//
[88]
[2020] FWC 3999
General information, not legal advice.
Fair Work Commission
2020-07-30
Original judgment source is linked above.
s.394 - Unfair dismissal
Unfair dismissal application - when dismissal took effect - extension of time granted.
[1] The Fair Work Act 2009 (Cth) (Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]
[2] On 3 July 2020, I issued directions in relation to the filing of material in relation to the following questions:
When Ms Kay Stimson's dismissal took effect; and
If Ms Stimson's unfair dismissal application (Application) was filed more than 21 days after the dismissal took effect, whether an extension of time should be granted.
[3] Dr Michael Tawadrous (Respondent) contends that there has been no dismissal. As a result, it is necessary to determine whether there has been a dismissal, and if so, when the dismissal took effect and whether, if the Application was filed more than 21 days after her dismissal took effect, an extension of time should be granted.
[4] On 22 July 2020, a hearing, by telephone, was conducted in relation to these matters. Ms Stimson gave evidence, as did Dr Tawadrous.
[5] Ms Stimson claims that she was employed by Dr Tawadrous as a sonographer in a business known as Coffs Vascular. Dr Tawadrous denies that he employed Ms Stimson and says she was engaged as an independent contractor to work as a sonographer in Coffs Vascular, which is owned and operated by Tawadrous & Fanous Pty Ltd as trustee for the Coffs Vascular Service Trust.
[6] Ms Stimson ordinarily attended work five days per week at Coffs Vascular.
[7] On 25 March 2020, Ms Stimson became unwell and left work. Ms Stimson attempted to speak to Dr Tawadrous before leaving work on 25 March 2020, but was unable to do so.
[8] Later on 25 March 2020, Ms Stimson received a text message from Dr Tawadrous asking why patients had been cancelled without discussing the matter with him. Ms Stimson responded by email dated 26 March 2020 in the following terms:
Hi and yes I should have discussed this with you. My apologies for the inconvenience. I did try to catch you numerous times today between patients to do so.
I had an appointment after work and could not stay and wait. I did tell Dawn that I would email you. Two patients cancelled. One patient was visibly ill and unable to be scanned. One patient did not turn up.
I haven't cancelled any others pending discussion with you.
I am unable to work for the next few days and apologise for the inconvenience.
I am available per phone if you have the time tomorrow. to discuss it.
[9] Ms Stimson did not perform any work for Dr Tawadrous after 25 March 2020.
[10] At 8:42pm on 29 March 2020, Ms Stimson sent an email to Dr Tawadrous in relation to her concerns about the impact of COVID-19, particularly in relation to the safety of Ms Stimson and Dr Tawadrous and their patients at Coffs Vascular. The email was in the following terms:
Hi. In response to the government directives and the current pandemic I have researched the appropriate management for prevention of perpetuating this virus and put this forward for our benefit. I am happy to discuss this at greater depth if you would like to do this.
My concerns are for our safety and the safety of our patients at Coffs Vascular.
Personally, I would be horrified if I had contributed to transferring infection to patient within our practice. Our patients are within the "at-risk" group as am I.
For me as a practitioner within our facility it is my responsibility under the Health practitioner's code of conduct to bring to your attention my concerns regarding the infection control within our facility under the current climate of the corona virus. It is also my obligation to recognize deficits and take corrective action wherever possible.
As you are aware the government has restrictions and recommendations for private health practices.
After reading the guidelines set out by APRAH, NSW health, NSW government and ASUM guidelines we don't currently meet those standards.
How to improve, comply with standards and ensure safety? How do we take active measures to prevent the spread of the virus within our facility?
An example of this improve this for the patients and our benefit we would need to
· Remove the fabric chairs and provide hard surface chairs within the waiting area
· Adhere to cleaning recommendations with the recommended cleaning solutions.
· Triage (comprehensively triage) of patients prior to their appointment per phone and on arrival.
· Include social distancing of 1.5 meters and the 4 square meter rule. (some surgeries have the seats set well apart) Limit patients within the waiting area.
· Attend to cleaning of the areas of contact as per the guidelines with appropriate cleaning solutions. (NSW HEALTH)
· Wear and utilize personal protective equipment (ASUM guidelines)
Patients are with me for 30 minutes and greater and therefore I would be outside the restrictions and recommendations for safety.
I do need to comply with the recommendations. Most of the required items for PPE are available on Amazon and Ebay. Including hand sanitizer, disposable gloves gowns and masks.
I am happy to discuss these things further to assist in ensuring our safety.
[11] At 9:04pm on 29 March 2020, Ms Stimson sent a further email to Dr Tawadrous advising him that she needed to take a further period of leave because she was ill and she needed to follow the guidelines for self-isolation in case she had COVID-19. Dr Tawadrous did not respond to that email.
[12] On 11 April 2020, Ms Stimson sent an email to Dr Tawadrous in the following terms:
I'm not sure if you are aware that you overpaid me $136 with payment of the last invoice.
I could order some supplies with it if you are OK with that or deduct it from the next invoice.
I am keen to return to work and can return with supplies.
After my research and discussion with other sonographers, they are still scanning with gown masks and cleaning between patients to keep the environment safe from the virus. Their reception staff within other medical practices are screening the patients by taking their temperature and asking the series of questions to ascertain the risk factors or possibility of exposure. to the virus.
I didn't get a response to my email concerning the infection control guidelines and am hoping that I can get some feedback. what would you like me to do regarding this?
I have some files to upload to genie and should complete that this week.
[13] On 12 April 2020, Dr Tawadrous responded to Ms Stimson as follows:
Given the current situation with COVID 19, and your concerns, I am reconsidering the viability of the vascular lab as it currently stands. At this stage, please continue to stay home and stay safe.
[14] On 6 May 2020, Ms Stimson visited the premises of Coffs Vascular to speak with Dr Tawadrous. Ms Stimson was informed by the receptionist that another sonographer had been scanning in the room for two weeks or more. Ms Stimson was unable to speak to Dr Tawadrous during her visit to the premises of Coffs Vascular. She called and left a message for Dr Tawadrous to return her call, but did not receive a return call.
[15] The sonographer Dr Tawadrous has engaged to work at Coffs Vascular since April 2020 has been undertaking the sonography work which Ms Stimson undertook at that practice up to 25 March 2020. In addition, the new sonographer is doing other work which Ms Stimson was not qualified or experienced to undertake. Further, due to COVID-19, the amount of sonography work required to be done at Coffs Vascular diminished in April 2020 and has not yet returned to pre-COVID-19 levels.
[16] On 8 May 2020, Ms Stimson sent an email to Dr Tawadrous in the following terms:
I did try to call you regarding the vascular lab. I called into the office yesterday to try to catch you and apparently Janelle Vignes is scanning now in the vascular lab. Can you please clarify my position there?
I have been looking for part-time sonography work in view of the uncertainty and your previous email. Is it possible for you to referee for me?
Please contact me if you have any concerns. Thank you.
[17] On 12 May 2020, Dr Tawadrous responded to Ms Stimson as follows:
I condensed all the US scans to 2 days a week. We will try to add extra days and let you know.
Indeed You may put me down as a reference; please do...
[18] On about 28 May 2020, Ms Stimson obtained advice from her union, the Health Services Union. Ms Stimson was advised that she had been dismissed and her dismissal took effect on 28 May 2020.
[19] On about 28 May 2020, Ms Stimson spoke to a person from the Fair Work Ombudsman by telephone. Ms Stimson informed the person from the Fair Work Ombudsman that the last communication she received from Dr Tawadrous was on 12 May 2020. Ms Stimson asked the person from the Fair Work Ombudsman if there was a deadline for making an unfair dismissal claim. Although Ms Stimson does not have a good recollection of her conversation with the person from the Fair Work Ombudsman, I accept Ms Stimson's evidence that she was told by the person from the Fair Work Ombudsman that there was a 21 day time period for her to make an unfair dismissal claim and she could lodge her unfair dismissal claim on 3 June 2020.
[20] Ms Stimson lodged her unfair dismissal application in the Commission on 3 June 2020. The application was signed by Ms Stimson and dated 27 May 2020. I accept Ms Stimson's evidence that she relied, in part, on the information from the Fair Work Ombudsman in lodging her unfair dismissal application in the Commission on 3 June 2020
[21] Ms Stimson gave evidence in her witness statement dated 10 July 2020 to the effect that it was on 28 May 2020 that she formed the view that she had been dismissed by Dr Tawadrous. Ms Stimson formed that view because 28 May 2020 was the date on which she realised that Dr Tawadrous was no longer going to be providing her with work or complying with what she believed was her contract of employment. Ms Stimson also gave evidence in her witness statement dated 10 July 2020 to the effect that, after speaking to the Fair Work Ombudsman and the Health Services Union on 28 May 2020, she formed the view that Dr Tawadrous did not intend to honour any employment obligations towards her because:
Dr Tawadrous was not providing her with any work;
another sonographer was performing Ms Stimson's role; and
Ms Stimson had provided Dr Tawadrous with invoices for the months of September 2019 and March 2020, which Dr Tawadrous had not paid. Ms Stimson says the amount owing under these invoices was $12,000.
[22] In her oral evidence, Ms Stimson accepted that she did not rely on the non-payment of her September 2019 and March 2020 invoices as part of the reason why she believed she was dismissed because she did not provide those invoices to Dr Tawadrous for payment until 5 June 2020.
[23] Ms Stimson also gave oral evidence that she assumed her date of dismissal was 12 May 2020 because that was the date of her last communication from Dr Tawadrous. On the basis of that assumption and after speaking with the Fair Work Ombudsman, Ms Stimson used a calendar to try to work out for herself the expiry of the 21 day period after 12 May 2020. Ms Stimson believed it was appropriate to look at the day after the 21 day period, with the result that she calculated the expiry date of that period to be 3 June 2020. Ms Stimson now understands that was an erroneous approach. It appears as though the person from the Fair Work Ombudsman to whom Ms Stimson spoke made the same mistake in calculating the expiry of the 21 day period to be 3 June 2020, rather than 2 June 2020.
[24] I find that in May and early June 2020 Ms Stimson was confused about whether she had been dismissed, when any dismissal took effect, and when the 21 day period for filing an unfair dismissal application expired. That confusion arose because (a) there was no clear communication from Dr Tawadrous on the topic of dismissal (because Dr Tawadrous did not believe he had dismissed Ms Stimson), (b) the advice Ms Stimson received from the HSU that her date of dismissal was 28 May 2020 was different to the information she received from the Fair Work Ombudsman to the effect that she had until 3 June 2020 to file her unfair dismissal application, and (c) both the Fair Work Ombudsman and Ms Stimson made an error, likely the same error, in calculating the expiry of the 21 day period on the assumption that the date of dismissal was 12 May 2020.
[25] The question of when a person has been dismissed is governed by s 386 of the Act:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."
[26] A dismissal takes effect when the employment relationship has ended.[3] The termination of the employment relationship is a different concept from the termination of an employment contract.[4]
[27] The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment.[5]
[28] The unfair dismissal regime in Part 3-2 of the Act applies to "national system employees" and "national system employers".[6] National system employees are employees of national system employers, being employers which bear particular characteristics such as to make them amenable to particular heads of legislative power of the Commonwealth in s 51 of the Constitution.[7] Beyond this, the Act does not seek to establish a statutory definition of what constitutes an employee. National system employees for the purposes of Part 3-2 of the Act are parties to an employment relationship at law.[8]
[29] Because the question of whether an employment relationship continues to exist is a question of fact,[9] it is necessary to consider all the relevant circumstances to determine whether there has been a communication of a dismissal by words or conduct. The range of facts or factors which may need to be examined to answer the question of whether an employment relationship has ceased to exist by reason of the communication of a dismissal by words or conduct will be determined by the circumstances of a particular case, and may include, without limitation, whether the employee is being paid a wage or other benefits or entitlements, whether the employee is attending or performing work for the employer, whether the employee is being rostered to work or offered work, whether, in the case of a business employing casuals, the employer is rostering other employees to do work in the same role as the applicant in a particular case, whether the employer is exercising, or has the ability to exercise, control over the execution of work by the employee,[10] whether either party has communicated to the other party a decision to terminate the relationship, and the terms of the employment contract.
[30] The question of whether an employment relationship has ceased to exist does not depend upon the parties' subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.[11]
[31] There is no suggestion in this case that Ms Stimson was dismissed within the meaning of s 386(1)(b) of the Act. Ms Stimson contends that her employment with Dr Tawadrous has been terminated on her employer's initiative.
[32] The expression "termination at the initiative of the employer" is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[12] There must be action by the employer that either intends to bring the relationship to an end or has that probable result.[13]
[33] In Ayub v NSW Trains (Ayub),[14] a Full Bench of the Commission considered when a dismissal takes effect under s 394(2) of the Act (references omitted):
"[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated...
[35] We see no reason to depart from the above line of authority insofar as it is consistent with the general principle at common law that a dismissal may not take effect prior to it being communicated to the employee...
[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of "exceptional circumstances" required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application.
[41] We therefore do not consider that there is any proper exception to the general proposition established by the authorities under the WR Act and the FW Act that a dismissal cannot take effect for the purposes of those statutes before it is communicated to the employee. There is little support for the existence of any such exception which may be derived from the common law. While it is not inconceivable, as earlier stated, that a contract of employment might expressly provide that it may be terminated by the employer on notice to the employee effective from a time prior to receipt of the notice by the employee, we do not consider for the reasons we have stated that any such contract could be treated as determining the date of effect of a dismissal for the purposes of s.394(2)(a). Termination of employment in accordance with such a provision would be in contravention of s.117(1). Statutory industrial instruments such as modern awards and enterprise agreements could also conceivably allow a date of dismissal which is effectively retrospective (although we are not aware of any which actually do so), but again this could not be treated as determinative of the operation of s.394(2)(a) in a particular case such as to deprive a dismissed employee of the full time period allowed by the provision. In relation to statutory provisions governing public sector employment, we have already noted what was said by the Full Bench in ATO v Wilson about the Public Service Act 1999. We do not consider that such legislation could establish an effectively retrospective date of effect of a dismissal for the purpose of s.394(2)(a) of the FW Act unless that was made clear by express words or by necessary implication. There is no such provision in the Public Service Act as it currently stands.
[42] We likewise consider that the mere delivery of a document to an employee's usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document. That is, we do not consider that s.394(2)(a) requires the strict application of a "postal delivery rule" where the employee has a legitimate explanation for not being able to read the document immediately upon delivery. The circumstances in which this may be the case are undoubtedly manifold, but for example if an employee is on an approved period of annual leave and is holidaying away from home when a dismissal letter is delivered, there is no reason to conclude that the date of dismissal is the date of delivery and not when the employee returns home and first has a reasonable opportunity to read the letter.
[48] Nonetheless the critical point made in Gisda Cyf that the shortness of the period allowed to lodge a claim must inform the way in which the time-limiting provision is interpreted is valid in the context of the FW Act. Indeed the proposition is a fortiori given that time period allowed by the FW Act is much shorter and the circumstances in which an extension of time may be obtained are more constrained. An interpretation of s.394(2)(a) which would have the practical effect of reducing further what is already a very limited opportunity to lodge an unfair dismissal claim would be rejected if another is reasonably available. Our conclusion is that, in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot not take effect for the purposes of Pt.3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.
[49] In relation to a dismissal with notice, drawing on the common law principles earlier identified, the dismissal would take effect upon the date of the expiration of the specified period of notice. It is necessary however for that date to be clearly identifiable. This would equally apply to a conditional notice of termination. In the case of a dismissal with a payment in lieu of notice, the dismissal would need to be communicated to the employee in such a way that the employee knows, or at least has a reasonable chance to find out, that he or she has been dismissed. There may also be an additional requirement that the payment in lieu of notice has actually been received by the employee.
[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee's usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal."
[34] Ms Stimson submits that her employment was terminated at the initiative of Dr Tawadrous by reason of his conduct in not providing her with any work after 25 March 2020, employing another sonographer to undertake the work that Ms Stimson had been performing for Dr Tawadrous up to 25 March 2020, and Dr Tawadrous's email dated 12 May 2020.
[35] In the alternative, Ms Stimson contends that Dr Tawadrous repudiated her employment contract by evincing an intention to no longer be bound by the contract of employment and engaging in serious breaches of the contract of employment. Ms Stimson submits that she accepted the repudiation by lodging her unfair dismissal application in the Commission on 3 June 2020.
[36] Dr Tawadrous contends that he did not repudiate any contract with Ms Stimson. Dr Tawadrous also contends that although his relationship with Ms Stimson, whether it be an employment relationship or a relationship of principal and independent contractor, came to an end after Ms Stimson filed her unfair dismissal application in the Commission on 3 June 2020, he did not dismiss Ms Stimson.
[37] Ms Stimson worked in Dr Tawadrous's practice 5 days per week in the period from when the new practice opened in January 2020 until 25 March 2020. Prior to January 2020, Ms Stimson had undertaken regular work for Dr Tawadrous in a different medical practice in Coffs Harbour.
[38] On 25 March 2020, Ms Stimson became ill and needed to leave work. She did so and then communicated by email with Dr Tawadrous about her concerns regarding compliance with COVID-19 requirements at Coffs Vascular.
[39] On 11 April 2020, Ms Stimson informed Dr Tawadrous by email that she was keen to return to work. On 12 April 2020, Dr Tawadrous told Ms Stimson that he was "reconsidering the viability of the vascular lab as it currently stands. At this stage, please continue to stay home and stay safe."
[40] On 6 May 2020, Ms Stimson visited the premises of Coffs Vascular and became aware that another sonographer was doing her work. On 8 May 2020, Ms Stimson asked Dr Tawadrous to "clarify my position there". Ms Stimson also asked Dr Tawadrous to act as a referee for her because she was looking for "part-time sonography work in view of the uncertainty and your previous email".
[41] In his email reply dated 12 May 2020, Dr Tawdrous did not make any clear statement about whether Ms Stimson was still engaged to work at Coffs Vascular. Instead, Dr Tawadrous informed Ms Stimson that he had "condensed all the US scans to 2 days a week. We will try to add extra days and let you know". Dr Tawadrous also acceded to Ms Stimson's request to use him as a referee.
[42] The clear inference arising from Dr Tawadrous's email response of 12 May 2020 was that the current level of demand for a sonographer at Coffs Vascular was for two days a week and Ms Stimson was not required to undertake that work because another sonographer was performing it. Further, although there was a possibility that Ms Stimson would be offered further work in the future at Coffs Vascular, that was contingent on "extra days" of work for a sonographer being required.
[43] Ms Stimson was not offered, and did not perform, any work for Dr Tawadrous at Coffs Vascular or elsewhere at any time after 25 March 2020, nor was Ms Stimson paid by Dr Tawadrous in respect of the period after 25 March 2020.
[44] Having regard to the facts and circumstances summarised in the previous seven paragraphs, I find that Ms Stimson's working relationship with Dr Tawadrous came to an end on 12 May 2020. I am satisfied that a reasonable person in the position of Ms Stimson would have formed the view upon reading Dr Tawadrous's 12 May 2020 email that her working relationship with Dr Tawadrous had come to an end. There was a chance on 12 May 2020 that a new working relationship between Ms Stimson and Dr Tawadrous may have been established in the future, but that was nothing more than a contingent possibility.
[45] Further, I am satisfied that Ms Stimson was dismissed within the meaning of s 386(1)(a) of the Act. It is clear that Ms Stimson did not agree to the termination of her engagement with Dr Tawadrous. It was the conduct of Dr Tawadrous, as summarised in paragraphs [37] to [43] above, which was the principal contributing factor which resulted, directly or consequentially, in the termination of Ms Stimson's engagement with Dr Tawadrous. Although I am satisfied that Dr Tawadrous did not subjectively intend to bring his working relationship with Ms Stimson to an end, I am satisfied that his conduct, as summarised in paragraphs [37] to [43] above, had that probable result. It is unrealistic to think that there would be a result other than termination of a working relationship when a person who has been working in a business five days per week is replaced by a new worker and effectively informed that they will not have work made available to them in the future unless work increases.
[46] I find that Ms Stimson's dismissal took effect on 12 May 2020. I am satisfied that is the date on which the dismissal was communicated to Ms Stimson. The communication took place by reason of a combination of the content of Dr Tawadrous's email dated 12 May 2020 and his conduct as summarised in paragraphs [37] to [43] above.
[47] Because I have found that Ms Stimson was dismissed on 12 May 2020, there is no need to consider Ms Stimson's alternative argument that her dismissal took effect on 3 June 2020 as a consequence of her acceptance of Dr Tawadrous's repudiation of her employment contract.
[48] The 21 day period for Ms Stimson to lodge her unfair dismissal application in the Commission expired on 2 June 2020. Her application was lodged on 3 June 2020. It was therefore one day late.
[49] I will now consider whether to exercise my discretion to extend time for Ms Stimson's unfair dismissal application to be made.
[50] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are "exceptional circumstances", taking into account the following six criteria:
(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."
[51] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant.[15]
[52] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group.[16] In that matter the Full Bench held the following (at [13]) in relation to "exceptional circumstances":
"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."
[53] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[17] In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,[18] the Full Bench explained (at [31]) the correct approach by reference to the following example:
"For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter."
[54] An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s 394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[19]
"[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
[44] As mentioned earlier, the 'reasons for the delay' is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances."
[55] As to acceptable explanations for a delay or part thereof, ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance.[20]
[56] The reasons for the one day delay in filing the application were (a) the fact that Dr Tawadrous did not make any clear statement to Ms Stimson about whether or not she was still engaged by him, which, in part, gave rise to confusion in Ms Stimson's mind, (b) incorrect information from the Fair Work Ombudsman that Ms Stimson had until 3 June 2020 to lodge her unfair dismissal application in the Commission, (c) conflicting advice from the Fair Work Ombudsman that the application had to be filed by 3 June 2020 and the HSU to the effect that the dismissal took effect on 28 May 2020, which contributed to Ms Stimson's confusion, and (d) a miscalculation by Ms Stimson that the 21 day period expired on 3 June 2020, compounding the error made by the Fair Work Ombudsman.
[57] It is also relevant that Ms Stimson did not sit on her hands and do nothing after receiving Dr Tawadrous's email of 12 May 2020. In late May 2020, Ms Stimson sought advice from the HSU and the Fair Work Ombudsman about her dismissal. She also used a calendar to attempt to calculate the 21 day period herself. She did so erroneously, but her attempt to check the date given to her by the Fair Work Ombudsman was the right course of action for her to have taken.
[58] I consider the matters to which I have referred, collectively, to be a reasonable explanation for the one day delay in filing the application. The confusion created by the lack of clarity in the communications from Dr Tawadrous to Ms Stimson meant that Ms Stimson needed to take reasonable steps to try to determine whether she had been dismissed, and if so, when the 21 day period expired. Ms Stimson took such steps in a timely manner. She also relied on erroneous information provided to her by the Fair Work Ombudsman.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
[59] Ms Stimson was aware of the 12 May 2020 email on the day it was sent to her. Although she was uncertain as to whether it constituted notice of her dismissal, she assumed that it did. I am therefore satisfied that Ms Stimson had the full 21 day period to lodge her unfair dismissal application. This is a neutral consideration.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
[60] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[21]
[61] I accept that Ms Stimson took steps in late May 2020 to obtain information and advice from the HSU and the Fair Work Ombudsman in relation to her dismissal. These steps constitute 'action to dispute the dismissal' and weigh, to a small extent, in favour of Ms Stimson. Even if this factor had been a neutral consideration, it would not have altered my finding of exceptional circumstances or decision to exercise my discretion to extend time for the Application to be filed.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
[62] Prejudice to the employer will weigh against granting an extension of time.[22] However, the "mere absence of prejudice to the employer is an insufficient basis to grant an extension of time".[23]
[63] A long delay gives rise "to a general presumption of prejudice".[24]
[64] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.[25] Dr Tawadrous did not adduce any evidence on the issue of prejudice.
[65] Noting that the delay was one day, I am satisfied that there would be no greater prejudice to Dr Tawadrous caused by the application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to Dr Tawadrous is a neutral consideration.
[66] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. There are real issues in this case as to whether Ms Stimson was employed by Dr Tawadrous, and if so, whether she was employed for the minimum employment period. Those questions are complex having regard to the lack of clarity around the working arrangements pursuant to which Ms Stimson performed work for Dr Tawadrous at Coffs Vascular and in the previous practice. Further evidence needs to be adduced in relation to those issues in order to be able to properly assess Ms Stimson's prospects of success on those important jurisdictional questions. In all the circumstances, I consider the merits of the application to be a neutral consideration.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
[67] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
[68] Having taken into account each of the factors referred to in s 394(3)(a) to (f) of the Act, I am satisfied that there are exceptional circumstances. In making this evaluative assessment, I am particularly (but not solely) influenced by the fact that Ms Stimson had a reasonable explanation for the one day delay in lodging her Application and the delay arose as a result of unusual circumstances.
[69] The exceptional circumstances threshold having been met, I am also satisfied, for the same reasons, that it is appropriate to exercise my discretion to extend time.
[70] Accordingly, the application for an extension of time is granted. The jurisdictional objection is dismissed. I will issue an order extending time to 3 June 2020 [PR721412].
[71] The matter will be shortly listed for directions, by telephone, to discuss the future conduct of the matter. At that directions hearing, I will ask the parties if they are willing to participate in conciliation in an attempt to resolve the matter by an agreement, noting that to date the parties have not participated in a conciliation conference.
Mr Danalis, Industrial Officer of the HSU, for the applicant
Ms Tueno, of Counsel, with Mr Lo, Solicitor, for the respondent
[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6 - where a period of time 'is expressed to begin after a specified day' the period 'does not include that day')
[3] Siagian v Sanel Pty Ltd [1994] IRCA 2 (Wilcox CJ); Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [21]
[4] Visscher v Giudice and Others [2009] HCA 34; (2009) 258 ALR 651 at [53] to [55] per Heydon, Crennan, Keifel and Bell JJ; Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [21]- [22]; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [31]- [50]
[5] Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 312 ALR 356 at 357 [1]
[7] Ayub v NSW Trains [2016] FWCFB 5500 at [25]
[9] Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 428; Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [27]
[10] Humberstone v Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389 at 404; Stevens v Brodribb Sawmilling Co. Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 24 & 35; Forstaff v Chief Commissioner of State Revenue [2004] NSWSC 573; (2004) 144 IR 1 at [91]
[11] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [45], applying Koutalis v Pollett [2015] FCA 1165; 235 FCR 370 at [43]
[12] Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75(2)]
[13] Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 at [24]
[15] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]
[17] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31]
[20] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14]
[21] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[24] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 556
Printed by authority of the Commonwealth Government Printer
Kay Stimson
Dr Michael Tawadrous [2020] FWC 3999
(2009) 258 ALR 651
(2014) 312 ALR 356
(1995) 185 CLR 410
(1949) 79 CLR 389
(1986) 160 CLR 16
(2011) 203 IR 1
(1995) 67 IR 298
(2004) 144 IR 1
(1996) 186 CLR 541