Fair Work Act 2009

s.394 - Unfair dismissal

Application for relief from unfair dismissal - extension of time not granted.

[1] Mr Manoj Ellikuttige alleged that the termination of his employment by the Moonee Valley Racing Club was unfair.

[2] There was no dispute that the date of termination was 26 June 2015 or that Mr Ellikuttige was notified of his dismissal that day. A completed Form F2 - Unfair Dismissal Application form was filed on behalf of Mr Ellikuttige by his representative with the Fair Work Commission (Commission) on 25 July 2017.

[3] Mr Ellikuttige's application was therefore not made within 21 days after the dismissal took effect, as required under s394 (2) (a) of the Fair Work Act 2009 (Cth) (the Act).

[4] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances under s394(2)(b). In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters under s394(3). Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd [1] where the Full Bench said:

"[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." [Endnotes not reproduced]

[6] At the Hearing, Mr Ellikuttige gave evidence and addressed the material he had filed. His daughter, Ms Dilki Ellikuttige, also gave evidence on his behalf.

Section 394(3)(a): the reason for the delay

[7] One of the matters that must be considered is whether an acceptable reason for the delay in making the unfair dismissal application exists.[2] Mr Ellikuttige must provide a credible reason for the whole of the period that the application was delayed.[3]

[8] The delay required to be considered is the period beyond the prescribed 21 day period for lodging 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 in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.[4]

[9] The Full Bench explained the correct approach by reference to the following example in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[5]:

"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."

[10] Mr Ellikuttige's application was filed two years and eight days late. Mr Ellikuttige submitted a number of reasons for the delay in the filing of his application for unfair dismissal. In detailing and considering his explanation for the delay it is helpful to summarise the timeline of relevant events:

• Mr Ellikuttige's employment was terminated on 26 June 2015[6];

• Mr Ellikuttige was arrested and charged on 30 July 2015[7] in relation to alleged threats to kill Moonee Valley Racing club staff which were made on 23 July 2015 in the presence of a clinical psychologist, Ms Lisa Bloom[8];

• In August 2015, Mr Ellikuttige became homeless along with his daughter who he was caring for at the time[9];

• Between 17 August and 24 September 2015, Mr Ellikuttige travelled to and from Sri Lanka with his daughter[10];

• On 28 July 2016, the charges laid against Mr Ellikuttige in July 2015 were formally withdrawn by police[11];

• On 22 May 2017, Mr Ellikuttige met with his lawyer, Mr Sidney Mendis, and instructed him to file an unfair dismissal application[12]; and

• An unfair dismissal application was filed with the Commission on 25 July 2017.

[11] Mr Ellikuttige stated that following his termination on 26 June 2015 he was "very stressed".[13] Mr Ellikuttige submitted that the stress and anxiety associated with his termination, along with his arrest over alleged threats to kill in July 2015, his subsequent homelessness, his return to Sri Lanka with his daughter in August 2015 and his claimed ignorance of his rights to pursue unfair dismissal all contributed to the delay in filing his unfair dismissal application.

[12] In support of his claims of stress and anxiety, Mr Ellikuttige tendered a copy of the statement of Ms Lisa Bloom, dated 30 July 2015, which was prepared for the police investigation into the alleged threats to kill[14]. The statement describes meetings and discussions between Ms Bloom and Mr Ellikuttige during the period 9 June - 30 July 2015. During those discussions Mr Ellikuttige reportedly made various statements as to his state of mind and also made threats to kill Mooney Valley Racing Club staff. The police subsequently arrested Mr Ellikuttige on 30 July 2015 and charged him with making threats to kill.

[13] The statement of Ms Bloom does not constitute a medical report and, while it indicates that Mr Ellikuttige was suffering distress at that time, it does not provide any evidence as to whether Mr Ellikuttige's medical condition was such that it would have prevented him from filing an unfair dismissal application in the period immediately following the termination of his employment on 26 June 2015. Furthermore, it provides no information on his medical condition beyond 30 July 2015.

[14] Mr Ellikuttige also tendered a medical report prepared by consultant psychiatrist, Dr Ashok Kumar Singh, which is dated 9 July 2017[15] but is in fact signed by Dr Singh as at 16 July 2017. Allowing for the difference in dates in the report, the earliest date that Dr Singh's opinion could be said to have been formed is that of 9 July 2017. Dr Singh does not provide any evidence as to whether Mr Ellikuttige's medical condition impacted his ability to lodge an unfair dismissal application between the termination of his employment on 26 June 2015 and the time of preparing his report on 9 July 2017.

[15] Mr Ellikuttige stated that he was of the belief that the police were investigating the termination of his employment as part of their investigation into the alleged threats to kill.[16] No basis for the formation of this belief was provided. In any case, the police matter was withdrawn on 28 July 2016 and no credible explanation was provided by Mr Ellikuttige as to the further delay between that date and when he sought advice from his lawyer on 22 May 2017.

[16] On 22 May 2017, Mr Ellikuttige met with his lawyer, Mr Sidney Mendis. Mr Ellikuttige states that at this meeting he was advised by Mr Mendis that the criminal matter and his employment termination were separate issues. Mr Ellikuttige states that he then instructed Mr Mendis to file an unfair dismissal application[17]. No evidence or explanation was provided as to why the unfair dismissal application was not then filed until 25 July 2017, a further two months later.

[17] Mr Ellikuttige stated that he was homeless in the period from August 2015 to 25 July 2017. This evidence was corroborated by Ms Ellikuttige. Further evidence was also provided by Ms Erin Farrall of the Department of Human Services - Centrelink, in a letter dated 8 June 2016 to the Footscray Housing Office,[18] in which reference was made to Mr Ellikuttige's long term homelessness.

[18] While Mr Ellikuttige has been homeless for an extended period of time, there was no evidence as to how that impacted his ability to pursue an unfair dismissal application. Notably, in the period 5 August 2015 to 28 July 2016, it was submitted by Mr Ellikuttige that he was required to variously attend court in relation to the criminal proceedings brought against him. It is difficult to reconcile that attendance and response to the criminal proceedings brought against him with his claimed inability to manage issues arising from the termination of his employment.

[19] Mr Ellikuttige and his daughter also provided evidence of their travel back to and from Sri Lanka in the period 17 August 2015 to 24 September 2015. This travel suggests a reasonable level of capability and functioning on the part of Mr Ellikuttige at a time when he claimed to be suffering depression and anxiety.

[20] Moonee Valley Racing Club submitted that Mr Ellikuttige had produced no evidence that his anxiety, stress, impecuniosity or homelessness had prevented him from filing an unfair dismissal application.

[21] Moonee Valley Racing Club relied on a number of Commission authorities in support of its submissions that Mr Ellikuttige's reasons for the delay do not support an argument that there are exceptional circumstances:

• Mental illness does not provide an exceptional circumstance unless it prevents the Applicant from filing his application for the entire period of the delay (Muzinda v Mr & Mrs Jones Pty Ltd[19]);

• The applicant could not rely upon the police investigation as a basis for not asserting his legal rights before or after 30 July 2015 (Prasad v Alcatel-Lucent Australia[20]) and (Costello v Origin Energy Ltd[21]);

[22] There is little doubt that Mr Ellikuttige found himself in a state of considerable difficulty and distress following the termination of his employment. That state included "mild anxiety and depressive symptoms with THC dependence"[22] coupled with homelessness and unemployment. Such circumstances are regrettably neither unusual nor uncommon.

[23] There are, however, a number of factors that weigh against Mr Ellikuttige's claims that he was unable to make an application prior to 25 July 2017, two years and eight days beyond the 21 day statutory period. Those factors include:

• The absence of medical evidence as to Mr Ellikuttige's condition between the date of his termination on 25 July 2015 and 9 July 2017;

• His claimed and mistaken belief as to the role of the police in investigating the termination of his employment;

• His travel to and from Sri Lanka in August-September 2015 with his daughter;

• The absence of evidence as to how his homelessness has impacted on the delay in filing his unfair dismissal application;

• His delay in obtaining legal advice following the resolution of the criminal matter in July 2016; and

• The delay in the filing of his unfair dismissal application following instructions issued to his lawyer in May 2017.

[24] For the reasons outlined above, I am not satisfied that Mr Ellikuttige has provided a reasonable explanation for the delay in lodging his application. This weighs against a finding that there are exceptional circumstances.

Section 394(3)(b): whether the person first became aware of the dismissal after it had taken effect

[25] Mr Ellikuttige was notified of his dismissal in a meeting on 26 June 2015 and was aware of its immediate effect. He also received a letter of termination on the same day. As he was aware of the dismissal on the day it took effect, Mr Ellikuttige had the full 21 days to file his application. This weighs against a finding that there are exceptional circumstances.

Section 394(3)(c): any action taken by the person to dispute the dismissal

[26] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[23]

[27] Mr Ellikuttige said he believed that the police were going to investigate the termination of his employment as part of the investigation and proceedings that flowed from the criminal charges laid against him on 30 July 2015.

[28] Mr Ellikuttige also stated that when he received legal advice on 22 May 2017 he was advised that the criminal proceedings were separate from his employment termination. On the basis of that advice he then instructed his lawyer on 22 May 2017 to file an unfair dismissal application

[29] I do not regard Mr Ellikuttige's claimed and mistaken belief that police were going to investigate his termination of employment as constituting action taken by him to contest his termination of employment.

[30] There was no other evidence that Mr Ellikuttige sought to contest the dismissal, other than lodging an unfair dismissal application on 25 July 2017, and this weighs against finding that there are exceptional circumstances.

Section 394(3)(d): prejudice to the employer (including prejudice caused by the delay)

[31] Prejudice to the employer will weigh against granting an extension of time.[24] Mr Ellikuttige made no submissions on this issue.

[32] The Moonee Valley Racing Club submitted that it would suffer prejudice due to the significant length of the delay, the application being two years and eight days out of time. In doing so they relied on the reasoning in Brisbane South Regional Health Authority v Taylor.[24]

[33] The prejudice submitted by the Moonee Valley Racing Club includes the requirement that they determine whether relevant employees are still employed and the impact of the extended period of time on the recollection of events no longer fresh. I accept that submission which weighs against granting Mr Ellikuttige a further period to make his application.

Section 394(3)(e) the merits of the application

[34] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[2], it said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

[35] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case"[2] for the purpose of determining whether to grant an extension of time to the applicant to make their Application. I have adopted this reasoning.

[36] In his Form F2 - Unfair Dismissal Application form, Mr Ellikuttige stated that he was dismissed for "attempting to bribe the club in order to gain financial advantage". In denying the alleged charges, Mr Ellikuttige stated that the notification of his dismissal followed him raising enquiries with the Moonee Valley Racing Club regarding the status of an investigation into rape allegations made against him.

[37] The Moonee Valley Racing Club submitted that it dismissed Mr Ellikuttige "for serious and wilful misconduct relating to a demand by the Applicant for a financial benefit from the Respondent under threat".

[38] I am not able to make a final assessment of the merits as clearly there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

Section 394(3)(f): fairness as between the person and other persons in a similar position.

[39] In Wilson v Woolworths,[2] it was said of this consideration:

"It is not therefore entirely clear as to whether or not the so-called principle is operative in relation to the approach to matters of a similar kind that are currently before the court or the tribunal or whether the court or the tribunal is to consider how, in some general sense, similar matters have been approached historically."[2]

[40] More recently the question of fairness as between the Applicant and other persons in a similar position has been considered in Morphett v Pearcedale Egg Farm,[2] as follows:

"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."

[41] No submissions were made by Mr Ellikuttige on this issue and on that basis I consider this criterion to be neutral.

[42] The delay in filing of the application for unfair dismissal by Mr Ellikuttige was substantial.

[43] In considering whether exceptional circumstances exist, the conduct of Mr Ellikuttige throughout the whole period after dismissal is relevant to whether an extension of time should be granted.

[44] Having taken into account the matters referred to in paragraphs [7]-[41] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Mr Ellikuttige's application to be made. Mr Ellikuttige's circumstances were certainly difficult but were not out of the ordinary course, unusual, special or uncommon and he has not provided a reasonable explanation for the whole of the delay. None of the other criteria weigh in favour of a finding of exceptional circumstances.

[45] Mr Ellikuttige's application for an extension of time is refused and therefore his unfair dismissal application is dismissed. An Order to that effect will be issued with this decision.

[1] [2011] FWAFB 975; (2011) 203 IR 1.

[2] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[3] Cheval Properties Pty Ltd v Smithers [2010] FWAFB 7251; (2010) 197 IR 403 at 408-9.

[4] 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].

[5] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [31].

[19] [2017] FWC 1181.

[20] [2010] FWA 7804.

[21] [2017] FWC 3946.

[23] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[24] 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 per McHugh J.

[2]6 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[2]7 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

[2]8 Wilson v Woolworths [2010] FWA 2480.

[2]9 Wilson v Woolworths [2010] FWA 2480 at [29]

30 Morphett v Pearcedale Egg Farm [[2]](http://www.fwc.gov.au/decisionssigned/html/