Fair Work Act 2009

s.394 - Unfair dismissal

Teddy Bear Cottage Early Childhood Services Pty Ltd

Unfair dismissal application filed out of time - exceptional circumstance - explanation for delay - poor mental health - other legal proceedings - weak prospects of success - COVID 19 - refusal to comply with public health order vaccination requirements - childcare centre - application dismissed.

• [1] Ms Kayla Rosso's employment ceased in mid-September 2021. Ms Rosso says she was dismissed and challenges the fairness of her dismissal. Section 394(1) of the Fair Work Act 2009 (Cth) required Ms Rosso to make her application for an unfair dismissal remedy within 21 days after the dismissal took effect, being early October 2021. Ms Rosso did not make her application until 16 November 2021 and therefore requires an extension of time.

• [2] The Commission only has power to grant an extension of time if there are exceptional circumstances. For the reasons that follow I am not able to find that there were exceptional circumstances and must therefore dismiss Ms Rosso's application.

• [3] Ms Rosso was employed by Warragamba Silverdale Neighbourhood Centre t/as Teddy Bear Cottage ("the Cottage") as a Childcare Worker. Ms Rosso started working for the Cottage on a casual basis in September 2020. She stopped working in January 2021 for a period of maternity leave and when she returned to work in May 2021 she was engaged on a permanent basis. Neither party provided precise evidence about when each period of employment started or finished, suffice to say there is some considerable uncertainty about whether Ms Rosso served the minimum employment period required (per s.383 of the Fair Work Act 2009 (Cth)).

• [4] By September 2021 public health orders applied to the Cottage and required all staff in childcare centres to be fully vaccinated against COVID-19 by 8 November 2021.

• [5] The timing is not exactly clear from the communication between the parties but by 13 September 2021 Ms Rosso had (1) formally advised the Cottage that she was not prepared to be vaccinated, and (2) contracted Covid 19 and was in isolation.

• [6] On 13 September 2021 there was an email exchange between Ms Rosso and Ms Avery, who is the Children's Services Manager for the Cottage. At 11:22am Ms Avery sent an email that included the following:

... Also please see attached the letter regarding the mandatory double jab by November 8th 2021, please let me know if you intend to get the jab or not by the end of the week, as if you will not be getting it I will need to look for staff as most of the kids have come back or will be coming back in the next few weeks. I respect your decision either way and no that I wish that I didn't have to give this letter to staff and send emails like this, I am pro-choice but the department of education have tied our hands. let me know when you can about either, hope you are all well and safe

• [7] An hour later Ms Rosso sent a reply to Ms Avery that included the following:

"In regards to the jab I'm not comfortable getting it at this current point even going through what I'm going through now mentally and with Covid.

If you could pack up all my things and I'll get it after I stay home the 2 weeks.

• [8] Ms Avery and the Cottage regarded Ms Rosso's email as a resignation of her employment, particularly the reference to letting her go and to packing up her things.

• [9] During the hearing there were references to another email or emails sent on 16 September 2021. I cannot have any regard to any such emails because they were not in evidence.

• [10] Some of Ms Rosso's children attend the Cottage and it appears that at least one child attended the Cottage after they had contracted Covid. As a result of Ms Rosso and her child contracting Covid the whole centre was required to close for a period. Some staff members at the Cottage took to Facebook to express their dissatisfaction and hostility towards Ms Rosso.

• [11] In the weeks after her employment ceased Ms Rosso made a complaint to the NSW Department of Education about operational matters, and also made a complaint to SafeWork NSW in relation to what she regarded to be bullying by her former co-workers.

• [12] Ms Rosso's explanation for the delay is summed up in the following submission. I have not reproduced all of the submission because it contains specific personal information that I have taken into account but do not think is necessary to reproduce in this public document:

"My extenuating circumstances for not filing within the 21 day period included the fact that I was unaware of the existence of the Fair Work Commission including its timetables; I had had no legal advice thinking I was unable to afford it; I had 5 children under the age of 8 in my care, three of whom also had Covid; I am effectively a single parent as my children's father has been residing ... for approximately 18 months... my children's paternal grandfather was evicted from my home ... This has resulted in numerous occasions where police have attended at my property ... throughout my period of illness with Covid I was subjected to harassment and intimidation from work colleagues via social media causing me distress and making me reluctant to pursue the matter for fear of reprisal or recourse against my children."

• [13] Some of the matters referred to by Ms Rosso required her to participate in legal proceedings, including legal proceedings that were active after her employment ceased and prior to the lodgement of her unfair dismissal claim.

• [14] The Cottage led evidence from Ms Rosso's Facebook account which it suggests shows that Ms Rosso was active in the community (after her Covid isolation) in the period prior to the lodgement of the unfair dismissal claim.

Section 394 - Exceptional Circumstances

• [15] An unfair dismissal remedy must be made within 21 days after the dismissal took effect (per s.394(2)), or within such further period as the Commission allows (per s.394(3)).

• [16] The exceptional circumstances requirement establishes a 'high hurdle' for applicants to overcome.[1]

• [17] The Full Bench in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [2011] FWAFB 975 described exceptional circumstances as follows:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[15] A finding that there are "exceptional circumstances", taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when "exceptional circumstances" are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended."

• [18] Section 394(3) specifically requires the Commission to take into account the following matters when considering whether there are exceptional circumstances, viz:

(a) the reason for the delay; and
>
> (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
>
> (e) the merits of the application; and
>
> (f) fairness as between the person and other persons in a similar position."

• [19] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156, [2018] FWCFB 901 the Full Bench found that:

a) generally the Commission must consider all of the relevant circumstances because factors considered in combination might support a finding of exceptional circumstances even though no one particular factor is exceptional (at [17] and [38]);
>
> b) the obligation to "take into account" the matters set out in s.394(3) means that each of the listed matters must be treated as a matter of significance in the decision-making process insofar as it is relevant (at [19]);
>
> c) no one factor needs to be exceptional in order to enliven the discretion to extend time (at [38]); and
>
> d) individual matters might not be particularly significant when viewed in isolation, but the Commission must consider the matters collectively and ask whether they disclose exceptional circumstances (at [39]).

• [20] I am required to take into account "the reason for the delay".[2] The test invariably applied is whether an applicant has a 'credible or reasonable' explanation for the delay. The reasonableness of an explanation is not measured in a vacuum: firstly it must be assessed as part of an inquiry into whether exceptional circumstances exist, and then secondly in deciding whether the Commission should exercise its discretion to grant the extension.

• [21] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay.[3] That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).

• [22] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good, credible explanations for delay do not receive an extension of time because they cannot firstly establish that exceptional circumstances exist.

• [23] The Commission must consider the reason for the delay over the whole of the period between the dismissal and the commencement of the proceedings, rather than just the period after time limit has expired.[4]

• [24] Ms Rosso was not working in September 2021 because she had asked for and was granted a period of "mental health leave". Ms Rosso says her poor state of mental health continued after her employment ceased. Given the nature of some of the personal matters Ms Rosso was dealing with, it is quite understandable that her mental health was poor.

• [25] Sometimes an applicant's medical condition can be so significant that it affects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant's mental illness and in other cases the Commission has not found exceptional circumstances.

• [26] In Roberts v Westech IT Solutions Pty Ltd.[5] Senior Deputy President O'Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to Mr Robert's depression. Mr Roberts provided advice from his doctor that included details of Mr Robert's clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter Mr Roberts also said he had been "given the run around by the phone system which took some time to navigate around", the effect of which appears to have been made worse by his mental health.

• [27] Similarly in Beard v Valley Industries Limited[6] Deputy President Saunders found that there were exceptional circumstances "as a result of the significant deterioration in his mental state shortly after his dismissal, [Mr Beard] was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal." In that matter Mr Beard's claim was supported by medical evidence from his GP, including evidence that two different medications prescribed to Mr Beard had negative side effects. The Deputy President noted that "after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission".

• [28] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person's life, but that such responses and consequences are not unusual.[7]

• [29] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting[8] the Full Bench accepted a finding at first instance that Mr Underwood had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter Mr Underwood led evidence from his treating doctor however "[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period." The Full Bench affirmed the finding at first instance that the medical evidence "did not positively demonstrate that the Appellant's depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame" and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O'Callaghan in Roberts but found "the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context."[9]

• [30] In Merhi v Commonwealth of Australia[10] the Full Bench assessed the applicant's evidence from her treating psychologist concerning her "major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder" primarily by reference to the psychologist's assessment of Ms Merhi's capacity to act. The Full Bench endorsed the finding at first instance that on the evidence "the appellant's mental state did not prevent her capacity to engage in day to day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay."[11]

• [31] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that it is very difficult for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit without proper and specific medical evidence.

• [32] In summary the following principles apply:

(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
>
> (ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the Applicant's capacity to lodge the application within the statutory time limit (per Roberts, Beard and Underwood);
>
> (iii) the evidence should positively demonstrate that the Applicant's depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Beard, Underwood and Merhi); and
>
> (iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).

• [33] Ms Rosso provided no medical evidence to support her reliance on her poor state of mental health. I accept that Ms Rosso was dealing with many stressful matters but I think it is significant that during the intervening period Ms Rosso was participating in other legal proceedings and, more significantly, was able to make a complaint to the regulator about childcare matters, and was able to make a complaint to the WHS regulator about her grievances against the Cottage.

• [34] On the evidence before me, and in light of the approach taken by the Commission in the cases referred to above, I cannot find that Ms Rosso's poor mental state was an exceptional circumstance.

• [35] Ms Rosso says that for a period of time she was not aware of her right to make an application. It is well-established that not being aware of the law is not an exceptional circumstance.[12]

• [36] Ms Rosso's claim was filed more than six weeks late, which is a significant length of time measured against the 21-day time limit. I am sympathetic about the other matters that Ms Rosso was dealing with over this period, but on the state of the evidence I cannot find that there were exceptional circumstances that meant that Ms Rosso was not able to commence her unfair dismissal proceeding far earlier.

Whether the person first became aware of the dismissal after it had taken effect

• [37] I am also required to take into account "whether [Ms Rosso] first became aware of the dismissal after it had taken effect".[13]

• [38] I accept the somewhat obvious proposition that exceptional circumstances might exist when an applicant is not aware that a dismissal has taken effect until a later date. On the evidence before me I do not accept that exceptional circumstances of this kind arose.

• [39] Ms Rosso's email of 13 September 2021, which the Cottage took to be her resignation, made arrangements for Ms Rosso to collect her things from the workplace.

• [40] In taking into account "any action taken by the person to dispute the dismissal".[14] Ms Rosso took other steps against the Cottage with other regulators but took no steps to dispute her dismissal prior to making her unfair dismissal remedy application.

• [41] This is not a factor that supports the existence of any exceptional circumstances nor the exercising of the Commission's discretion to grant an extension of time.

• [42] I must consider the "prejudice to the employer (including prejudice caused by the delay)."[15]

• [43] The Cottage led no evidence of any specific prejudice suffered because of the delay.

• [44] The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

• [45] Section 394(3)(e) requires that I take into account "the merits of the application" when considering whether there are exceptional circumstances and the extension of time more generally.

• [46] Little evidence was led by the parties and it is not possible or appropriate to make any firm or detailed assessment of the merits that at this juncture. There are sound reasons why the Commission should not receive evidence and make factual findings on contested issues at this stage of the proceedings: most notably because parties should not have to present their evidentiary case twice.[16]

• [47] In this context I am concerned that Ms Rosso's claim has a number of significant problems. As referred to above, it is not apparent that Ms Rosso has completed the minimum employment period of six months. I do not need to determine the question, but Ms Rosso has not established that her claim is within jurisdiction.

• [48] It is also not clear that Ms Rosso was dismissed from her employment. On the face of her email of 13 September 2021, reproduced above, Ms Rosso advised her employer that she did not meet the requirements of the public health orders and made arrangements to finalise her employment. On one view, the public health orders imposed obligations on both parties in relation to attendance at the workplace, and Ms Rosso (albeit in answer to a query from the Cottage) initiated the cessation of the employment by advising that she did not meet the requirements and by referring to ending her employment. Ultimately I do not need to determine this question either, but take into account the fact that Ms Rosso's claim that she was dismissed is problematic.

• [49] For these reasons my present view is that Ms Rosso's case is very weak and does not point towards a finding that there are exceptional circumstances.

Fairness as between the person and other persons in a similar position

• [50] Finally I must take into account "fairness as between the person and other persons in a similar position."[17] This consideration seems to have been derived from a series of cases in the Federal Court and the former Industrial Relations Court of Australia.[18]

• [51] In certain circumstances there may be people in a "similar position" to Ms Rosso, such as other employees dismissed by the same employer at the same time. Under s.394(3)(f) the Commission can consider factors beyond the immediate circumstances of the parties to ensure that there is fairness in the treatment of Ms Rosso's claim compared to the claims of others in a similar position.

• [52] I am not aware of any persons or cases that are relevant to the question of fairness as between Ms Rosso and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

• [53] As referred to above, the Full Bench in Stogiannidis reasoned that no one factor needs to be exceptional in order to enliven the jurisdiction to extend time and individual factors might not be particularly significant when viewed in isolation, but that I must also consider the matters collectively and ask whether they disclose exceptional circumstances.[19]

• [54] In this case none of the above matters considered individually point towards there being any exceptional circumstances. For completeness I am still not satisfied that there are exceptional circumstances after reviewing the above matters collectively.

• [55] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Ms Rosso, I am not satisfied that there are exceptional circumstances. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. Accordingly, the application for an unfair dismissal remedy must be dismissed.

[1] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3 [2016] FWCFB 349 at [16], Ivan Cowen v Renascent Regional Pty Ltd [2021] FWCFB 2606 at [24].

[2] Fair Work Act 2009 (Cth), s.394(3)(a).

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (2018) 273 IR 156, [2018] FWCFB 901 at [30]- [40] and Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [36].

[4] Diotti v Lenswood Cold Stores Co-op Society (t/as Lenswood Organic) (2016) 258 IR 110, [2016] FWCFB 349 at [31].

[5] Glyn Roberts v Westech IT Solutions Pty Ltd [2014] FWC 4226.

[6] Beard v Valley Industries Limited [2020] FWC 4523 at [16].

[7] Shaw v Australia and New Zealand Banking Group Ltd (t/as ANZ Bank) (2015) 246 IR 362, [2015] FWCFB 287 at [15].

[8] Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting [2015] FWCFB 3435 at [15]- [16].

[9] Ibid at [15].

[10] Linda Merhi v Commonwealth of Australia, represented by Services Australia (formerly the Department of Human Services) [2020] FWCFB 3523 at [8], [37]-[39].

[12] Du v University of Ballarat (2011) 211 IR 382, [2011] FWAFB 5225 at [31]

[13] Fair Work Act 2009 (Cth), s.394(3)(b).

[14] Fair Work Act 2009 (Cth), s.394(3)(c).

[15] Fair Work Act 2009 (Cth), s.394(3)(d).

[16] Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [72].

[17] Fair Work Act 2009 (Cth), s.394(3)(f).

[18] See Lucic v Nolan [1982] FCA 217; (1982) 45 ALR 411 at 416, [1982] FCA 217; Wedesweiller and others v Cole and others [1983] FCA 94; (1983) 47 ALR 528 at 531, [1983] FCA 94; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349, [1984] FCA 176; Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300. See also Wilson v Woolworths [2010] FWA 2480 at [25]- [29].

[19] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156, [2018] FWCFB 901 at [38]- [39].

Printed by authority of the Commonwealth Government Printer