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[46]
[2020] FWC 834
General information, not legal advice.
Fair Work Commission
2020-02-17
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for relief from unfair dismissal - extension of time - application dismissed.
[1] Mr Marcus Palmer has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with The Salvation Army which his form F2 Unfair Dismissal Application advised took effect on 27 November 2019.
[2] The application was lodged on 23 December 2019.
[3] Mr Palmer's application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:
"At the time of dismissal and in the weeks leading up to I was seeing a Psychologist on a Mental Health Care Plan for anxiety from work related stress and personal stress. I also had undergone work related Psychometric testing which also added to the anxiety and stress I was under at the time on the 14th November. Following my dismissal I have been working through my anxiety with my Psychologist but wasn't in a stable place where I could make an application in time."
[4] On 17 January 2020, The Salvation Army lodged a form F3 Employer Response which indicated that the dismissal occurred on 27 December 2019 and raised a jurisdictional objection on the basis that the application was lodged out of time. This decision only deals with the extension of time issue.
[5] On 21 January 2020, an amended form F3 Employer Response was lodged, correcting the date of termination to 27 November 2019.
[6] On 20 January 2020, my Associate corresponded with Mr Palmer and The Salvation Army and advised that the extension of time issue would be considered at a telephone conference on 17 February 2020. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Palmer was directed to provide a statement concerning the extension of time and any documents to be relied upon by 3 February 2020. The Salvation Army was invited to file any material in reply by 10 February 2020.
[7] Mr Palmer provided the following documents:
Letter from Dr Sean O'Toole dated 31 January 2020 to the 'Unfair Dismissal Tribunal' confirming that Mr Palmer is currently a patient and that he was referred to a psychologist on 4 October 2019.
Information and Acknowledgement for Psychological Assessment signed by Mr Palmer on 20 October 2019.
Letter from Dr Ryan Balzan, Clinical Psychologist, dated 21 January 2020 stating that Mr Palmer has had therapy in relation to generalised anxiety from October 2019.
An outline of submissions dated 31 January 2020.
[8] Mr Palmer's outline of submissions are summarised as follows:
In the lead up to dismissal, Mr Palmer was seeing a psychologist due to anxiety he was experiencing. He was diagnosed with General Anxiety Disorder.
On 13 and 14 November 2019, as a requirement of his employment, he attended a psychometric testing the purpose of which was to ascertain his suitability for working with children living in residential care connected to the Department of Child Protection. He had been forewarned by The Salvation Army that this would be a confronting process and that The Salvation Army would provide support following the assessment. The assessment required him to open up about his mental health and personal history.
Mr Palmer took leave following the assessment on 14 November 2019.
When he was dismissed on 27 November 2019, he was not mentally able to address or comprehend the dismissal.
He met with his psychologist on 4 December 2019.
He took time away to process what had occurred on 8 and 10 December 2019 as well as spending some time doing physical activities including weekly attendance at a Surf Life Saving Course.
He was scheduled to meet with his psychologist on 18 December 2019 but his was cancelled by the psychologist due to the heat.
Once he had processed what had occurred, he regained confidence to submit an unfair dismissal application on 23 December 2019.
[9] The Salvation Army provided a written submission which is relevantly summarised as follows:
The Applicant has not established that there are exceptional circumstances.
• The Applicant's evidentiary material does not enliven the factors as set out in Nulty v Blue Star Group Pty Ltd.[1]
• It is common for employees to suffer shock and trauma as a result of dismissal from employment, therefore the case of Rose v BMD Constructions Pty Ltd[2] should be taken into account.
[10] A hearing was conducted by way of telephone conference on 17 February 2020. A sound file record of the telephone conference was kept. Mr Palmer did not attend. Ms Olga Hunt and Ms Marisa Romeo represented The Salvation Army.
[11] The Salvation Army relied on its written submissions.
[12] Section 394 relevantly states:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(f) fairness as between the person and other persons in a similar position."
"[5] The word "exceptional" is relevantly defined in The Macquarie Dictionary as "forming 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 CLR 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."
[14] This unfair dismissal application by Mr Palmer was made 5 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
[15] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
[16] The Applicant contends that his General Anxiety Disorder is the reason for the delay in filing an unfair dismissal application. It is common for employees to suffer shock and trauma as a result of a dismissal.[4] Whilst I accept that Mr Palmer was seeing a psychologist prior to and after the date of dismissal, and that it was suggested that he tended to 'ruminate and over think things', there is no evidence before me as to the impact of Mr Palmer's medical condition or how it prevented the filing of an unfair dismissal application within the time allowed. The Applicant's capacity to engage in a Surf Life Saving Course and undertake physical activities appear to be at odds with the suggestion that his medical condition prevented the timely lodgement of an unfair dismissal application.
Whether the person first became aware of the dismissal after it had taken effect
[17] Mr Palmer was aware of the dismissal on 27 November 2019. This factor weighs against a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
[18] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[5]
[19] There was no other action taken to contest the dismissal and this factor is a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay)
[20] Prejudice to the employer will weigh against granting an extension of time.[6] However, the "mere absence of prejudice to the employer is an insufficient basis to grant an extension of time".[7] A long delay gives rise "to a general presumption of prejudice".[8]
[21] There is no submission that the granting of an extension of time represents prejudice to the Respondent and accordingly this factor is a neutral consideration.
[22] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.
Fairness as between the person and other persons in a similar position
[23] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[9] considered this criterion and said (at [41]):
"Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission."
[24] I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
[25] Having considered Mr Palmer's circumstances against all of the criteria listed above, I am not satisfied that Mr Palmer's circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order[10] reflecting this decision will be issued.
[4] Rose v BMD Constructions Pty Ltd [2011] FWA 673
[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
[8] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Printed by authority of the Commonwealth Government Printer
Marcus Palmer
The Salvation Army [2020] FWC 834
(1989) 167 CLR 372
(2004) 223 CLR 513
(1995) 67 IR 298
(1996) 186 CLR 541