorley, I am satisfied that his instructions to her were with respect to the overpayment and leave matters and in respect of a non-dismissal general protections application and that she did provide specific advice as to the effect of a resignation on such an application.
[51] I am satisfied, on the basis of the file notes provided by Ms Thorley that she did, at one stage, take Mr Costelloe through unfair dismissal matters. I am not satisfied that Mr Costelloe sought advice from Ms Thorley, beyond the very general, as to what his options were should he resign. In any event I am not satisfied that Mr Costelloe at any time after he resigned sought advice from Ms Thorley as to his options at that time.
[52] Whilst Mr Costelloe sought to apportion blame to Ms Thorley for misdirecting him because of his psychological illness, Ms Thorley could only give advice on those matters raised with her by Mr Costelloe. There is no evidence that Ms Thorley had any knowledge of Mr Costelloe's "psychological injury".
[53] I note that Ms Thorley did raise the possibility of Mr Costelloe's ability to make a "dismissal dispute" should he resign in her email to him on 9 November 2015.
[54] Beyond Ms Thorley's file note which indicates Mr Costelloe asked her about constructive dismissal and she took him through the unfair dismissal form, the flow of conversations between Ms Thorley and Mr Costelloe, as recorded in her file notes and the emails between the pair suggest that Mr Costelloe engaged with her on matters associated with a continuation (at least for a limited period) of his employment: a negotiated mutual separation possibility and a bullying application or general protections non-dismissal application. When Mr Costelloe did raise resignation with Ms Thorley her response was reasonable in the context of the conversations and emails that preceded it.
[55] Mr Costelloe saw Mr Cruz prior to resigning his employment and prior to seeing Ms Thorley. His consultation with Mr Cruz appears to have been in relation to making a workers' compensation claim. There is no evidence that Mr Costelloe sought any information from Mr Cruz about his employment status or how to deal with what, for him, was becoming a very difficult work situation.
[56] Mr Cruz was not called as a witness. His interaction with Mr Costelloe was well before his resignation and, even on Mr Costelloe's submissions, there is no hint that Mr Costelloe sought to engage Mr Cruz in matters related to constructive dismissal or unfair dismissal.
[57] There is, therefore, no basis to conclude Mr Cruz deliberately or otherwise withheld information from Mr Costelloe about any remedy he might have if he resigned his employment or that he advised Mr Costelloe that he could not make an application for unfair dismissal.[36]
[58] The evidence of Dr Lidija Coha, Mr Costelloe's general practitioner (GP), is that Mr Costelloe had been very stressed in the lead up to his resignation from Origin Energy and that the stress influenced his ability to make important decisions. She said that Mr Costelloe attended her for a consultation on 30 November 2015 and told her he had resigned, that he felt more relaxed, did not need sleeping tablets and wanted to reduce his antidepressant medication. She did not see him again until 22 February 2016 when he said he felt stressed again. [37]
[59] Dr Jane Schouten was Mr Costelloe's treating psychiatrist. She said that, when she saw Mr Costelloe on 11 November 2015, he would have been able to comprehend and communicate "matters of a legal nature" "consistent with a general lay person."[38] She said that, while Mr Costelloe was having difficulties at work, he was functioning quite well outside the workplace and that, at this time he was "able to concentrate to do a six page submission."[39]
[60] On 17 February 2016 Dr Schouten provided a report to Dr Coha in which she said she had seen Mr Costelloe on 9 February 2016 after not having seen him since November 2015. She said he presented as settled, appropriate and euthymic (meaning not agitated or anxious[40]). The letter went on to state that "[o]ver the past three to four months Joe has stabilised and reports generally experiencing minimal mood and anxiety symptoms although does at times ruminate about his issues at Origin and the injustice of his situation..."[41]
[61] Dr Gary Larder was Mr Costelloe's treating psychiatrist from 20 September 2016. He wrote to Dr Coha on 29 September 2016 that Mr Costelloe suffered from a chronic syndrome of anxiety and depression. He does not make any diagnosis of any psychiatric condition.[42]
[62] Dr Larder said that it is common for fluctuations in mental state functions and presentation for a person diagnosed with an adjustment disorder and that the fluctuations can occur within a day, 24 hours or 48 hours and that there are "a host of variables" that might explain the fluctuations.[43]
[63] Dr Larder said that at the time Mr Costelloe started to see him he was expressing concern with respect to unresolved issues in relation to Origin Energy, workers' compensation and, what Dr Larder called, "on-going legal and industrial matters."[44]
[64] Whilst I appreciate the diagnoses of Mr Costelloe's condition and his on-going treatment, there is nothing in the evidence of his treating doctors that suggests he was not capable of pursuing an application for unfair dismissal during the period December 2015 to November 2016. In fact his psychiatrist and GP both observed that he was settled and relaxed from the time he resigned until about 20 February 2016.
[65] I do not accept Mr Costelloe's submission with respect to the evidence of Dr Schouten. There were no inconsistencies in her evidence such that I should disregard it. Mr Costelloe consulted Dr Schouten from well before his resignation through to mid 2016. Her evidence with respect to Mr Costelloe is sound and accords with that of Dr Coha.
[66] Mr Costelloe made submissions as to number of workers' compensation claims he had dealt with and the amount of time they absorbed.[45]
[67] In particular Mr Costelloe says that he became "obsessed" with his workers' compensation claims in about June 2016.
[68] Whilst Mr Costelloe's workers compensation took up a degree of his time, the prosecution of it by him does not explain his failure to make an application for unfair dismissal.
[69] Ms Paddy McNee is Mr Costelloe's wife. She is the General Manager People and Culture for a sports club in Brisbane. She has worked in human resources most of her working life.
[70] Her evidence is that Mr Costelloe was competent and lucid in the period after his resignation although puts this down, in part, to news of her pregnancy.
[71] Ms McNee said that Mr Costelloe was aware of "constructive dismissal" as a concept before he resigned his employment and that they had spoken about it.[46] Whilst Ms McNee said she had encouraged Mr Costelloe to seek legal advice about the question[47] she agreed that she had received training in dealing with unfair dismissals, she was aware of the concept of constructive dismissal, that the law may regard a resignation as a dismissal in certain circumstances and that she was aware of this before Mr Costelloe resigned his employment.[48]
[72] Ms McNee however, provides no compelling reason for the delay in Mr Costelloe making his application for unfair dismissal with the Commission.
[73] Ms Marie Kinshela is Mr Costelloe's sister. She gave evidence as to the deterioration in their mother's health and the need to have her placed in a nursing home through late 2015 and early 2016. Her evidence went to Mr Costelloe's role in the family decision-making with respect to his mother, his concern for her health and his visits to her in the nursing home.
[74] Whilst I appreciate the time taken in visiting his mother on a regular basis and the demands of the decisions in relation to his mother made on Mr Costelloe and his siblings, this does not explain the delay in making his application for unfair dismissal.
[75] Dr Bay is a doctor practising in a hospital although gave evidence as a friend of Mr Costelloe. He said that he had known Mr Costelloe for 24 years.
[76] Dr Bay said that Mr Costelloe was consumed by his workers' compensation claim and was very disorganised. He said he assisted Mr Costelloe by helping him organise his materials and by assisting with his submission.
[77] Dr Bay said Mr Costelloe first mentioned constructive dismissal to him in late January 2017 although agreed that Mr Costelloe had inserted a reference to constructive dismissal and unfair dismissal into his workers' compensation draft submission in April 2016.
[78] Dr Bay's evidence with respect to when Mr Costelloe first raised the issue of constructive dismissal with him is inconsistent with all of the other evidence given and with the documentary evidenced in the draft submission in April 2016. He does not provide any evidence which explains the reason for Mr Costelloe making his application over 11 months out of time.
[79] It is often presumed that the legislation requires that there be exceptional circumstances for the reason for the delay in making an application for unfair dismissal. This is not what the legislation says.
[80] The FW Act requires that, prior to considering an extension of time, the Commission must be satisfied that there are exceptional circumstances taking into account a number of factors including the reason for the delay. It is not the case that the reason for the delay must be exceptional. Having said this, it must be that the reasons given must satisfactorily explain the delay.
[81] Mr Costelloe presents multiple reasons for the delay in making his application.
[82] I do not accept that the advice from Ms Thorley (or Mr Cruz to the extent this is claimed by Mr Costelloe) provides an acceptable reason for the delay in Mr Costelloe making his application. Firstly, there was no instruction that Mr Costelloe provided to any lawyer he engaged to make an application to the Commission or any other tribunal or court in relation to the cessation of his employment with Origin Energy. There is, therefore, no error made by any lawyer in failing to fulfil his instructions.
[83] Second, Ms Thorley did take Mr Costelloe through the unfair dismissal form in November 2015. Even if Mr Costelloe is right and she did not take him through the form this would not alter my overall conclusion based on the weight of evidence.
[84] Third, Ms Thorley gave advice to Mr Costelloe that he could resign at any time and make a "dismissal dispute", an invitation Mr Costelloe did not take up.
[85] Fourth, while Ms Thorley advised Mr Costelloe that an "option" was a general protections application not involving dismissal, there is no evidence she advised him that this was the only option available to him. I am satisfied that she did alert Mr Costelloe to the ability to take action in relation to dismissal but did warn him that this may lead to an end to the negotiations then occurring with respect to a mutual separation from Origin Energy.
[86] Finally, Mr Costelloe, on his own evidence, was aware of constructive dismissal matters during and after his consultations with Ms Thorley and at least appreciated a link between constructive dismissal and unfair dismissal in April 2016 when he drafted his submission with respect to his workers' compensation claim. His failure to act at this stage cannot be put down to some error by Ms Thorley.
[87] Whilst with hindsight it is easy to suggest that different advice might have been given, Ms Thorley's notes and emails in relation to Mr Costelloe indicate that she responded to matters raised by Mr Costelloe and gave appropriate advice on those matters.
[88] Mr Costelloe casts the representative error or misdirection as a failure by Ms Thorley or others to advise him, prior to his decision to resign, that he could or should resign and then make an application for unfair dismissal in relation to that decision (because of the circumstances leading up to the decision). Having set on this perceived error by Ms Thorley and others, Mr Costelloe relies on it to explain 11 months of delay in making his application.
[89] In Ballarat Truck Centre Pty Ltd v Melissa Kerr[49] Ms Kerr had consulted a lawyer about her options. The lawyer in that case,
[18] ...initially informed Ms Kerr that he had not had much involvement with general protections applications and would need to get back to her. At the meeting on 19 January 2011, Mr Francis advised Ms Kerr he would not be making a s.365 application on her behalf and that it was "best to let sleeping dogs lie" rather than be "stressed out". The basis for this advice appears to be that the proceedings could have aggravated Ms Kerr's health, and that the most appropriate course of action would be for her to proceed with her WorkCover claim.[50]
[90] The Full Bench of the Commission rejected the proposition that, in circumstances where the lawyer was not instructed to make an application to the Commission (in that case in relation to a general protections application involving dismissal), representative error could be found.
[91] The factual circumstances in this matter are not substantively dissimilar. Mr Costelloe did not give instructions to Ms Thorley or any other lawyer to start proceedings in relation to the end of his employment with Origin Energy such that representative error could be found to be a reason for the delay in lodgement. Further, there are no grounds on which I can find Mr Costelloe was "misdirected" by any lawyer. This is not a case where he was advised to take a particular course of action, followed that course and it was incorrect. Mr Costelloe was not advised that there was no action he could take if he resigned his position. In fact, the email evidence is the opposite of this.
[92] Mr Costelloe's reliance on the decision of the Commission in Bidinost v Orica Australia Pty Ltd[51] to support his claim for representative error is misplaced. In that matter (unlike Kerr) the applicant had given clear instructions to his representative that an application should be lodged with the Commission. He followed it up with his representative on a substantial number of occasions, eventually discovering that no application had been made. There is no similarity with the current matter where Mr Costelloe provided no specific instructions to Ms Thorley.
[93] I am not convinced anything can be drawn from the costs provisions of the FW Act.
[94] I am not satisfied that it can be established that Ms Thorley misdirected Mr Costelloe such that it was reasonable for him to conclude he could not take action with respect to the end of his employment or to not investigate the possibility further.
[95] There is nothing in the evidence of any of Mr Costelloe's doctors that suggests he was not able to research, understand or complete an application to the Commission with respect to unfair dismissal within the prescribed period or before 2 November 2016.
[96] In reaching my conclusion with respect to the medical evidence I have taken into account that Dr Larder, on whom Mr Costelloe places some reliance, did not start to treat Mr Costelloe until 20 September 2016, nine months after Mr Costelloe resigned. I cannot draw any conclusions as to Mr Costelloe's medical condition or its impact on his ability to make an application prior to September 2016 from the evidence of Dr Larder. At best Dr Larder provides some explanation for the delay from September to November 2016 (but not all of it) although does not give evidence Mr Costelloe could not have made an application for unfair dismissal before he did.
[97] Further, there seems to be no record of any psychiatric treatment (Dr Schouten or Dr Larder or anyone else) between June 2016 when Dr Schouten's last notes appear to be recorded and when Dr Larder first saw Mr Costelloe such that any conclusion could be drawn as to Mr Costelloe's inability to complete an application during this period.
[98] I do accept that Mr Costelloe was suffering from stress and anxiety and this most likely commenced when he was still employed by Origin Energy and continued after his resignation. I accept his submissions that he was "impaired in some degree during the period October 29 through November" 2015 which was, in his submission, "the most critical time when seeking the legal advice on a constructive dismissal" but this does not explain the delay in making his application for a year until November 2016.
[99] There is no medical explanation for the delay in making his application.
[100] Mr Costelloe spent an extensive period of time on his workers' compensation claim, researching and drafting submissions and appeals suggesting that he was capable of undertaking extensive research. From this it can reasonably be inferred that Mr Costelloe could have, some basic research, found information with respect to applications he could have made to the Commission in relation to his resignation from Origin Energy.
[101] Mr Costelloe originally submitted that he only discovered that he could make an application for unfair dismissal when speaking to another ex-Origin Energy employee in October 2016 but then said that he discovered he could make an application when researching matters associated with trust and confidence for his workers' compensation claim. These submissions however belie the fact that he was aware of constructive dismissal matters in March 2015, that it was alive for him again in November 2015 and it was a matter he considered in April 2016 when he included in a draft of a submission on his workers' compensation claim that he could not make a constructive dismissal/unfair dismissal claim (in March 2015) because he was in the first six months of his employment.[52]
[102] Even if I did accept Mr Costelloe's submission that he became obsessed with his workers' compensation claim from June 2016 this does not explain the delay in making his application for unfair dismissal up to that point in time.
[103] Whilst Mr Costelloe chose to put such effort into his workers' compensation claim this does not provide a substantive reason for not making an application for unfair dismissal. Mr Costelloe chose where to put his efforts. He cannot do so and then say that this choice explains or is justification for the delay in making his unfair dismissal application.
[104] I accept that there were many things happening in Mr Costelloe's personal life on and after the time he resigned his employment including the birth of his first child and his mother's deteriorating health.
[105] It is, however, not unusual for a person making an application for unfair dismissal to have other things happening in their lives. Those aspects of life outside employment continue, no matter the circumstances surrounding the cessation of employment.
[106] It is reasonable to expect, and the legislature must reasonably have considered it, that a person could make an application for unfair dismissal with all of the other normal parts of life continuing on around them. Whilst I appreciate Mr Costelloe may have had a number of things happening he has not put anything on these matters that explains the delay in making his application to the Commission.
[107] It is not enough just to dismiss each reason given by Mr Costelloe as not providing an acceptable explanation for the totality of the delay in making his application for unfair dismissal to the Commission. The reasons must be considered collectively to determine if they explain the period of the delay. To this extent I accept Mr Costelloe's submission that events do not happen in isolation.
[108] However, Mr Costelloe submits that the "critical part of the exceptional circumstances relates to the period in late October to mid-November 2015. This period had a causative effect on one of the most significant reasons for the delay in the application".[53]
[109] I am not satisfied, on the basis of the evidence of Ms Thorley or Mr Costelloe, that Ms Thorley "misdirected" Mr Costelloe such that he was incapable of making an application for unfair dismissal until November 2016. Mr Costelloe did not engage with Ms Thorley after mid November 2015 but now, in effect, blames her for the lack of action on his part for a further 11 months.
[110] In the period immediately following his resignation all of the evidence indicates that Mr Costelloe was engaged, alert and "euthymic". Despite this, Mr Costelloe took no steps to seek advice in relation to his resignation.
[111] Mr Costelloe himself conceded that he was in better mental health from December 2015 to February 2016, a view supported by Dr Coha and Dr Schouten, and that he could have completed an application for unfair dismissal at that stage.[54]
[112] Mr Costelloe did nothing after the cessation of his employment to determine if there was any action he could have taken. He consulted some 15 law firms[55] with respect to his workers' compensation claim but does not indicate that he asked any of them about the circumstances of the cessation of his employment and if there was any claim he could make in that respect.
[113] Mr Costelloe was not incapacitated for the total period of the delay. In fact his meticulous work and research on his workers' compensation claim and associated matters indicates that he was well capable of undertaking research, of filling in forms and of communicating with relevant government agencies.
[114] For these reasons I do not accept that any advice from Ms Thorley "had a causative effect" on the reasons for delay or that other matters, in addition to the advice from Ms Thorley, provides an acceptable reason for the totality of the delay.
[115] Mr Costelloe finds reasons for parts of the delay in making his application to the Commission. Whilst these various matters might explain some of the periods of delay they do not, collectively, explain the totality of the period of delay.
[116] Whilst I am satisfied that Mr Costelloe can explain some of the delay I am not satisfied that he has provided an acceptable reason or reasons for the totality of the period of the delay in making his application for unfair dismissal.
Whether the person first became aware of the dismissal after it took effect
[117] Mr Costelloe resigned his employment with Origin Energy on 2 December 2015. He says he did not understand it to be a dismissal until October 2016.
[118] In his written submissions filed after the hearing of evidence Mr Costelloe submits:
Any notion that associates the date of resignation as having any relevance to the criteria, does not match the language of the section. Granted, that the resignation date is assumed as the dismissal date for the purpose of the hearing but that appears to negate any debate on the merits of the substantive matter and for setting the 21 day post dismissal date [for making an application].[56]
[119] Mr Costelloe misunderstands the purpose of s.394(2)(b) of the FW Act. Mr Costelloe resigned on 2 December 2015. He knows that is the date his employment relationship with Origin Energy ended. It is not the case that he did not understand his employment had ended until some 11 months later.
[120] A further difficulty in accepting Mr Costelloe's argument as to when he "discovered" his resignation was a dismissal is that he had drawn a link between constructive dismissal and unfair dismissal in at least April 2016 and knew of such a link even earlier when Ms Thorley spoke to Mr Costelloe about constructive dismissal and talked him through the unfair dismissal form prior to his resignation. Mr Costelloe himself agreed that, while he did not recall being walked through the unfair dismissal form by Ms Thorley, there was mention of the terms "constructive dismissal" and "forced resignation".[57]
[121] In Mr Costelloe's draft submission with respect to his workers' compensation claim in April 2016 he wrote, after mention of a case (from the UK):
Such remedy (unfair dismissal/constructive dismissal) was not available to me as I was in the first 6 months of employment.[58]
[122] The six months is apparently a reference to advice Mr Costelloe received in March 2015 that he would not be eligible to make a claim to the Commission for constructive or unfair dismissal if he left his employment within the first six months. Even if Mr Costelloe had forgotten such advice he was alive to the link between constructive dismissal and unfair dismissal in April 2016 when he included it in his workers' compensation draft submission.
[123] This suggests that Mr Costelloe, on his own evidence, was at least aware that there was a possibility of dismissal in April 2016.
[124] On 2 December 2015 Mr Costelloe sent an email containing his resignation to his supervisor at Origin Energy. That email said:
[125] Mr Costelloe provided no more specific details as to the reason for his resignation in that email or subsequent to that date.
[126] In the lead up to his resignation Mr Costelloe had sought to find some resolution to the matters between himself and Origin Energy and had entered into discussions with respect to a mutual separation. Clearly, Mr Costelloe had flagged in some sense issues he was having at work and sought a means to exit Origin Energy.
[127] Post his resignation Mr Costelloe has sought to pursue his workers' compensation claim, that is, he has pursued the manifestation of the issues that arose in the workplace.
[128] It is not clear that Mr Costelloe actively sought to dispute the reason for his resignation (dismissal) beyond the workers compensation claim after he left Origin Energy.
[129] Mr Costelloe does not concede any prejudice to the employer caused by the delay in making his application.
[130] Origin Energy submits that it will be prejudiced by the substantial delay of over 12 months since Mr Costelloe resigned. It submits that the significant delay means that there is some presumption of prejudice to the employer. This presumption, with the real prejudice of the substantial delay, is a factor against granting the extension of time.
[131] Origin Energy provided no actual evidence of prejudice it says it suffers that could be tested. Whilst a lengthy delay might presume prejudice, some indication of that prejudice is required to be put before the Commission. It was not. For that reason I have not considered prejudice as a factor weighing either way in determining the matter.
[132] Mr Costelloe says that he had no choice but to resign his employment in December 2015. He says that this came about because of an extended course of action by the employer with respect to mismanagement of workloads, conflicts with his supervisors and an unwillingness of Origin Energy to deal properly with matters he raised.[60]
[133] Origin Energy submits that the material before the Commission in this matter in relation to the delays in making his application indicate that Mr Costelloe had other options available to him (for example the advice of Ms Thorley with respect to a general protections application not involving dismissal) to resignation. As such it will be difficult for Mr Costelloe to show that the employer engaged in a course of conduct that left him with no choice but to resign.
[134] Origin Energy submits that Mr Costelloe's application is without merit and that this should weigh against the grant of the extension of time.
[135] Prior to hearing the application for an extension of time I indicated to the parties that it was not necessary for me to decide if Mr Costelloe had been dismissed first. This advice was given as part of the process of dealing with the matter because, to make that decision, would in effect require a determination of the merits of the application for relief from unfair dismissal.
[136] This matter is not simple. There is no single particular conduct that Mr Costelloe says left him with no choice but to resign. Rather, there appears to have been a range of matters spread across an extended period of time. The merits of the application for unfair dismissal will be highly contested.
[137] It is not possible in these circumstances and on the material before me to draw any conclusion with respect to the merits of the application. It is, for this reason, a neutral matter in my consideration.
Fairness between Mr Costelloe and others in a similar position
[138] Mr Costelloe makes no submissions on this issue.
[139] Origin Energy submits that Mr Costelloe provides no evidence of other employees who resigned in the same circumstances as he did and who brought an application for relief from unfair dismissal within the required time period. It submits that this is not a consideration in the grant of an extension of time.
[140] There are no substantive submissions in respect to this matter. It is, therefore, a neutral consideration in reaching my decision.
[141] Whilst Mr Costelloe's confluence of illness, workers compensation, parenthood and illness of his mother, along with obtaining legal assistance prior to but not after his resignation are not, collectively, circumstances normally encountered, I am not convinced that these circumstances are exceptional such that I should consider the exercise of my discretion to grant an extension of time within which Mr Costelloe may make his application.
[142] I appreciate that Mr Costelloe believes he has a sound case against Origin Energy, and that he should be allowed to prosecute that case, but time limits have been imposed for making an application for sound public policy reasons. They must, except in exceptional circumstances, be met.
[143] My failure to find an acceptable reason for the entire period of the delay in making the application has weighed heavily against the granting of an extension of time. This has not been adequately countered by other matters I am required to consider. Taking into account all of my findings I am not satisfied that exceptional circumstances exist such that I could consider the grant of an extension of time to Mr Costelloe within which to make his application for unfair dismissal.
[144] Mr Costelloe's application for unfair dismissal was therefore not made within the requisite time period and is dismissed. An order[61] to this effect will be issued with this decision.
R. O'Neill of counsel for Origin Energy Ltd T/A Origin Energy.
[1] Joseph Costelloe v Origin Energy Resources Limited T/A Origin Energy [2017] FWC 214.
[2] Exhibit A2. Origin Energy provided a paginated copy of Mr Costelloe's submissions which was accepted as an accurate replication of the material he had filed.
[6] (1995) 67 IR 298 p.300.
[8] Under the FW Act at that time an application was required to be made within 14 days after the dismissal took effect.
[9] [2010] FWAFB 7251; [2010] 197 IR 403 paragraphs 16-18.
[10] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 paragraph 14.
[11] Clark v Ringwood Private Hospital (1997) 74 IR 413 p.419.
[12] [1996] IRCA 468 cited in Clark v Ringwood Private Hospital (1997) 74 IR 413.
[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[16] Kyvelos v Champion Socks Pty Limited Print T2421, [14].
[17] Whittle v Redi Milk Australia Pty Ltd [2016] FWC 3773, [38].
[18] Applicant closing submissions, 23 June 2017, paragraph 6(h).
[35] Costelloe final submissions in reply, 14 July 2017, paragraph 29(d).
[41] Letter dated 17 February 2018 from Dr Schouten to Dr Coha.
[53] Mr Costelloe's closing submissions, 23 June 2017, paragraph 54.
[56] Mr Costelloe's closing submissions, 23 June 2017, paragraph 20.
[60] This is not intended to be a full outline of the reasons Mr Costelloe gives for his resignation.
Printed by authority of the Commonwealth Government Printer
Joseph Costelloe
Origin Energy Ltd T/A Origin Energy [2017] FWC 3946
(1995) 67 IR 298
(1996) 186 CLR 541
(1984) 3 FCR 344
(2011) 203 IR 1
(1997) 74 IR 413