Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - application made beyond 21-day time limit - no exceptional circumstances - application dismissed.

• [1] On 17 June 2024, Mr Lesley Tilley made an application to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal.

• [2] Mr Tilley was dismissed from his employment with Global Sandstone Industries Pty Ltd (the Respondent) on 3 May 2024. To be within the 21-day time limit to bring a s.365 application, the application needed to have been made by 24 May 2024.

• [3] Section 366 of the Act states:

(1) An application under section 365 must be made:

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

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position."

• [4] The application has been made 24 days out of time. Mr Tilley seeks an extension of time within which to make his application.

• [5] Directions were issued, providing the parties with an opportunity to file witness statements and submissions. A hearing was convened by video using Microsoft Teams on 9 October 2024. Mr Randall Hart of Recover Legal was granted leave to appear for Mr Tilley. Mr Wazeem Kadir of Irwell Law was granted leave to appear for the Respondent.

• [6] The following people gave evidence and were cross-examined:

• Mr Tilley
• Mrs Tricia Tilley
• Ms Rachel Tilley
• Mr Jason Rawlings, CFO of an associated entity of the Respondent

• [7] Mr Tilley, together with his wife and daughter, worked at the Respondent's premises, a sandstone mine site in Murphy's Creek, Queensland. Mr Tilley was appointed as the Senior Site Executive (SSE) for the workplace. An SSE is required by legislation.

• [8] On 22 April 2024, Mr Tilley suffered a serious workplace injury when a 650kg sandstone block fell onto the left side of his pelvis, crushing his right-side pelvis and hip. He suffered two fractures to his pelvis, a fractured hip, serious disc damage to his lumbar spine, permanent damage to his L5 causing serious right leg symptoms including pain, loss of strength and sensation and multiple soft tissue injuries. He was air-lifted from the site due to the severity of his injuries.

• [9] WorkCover was notified of the injury by the Respondent.

• [10] Mr Tilley was hospitalised until 28 April 2024 when he was discharged into the care of his wife. He was unable to weight bear and was taking strong medication, including Endone.

• [11] He spoke with a WorkCover representative on 30 April 2024. He had been unable to do so any earlier as he was dealing with serious pain and taking prescribed pain medication. He reported to WorkCover:

"I have my wife at home caring for me, unable to currently move need fulltime care. Do we pay for a carer as she is unable to work to look after me."

• [12] From when Mr Tilley returned home and until 10 June 2024, he was entirely reliant on his wife for his home-caring needs. On or about 7 June 2024 he began to commence the first basic steps of mobility, using crutches, but still unable to weight bear. His wife found employment from 10 June 2024 and from then his adult daughter assisted him for his caring needs. Mr Tilley's evidence is that when he could commence using crutches, this initially created more care needs as he was attempting to become mobile.

• [13] On 3 May 2024, Mr Tilley was informed by telephone that he and his wife were to be immediately made redundant on account of the closure on the mine as the Respondent was unable to appoint an SSE in Mr Tilley's absence. The termination was never confirmed in writing.

• [14] Mr Tilley considered that Mrs Tilley had the requisite skills to be an SSE, however she did not have the required "ticket". Mr Tilley considered that the qualifications required the completion of a one-day course which Mrs Tilley could have completed, and the mine could have remained open.

• [15] Mr Tilley considers that companies in the Respondent's industry take on and carry losses. He considers that when they make profit, it is heavy.

• [16] Mr Tilley first spoke with a lawyer on 14 June 2024. He stated that he did not feel capable of speaking with anyone about the traumatic events of his injury before then. Mr Tilley's legal representative filed the application on 17 June 2024.

• [17] Mr Tilley had a consultation with Dr Vern Madden, who is a Director in a medical practice with a focus on Occupational Health, Rehabilitation and Injury Management. The consultation occurred by telephone on 2 September 2024 at the request of Mr Tilley's legal representative. Dr Madden's opinion on 2 September 2024, after having spoken to Mr Tilley is as follows:

a) "Having interviewed Mr Tilley, it is my opinion that, post the accident Mr Tilley suffered from a major depression. This was associated with significant anxiety and was a direct result of the injuries sustained on 22 April 2024."

b) "The physical injuries sustained, specifically the four fractures of his pelvis and

the fracture of the femur, in combination with the traumatic exacerbation of a preexisting disc osteophyte complex affecting the left L5 nerve root were life threatening at the time of the injury from blood loss but also subsequently life threatening from the point of view of the pelvic fractures being associated with a significant risk of deep venous thrombosis and subsequently potentially fatal pulmonary embolism.

The pain coming from these injuries, given their location and extent, could only be

expected to be excruciating or extreme, words used by Mr Tilley himself. The severity of the pain is indicated by the fact at no time during the post discharge from hospital recovery period was the pain adequately controlled, except when narcotic analgesia was used in such a high dose as to cause unacceptable side effects in the form of distressing mental confusion.

There were a number of factors which contributed to this, in particular, the fact

medical discharge correspondence was lost between the Royal Brisbane and Women's Hospital and the Toowoomba Base Hospital nor was it forwarded to Mr Tilley's general practitioner. Because he was unable to attend his general practitioner in person consultations were required to be conducted via Telehealth. He was only ever given a single narcotic analgesic which, to his knowledge, was Oxycodone, initially in a dose of 75 milligrams twice a day which was insufficient to treat the pain. Subsequent increase in dose to 150 milligrams twice daily resulted in severe side effects, specifically mental confusion, interference with memory, attention and concentration and a feeling of been unwell, such that he was unable to tolerate the higher dose which did have associated with it some analgesia. He then tried simple analgesics such as Panadol and Nurofen which were unhelpful. For reasons not known to me, no other medications were trialed by his treating practitioner, and he remained in severe pain during the two months post discharge from the Royal Brisbane and Women's Hospital.

In summary the injuries themselves were out of the ordinary and unusual by the fact

they were life threatening, associated with extreme uncontrolled pain levels, confined him to a recliner and toilet for weeks in his home and resulted in a significant psychological complication in the form of a major depression.

The injuries are uncommon, it is for example not common that a person has to be

retrieved by helicopter from the workplace due to the severity of the injuries."

1. "In my opinion, the client's multiple injuries, together with the medication, specifically Oxycodone and its side effects did severely affect your client's ability to seek assistance for legal matters. In my opinion, I can only describe this, in the colloquial, your client was overwhelmed by pain and by the symptoms of depression and anxiety during this period. He was effectively confined to his lounge room and the toilet where any trip to the toilet in at least the first three weeks required the assistance of his wife and a special frame on the toilet so he could undertake the visit. Pain was disturbing his sleep awakening him every hour, ensuring he was sleep deprived. Further, he was in a situation after been informed he no longer had a job where he was again, in the colloquial, terrified that he would lose his home. There were significant symptoms of depression and anxiety present such that his attention would be constantly disturbed by the replaying of the event in his mind. Overall during the two months post accident his cognition, memory, attention span, concentration, judgement and logical thought processes were all significantly impaired."

• [18] On 6 September 2024, I directed Mr Tilley to produce to the Commission evidence of all calls and texts made by him on his mobile phone for the period 22 April 2024 - 17 June 2024. The documents produced by Mr Tilley did not extend as far back to the period required in respect of telephone calls made by him. In respect of text messages sent by him, they are as follows:

"Can you please get a box of tissues if it's not too late"

Picture of a white utility for sale which I think is accompanied by text saying "Farm equipment for sale"

e) Various other text messages between Mr Tilley and Mrs Tilley

"Hi can you give Nelly a big KISS from all of us and make sure she has a great day we love you guys we will talk later"

"Thank you very much for your kind parcel. I'll enjoy the magazine and I'll log onto Stan while I enjoy my Tim Tams. Thank you. Love you."

Picture of Mr Tilley with a hydrating white face mask on.

"Hi, sorry I don't have my mobile turned on much any more. I'm feeling okay day by day"

• [19] On 16 July 2024, Dr Alan Loch, Orthopaedic Surgeon, completed a report for WorkCover. Dr Loch was asked the following question by WorkCover and answered it as follows:

"13. Relevant psychosocial factors that could have an impact on treatment, recovery and return to work.

• [20] In cross-examination, Mr Tilley agreed that he had not seen a psychiatrist or psychologist prior to lodging his application on 17 June 2024. He stated that he tended to 'bottle a lot of things up'.

• [21] Mr Tilley said that while he was recuperating at home, he would typically watch around six hours of television per day. He has poor internet at his home.

• [22] Mr Tilley considers that he was unable to make any logical decisions until such time as he spoke with his lawyer on 14 June 2024.

• [23] Mrs Tilley gave evidence that the accident and injuries have had a devastating impact on her husband. She had to provide care to him 24 hours a day when he returned home from hospital, including assistance with toileting and showering.

• [24] Mrs Tilley made the decision to return to work shortly before 10 June 2024. She stated that Mr Tilley was not "better" at this stage; he was attempting to transfer with crutches.

• [25] In evidence given during the Hearing, she stated that the Respondent's owner, Mr Michael Oldmeadow still owed money to her on account of the fact that she had earlier owned the assets of the business and Mr Oldmeadow still needed to pay the fourth instalment.

• [26] She stated that around three weeks after the dismissal, she and Mr Tilley started discussing bringing a claim. Mrs Tilley was dismissed at the same time as Mr Tilley but also was not informed in writing. She found out about her dismissal when money was deposited into her bank account.

• [27] Ms Rachel Tilley is the adult daughter of Mr and Mrs Tilley. She had moved in with her parents in the weeks before the accident. It had been a temporary arrangement, however she remained living there to provide assistance to her father.

• [28] After Mrs Tilley found work on 10 June 2024, Ms Tilley became her father's primary care giver.

• [29] In evidence given during the Hearing, she noted that her father was in pain for the first few weeks after the injury. When the pain subsided, the conversations with him improved. She considered that the medication knocked him around a bit and the nerve blocker made him cloudy.

• [30] Mr Rawlings stated that he is employed by Michael Oldmeadow as a Chief Financial Officer to manage the finances and assist in operating his multiple businesses including the Respondent.

• [31] Mr Tilley was an owner of Tilley's Excavation Pty Ltd, operating the mine in Murphy's Creek. When Mr Oldmeadow purchased the mine, he then employed Mr Tilley from June 2023 to be the mine's SSE.

• [32] From November 2023, the sandstone mining business was slowing down. The Respondent's largest client had visited the site and had reported declining sales. Poor weather in early 2024 had a large impact, as did the economy in general.

• [33] Despite the pessimistic outlook, Mr Oldmeadow instructed Mr Rawlings to hire two new employees, one commencing in December 2023, the other in January 2024. Both of those employees finished up with the Respondent in March 2024.

• [34] Mr Rawlings' evidence is that Mr Tilley did not want these employees employed for a variety of reasons. Mr Tilley proved to be correct about the two employees, but the Respondent considered that Mr Tilley was unwilling to try and teach the employees the correct way to go about their work.

• [35] On 8 January 2024, Mr Jamie Cook became the CEO of Barry's Recycling, part of Mr Oldmeadow's group of companies. Mr Oldmeadow asked Mr Cook to turn his mind to the Respondent's business and see if he could make suggestions to improve it.

• [36] In early January 2024, Mr Rawlings and Mr Cook visited the mine and met with Mr Tilley. Mr Cook reported to Mr Rawlings that he did not think Mr Tilley was the right person to be running the mine. He didn't think Mr Tilley could turn things around. Between February and April 2024, Mr Rawlings and Mr Cook would meet weekly with Mr Tilley, but their concerns grew. They considered that Mr Tilley would not take responsibility for things on site.

• [37] On 27 February 2024, Mrs Tilley slipped and fell at work. Mr Rawlings considered that it was due to unsafe practices that could have been prevented, predominantly by Mr Tilley.

• [38] Mr Rawlings considers the injury to Mr Tilley on 22 April 2024 was largely because of significant safety breaches of Mr Tilley. He noted that he was airlifted to hospital. Mr Rawlings lodged a WorkCover claim on 23 April 2024. On the same day, a mines Inspector arrived on site and suspended all operations until:

• A new SSE was appointed or Mr Tilley returned to site; and
• A risk assessment or workplace procedure was developed on manual slab cutting; and
• Employees are trained in the risk assessment and procedure of slab cutting.

• [39] The directive given by the Inspector is as follows:

"In giving this directive I believe risk from operations is not at an acceptable level.

The reason for my belief or suspicion is based upon the following -

(i) the risk from the manual slab cutting operation that was being carried out at the time of the incident was not within acceptable limits and as low as reasonably achievable as the injured worker did not identify the potential hazard of breaking of the slab and falling onto the worker as he was working in the line of fire.

(ii) No control has been applied to manage the hazard as the hazard was not identified.

(iii) Neither a risk assessment has been conducted nor a work procedure has been developed for carrying out slab cutting task manually.

(iv) The SSE cannot fulfil his obligation for providing adequate supervision and control of operations as he is currently not fit for duty."

• [40] On 26 April 2024, Mr Rawlings spoke with Mr Tilley who advised he would not start physio for another six weeks and it was likely to be many months until he could return. Mr Rawlings noted there was only 14 days to find a replacement for Mr Tilley.

• [41] On 29 April 2024, the mines department then advised that Mr Tilley could no longer be the SSE of the mine unless he had a medical certificate certifying him fit for work and could physically attend the site. Mr Rawlings and Mr Tilley tried all contacts that had, but the only person who was available was seeking to charge $5,000 per day.

• [42] On 30 April 2024, Mr Cook reported the following in a management Whatsapp group chat:

"Hi Michael, I understand you are busy at the moment, however we just need you to give us some direction on the situation with GSI.

I spoke with Les at length this morning & he is now saying he could be out of action anywhere up to 5 months.

Tricia, Rachel & Neil are all looking for new employment. We have spoken to employment agencies, Troy, Robert & lan with no luck in finding a replacement SSE.

Part of the issue is really that our reputation according to the feedback we are getting is that staff who have been sacked or left GSI are not painting a positive picture of a place to work in the industry, so whoever we have tried to get are not interested.

Of course the scheduled customers jobs we had on the books need answers from us as we can't supply their orders, we have said we will get back to them but that was days ago.

Given we aren't having any success in finding a replacement SSE we are getting seriously desperate. We would have to put a search out Australia wide & be prepared

to pay a lot of money to possibly not get someone & even by the time we did, the new SSE won't have any staff left to manage & have to start from scratch & given our negative reputation, who would we get, how much money do we want to keep throwing at this I don't know.

Les is giving us the impression that he has pretty much given up & sees no positive outcome for GSI. On the plus side there are significant benefits for Barry's if we absorb the equipment, not only reducing R&M & fuel costs but also reducing debt levels.

I know you wanted to give the place another 3 months to see how it could improve but this last incident seems to us to be another sign that it's time to rethink that decision.

Jason & I can be available to go through everything with you today at 3:30pm our time if you need to discuss further so we can get some clear direction on what to do next."

• [43] On 1 May 2024, Mr Rawlings completed a detailed cost benefit analysis of keeping the mine open or closing it and selling assets and land. This was provided to Mr Oldmeadow for his consideration. The most relevant information is produced below:

"The operational expenses if we remain open are dependant upon what sort of operations you will be running.

For example last month April GSI did $26,137 sales, Expenses $46,451 for a loss of $20,314.

If you want the factory and quarry running again with skeleton staff 4 people. Your monthly expenses across the year so including yearly costs $50-60k per month.

However, to get opened again you will also have to spend $25k on a man hunt to find an SSE and pay them big money. Still need to spend some more money purchasing another saw $25k since the guys broke the brand new saw that was only just built. Plus another $30k on a hammer. Plus potentially a 10 tonne forklift. Plus $5k on a website.

More on marketing the website. Where the business has never been able to prove that is capable of creating a profit.

Currently since Les took over 1st July GSI has lost $75,666 plus interest on loans for the company around another $60k, EXCLUDING any purchase of machinery for the business just trading loss total $135,666. Note this does also include $24k in international travel.

The other risk to remaining open at GSI is that they have had 2 accidents that could have caused death in 2 months, you were just lucky that they weren't more severely injured or it could have cost millions. It's high liability at GSI for not much benefit and it's not over the mines department or workcover could still do investigations and come after you in the future if they wanted to.

Overall I believe the best course of action is to sell GSI and focus on Barry's, however, as always this is your company and your decision and we will go with whatever decision you choose."

• [44] The Respondent has, at the Commission's direction, estimated that the phone call between Mr Tilley and Mr Cook was approximately five minutes in duration.

• [45] On 2 May 2024, Mr Oldmeadow made the decision to close the Respondent's business and move machinery to the other business in Redland Bay. The same day, Mr Rawlings spoke with Employsure Pty Ltd to obtain advice in respect of making employees redundant. During the Hearing it became clear that Mr Rawlings spoke with the advice arm of Employsure and not its legal arm, and accordingly there is no legal professional privilege attached to the advice given by Employsure.

• [46] Mr Rawlings did not follow the advice given by Employsure to consult with employees and consider redeployment of redundant employees. Further, he did not issue termination letters to employees. He said during the Hearing that he forgot to. He considered that at no time did the Respondent dismiss Mr Tilley because of his injury; he was dismissed because the Respondent could not find an SSE to keep the mine open and a decision was made to close and sell the mine.

• [47] On 3 May 2024, he and Mr Cook telephoned Mr Tilley and informed him of Mr Oldmeadow's decision to close the business and make himself and Mrs Tilley redundant. He was to be paid out his entitlements.

• [48] He did consider offering a role to Mr and Mrs Tilley at Redlands Bay, as advised to Mr Rawlings by Empoysure, however he did not discuss this with them as it is a 5-hour return trip from their home.

• [49] The business has closed and there are no employees on site. Stock has been sold.

• [50] Mr Tilley submitted that there are exceptional circumstances for why his application has been filed late. He was almost killed in a workplace accident and required constant care.

• [51] It was submitted that Mr Tilley felt well enough to make a telephone inquiry to his legal representatives on 14 June 2024, when he had only, seven days earlier, taken first steps towards some basic mobility using crutches.

• [52] Mr Tilley submitted that there is no prejudice to the Respondent.

• [53] He submitted that the application has merit, and he is protected from being dismissed due to his injury.[1]

• [54] He is not aware of any other person in his position.

• [55] The Respondent submitted that the medical records relate to Mr Tilley's physical incapacity to perform work, not any mental ability to make a decision. Dr Loch reported to WorkCover on 16 July 2024 that there were no psychosocial factors impacting Mr Tilley's treatment recovery and return to work.

• [56] It was submitted that Mr Tilley performed other tasks in the period he had to file an application to the Commission. It was submitted he was not mentally incapacitated; he could have requested his wife or daughter make the application on his behalf.

• [57] It was submitted that Mr Tilley took no action to dispute the dismissal until the filing of the application.

• [58] The Respondent submitted there is some prejudice in defending an application this far out of time.

• [59] It was submitted that the application has no merit as the mine site was closed down and that is the reason for the dismissal.

• [60] The Respondent submitted that there is no apparent comparator relevant in this matter.

• [61] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd,[2] where the Full Bench said:

"[10] It is convenient to deal first with the meaning of the expression 'exceptional circumstances' in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression 'exceptional circumstances' in s.394(3) and held:

'[5] The word 'exceptional' is relevantly defined in The Macquarie Dictionary as "formatting an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.'

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression 'exceptional circumstances' was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

'23. I am of opinion that the expression "exceptional circumstances" requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:

"Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances."

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CL at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25 And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:

"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

26. Exceptional circumstances within the meaning of s 106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.'

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

• [62] For exceptional circumstances to arise, as contemplated by s.366(2) of the Act, it is not necessary that the applicant for the extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances exist.

• [63] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[3]

• [64] The test of 'exceptional circumstances' establishes a 'high hurdle' for an application seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[4] A decision whether to extend time under s.366(2) involves the exercise of a discretion.[5]

• [65] The reason for the delay in lodging an application is a factor that must be considered. The Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[6] The absence of an 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 an applicant's favour, though it is ultimately a question of degree and insight.[7]

• [66] A reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[8] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[9]

• [67] There is no doubt that Mr Tilley had a catastrophic workplace accident on 22 April 2024. He was severely injured and is lucky to be alive. What happened to him was exceptional and out of the ordinary. He was discharged from hospital before he was dismissed and was on strong pain killers for a period of time. I have no doubt that he continued to be in pain while at home, and he needed his wife, then his adult daughter to care for him.

• [68] Mr Tilley was dismissed by telephone on 3 May 2024. Quite appallingly, and despite correct advice being given to the Respondent that a termination should also be in writing, a termination letter was not sent to Mr Tilley, nor to Mrs Tilley in respect of her own dismissal due to redundancy. There is no doubt that the Respondent failed to meet its obligations to consult with Mr Tilley in respect of the decision to make him redundant and to discuss redeployment. That is not, however, a subject of this application.

• [69] While Mr Tilley was in considerable pain and affected by medication in the period between the dismissal and when he filed the application, he did not seek any medical treatment for any mental incapacity despite being seen by numerous medical professionals. It was expressly reported in July 2024, one month after he filed the application that he was not affected by mental incapacity.

• [70] In September 2024, to support the reasons for his delay in bringing this application, he obtained a medical report stating that he had been suffering from a mental incapacity, including depression and anxiety at the relevant time. I do not consider the medical report to be persuasive. I consider it to be self-serving and produced for the purposes of attempting to persuade the Commission to grant an extension of time. There is no contemporaneous medical evidence in respect of Mr Tilley's mental state at the relevant time, despite him being seen by medical professionals in respect of his injuries.

• [71] On the evidence before the Commission, Mr Tilley was using his mobile phone during the relevant period and communicating with his wife and friends by text. He may not have been extensively using his mobile phone due to the effects of medication, but he did use it to a reasonable degree. I consider that he was not incapacitated to prevent him accessing advice in respect of bringing an application. Despite his injuries preventing him freely driving to and meeting with legal representatives, there appears to me to have been no obstacle in bringing an application to the Commission within the time limit, being legally represented or not.

• [72] It is clear that Mr Tilley had a telephone conversation with Mr Cook on 30 April 2024, some days before he was dismissed. He was capable of having some detailed telephone conversation from at least 3 May 2024 to inquire or seek pursuit of bringing his application.

• [73] I am satisfied that Mr Tilley was physically incapacitated for some period of time, and remains so, and I recognise that the effect of pain killers on him would have clouded his thinking and judgment. I accept that the injury occasioned to him was exceptional and out of the ordinary. I consider, however, that he was not prevented from bringing his application within the time limit due to any mental incapacity, including depression and anxiety.

• [74] Mrs Tilley's evidence is that approximately three weeks after the dismissal, she and Mr Tilley were discussing taking some action to dispute the dismissal. It took another three weeks or so to bring the application.

• [75] The reasons for the delay provided are, in my view, not reasons that are supportive of an extension of time being granted.

Any action taken by the person to dispute the dismissal - s.366(2)(b)

• [76] Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant's employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[10]

• [77] I do not consider that Mr Tilley took any action to dispute the dismissal until 14 June 2024, despite having his wife and adult daughter in his family residence who could have taken instructions from him to make inquiries about disputing the dismissal. On Mrs Tilley's evidence, it appears that from around late May 2024, she and Mr Tilley were discussing taking some action to dispute the dismissal.

• [78] The failure to take action to contest the dismissal does not support an extension of time being granted.

Prejudice to the employer (including prejudice caused by the delay) - s.366(2)(c)

• [79] The Respondent's relevant personnel are still employed by the group of companies owned by Mr Oldmeadow. I do not consider that there would be any prejudice to the employer caused by the delay in bringing the application.

• [80] It is well established that "it will not be appropriate for the Commission to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)."[11]

• [81] This is an interesting case where I consider the merits of the application are so significantly weak that it is appropriate to discuss in more detail than I typically would in respect of an application that has been made out of time. I do not consider that there are any contested issues of fact.

• [82] On account of Mr Tilley's significant injuries, the mine site was suspended from operating and the Respondent given a deadline to appoint an SSE. Despite the Respondent's best efforts, an SSE could not be appointed. Mr Tilley made strong statements that Mrs Tilley ought to have been appointed upon doing a one-day course, however it is entirely at management's prerogative whom it wishes to appoint as an SSE, or not appoint one at all.

• [83] The facts are that without an SSE, the mine would close and there would be no work for employees to do. Having regard to where Mr Tilley lives, he could not be reasonably redeployed and the termination of his employment due to redundancy was inevitable. I consider that it is patently obvious that he was dismissed due to redundancy and not because he was an injured worker. Mrs Tilley was dismissed due to redundancy and was not injured. Ms Tilley was not offered any further work. All employees at the site were not offered any further work.

• [84] It appears to me regrettable that Mr Tilley's legal representative has remonstrated, particularly during the Hearing that Mr Tilley cannot be dismissed according to the Compensation and Rehabilitation Act 2003 (s.232B) on account of being an injured worker. There can be other reasons for Mr Tilley's dismissal and in my view, he was not dismissed because he is an injured worker; nor was Mrs Tilley or Ms Tilley.

• [85] I do not consider the merits in Mr Tilley's application support an extension of time being granted.

Fairness as between the person and other persons in a like position - s.366(2)(e)

• [86] The criterion of "fairness as between the person and other persons in a similar position" was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm,[12] where it was said:

"...cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission."

• [87] I am not satisfied that the criterion of fairness between Mr Tilley and other persons in a similar position weigh strongly in favour of either party. As such, I consider it a neutral consideration.

• [88] Taking into consideration the matters I am required to take into account under s 366(2) of the Act, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

• [89] Although the circumstances surrounding Mr Tilley's injury are significant, including that at the time they were life-threatening, and for some time he was affected by strong pain killers, having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

• [90] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2). Accordingly, the application must be dismissed.

[1] Compensation and Rehabilitation Act 2003 (Section 232B).

[2] [2011] FWAFB 975.

[3] Smith v Canning Division of General Practice [2009] AIRC 959.

[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[5] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

[6] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36].

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 at [35]- [45].

[8] Ibid; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288.

[9] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]- [33]; and Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[11] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [36].

[12] [2015] FWC 8885 at [29].

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