s.394 - Unfair dismissal

Application for unfair dismissal remedy - request for an extension of time - application filed 79 days late - reasons for delay not credible - prejudice to employer - no exceptional circumstances - application dismissed.

• [1] On 17 August 2022, Mr Mohammed El Samman (Applicant) filed an unfair dismissal application (Application) with the Fair Work Commission (Commission) via email. The Respondent to the Application is Sydney Trains (Respondent).

• [2] There is no dispute between the parties that the Applicant was dismissed within the meaning of s.386 of the Fair Work Act 2009 (Act). Nor is there any dispute between the parties that the Applicant's dismissal took effect on 9 May 2022, and that he was notified of his dismissal in writing on that date.

• [3] The Applicant should have filed his Application by 30 May 2022 to be within the 21-day time period. It follows that the Applicant has filed his Application 79 days late, or 100 days after his dismissal took effect.

• [4] An unfair dismissal application must be made within 21-days after a dismissal took effect, or in such further time as the Commission may allow. The 21-day period prescribed in s.394(2)(a) of the Act does not include the day on which the dismissal took effect. Given that the Application in this matter has been filed 79 days outside of the statutory 21-day period, it is necessary that I determine whether to extend the time for the filing of the Application.

• [5] At the hearing, the Applicant appeared for himself, and the Respondent was represented (with permission) by Ms Katie Kossian, Senior Associate, Maddocks Lawyers.

• [6] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are outlined in s.394(3) of the Act, which reads:

(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."

• [7] Granting an extension of time requires me to be "satisfied" that there are exceptional circumstances. The Full Bench of this Commission in Nulty v Blue Star Group Pty Ltd (Nulty), in relation to the term "exceptional circumstances", stated:

"[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] Mere ignorance of the statutory [21-day] time limit in s.366(1)(a) is not an exceptional circumstance..."[1]

[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."

• [8] Each of the individual matters under s.394(3) of the Act need to be considered separately, and in combination. The Applicant bears the onus of establishing the existence of exceptional circumstances.

• [9] In Mohammed Ayub v NSW Trains[2], a Full Bench of this Commission described "exceptional circumstances" (in the context of an out of time application) as being a "very high bar" and "strictly limited".

• [10] On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group[4] (Bianco Mamo), as follows:

"[11] The test invariably applied in such matters is whether an applicant has a 'credible or reasonable' explanation for the delay. The reasonableness of an applicant's explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.

[12] 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. 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).

[13] 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 explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances."

• [11] Reasons for the delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[6]

• [12] Whilst the Applicant did not file any witness statement evidence,[7] the Applicant's reasons for delay are set out in his Form F2,[8] and in his Outline of Submissions dated 21 September 2022. Such reasons, in summary, are:

a) Representative error reason: an alleged lack of assistance from the Rail, Tram and Bus Union (RTBU) in bringing his Application to the Commission, including advice from the RTBU not to lodge his Application whilst the RTBU were negotiating (ON THE Applicant's behalf) a settlement of his disputed dismissal.

b) Settlement discussions reason: a failure or unwillingness by the Applicant to file his claim within the 21-day time limit due to settlement discussions that were on-going with the Respondent about his disputed dismissal;

1. Failure to disclose reason: a failure by the Respondent to supply the Applicant with documents associated with his dismissal, principally, an unredacted investigation report; and/or

d) Health issues reason: health (including mental health) challenges that the Applicant (and his family) were experiencing.

• [13] All in all, on the evidence before me, I find that that the Applicant's reasons for delay are most unsatisfactory. Further, I do not consider them to be reasonable and credible.

• [14] Reliance upon representative error as a reason for the late lodgement of an application was dealt with extensively in Clark v Ringwood Private Hospital (Clark).[9] In Davidson v Aboriginal Islander Child Care Agency[,]1010 (1998) 105 IR 1. a subsequent Full Bench of the Australian Industrial Relations Commission summarised the general propositions in Clark, as follows:

"In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.

(iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be considered."

• [15] The principles espoused in Clark have been considered and applied in various decisions of this Commission.[11] I equally rely upon those principles in this decision.

• [16] As demonstrated in Clark, the conduct of the Applicant is a central consideration in determining the existence of representative error. In this regard, I note that the evidence discloses that the Applicant was repeatedly warned by the RTBU about having only 21-days to file an unfair dismissal application (on 10 and 22 May 2022), and was chased up by the RTBU on 26 May 2022 (four days prior to the end of the 21-day time limit) for information to assist the RTBU in completing and lodging his unfair dismissal application.[12] There is no evidence that the Applicant was responsive to this request for information. Significantly, there is no evidence of any error, let alone representative error, by the RTBU in respect of the delay in the Applicant's Application being filed.

• [17] I equally reject the settlement discussions reason, and the failure to disclose reason, as explanations for the Applicant's delay in filing his Application. There is nothing in the evidence identifying why any settlement discussions delayed or otherwise hampered the Applicant filing his Application. Nor is there any evidence identifying why any failure to produce documents by the Respondent, unredacted or otherwise, caused any delay in the Applicant filing his Application. Indeed, at the time that the Applicant did file his Application, he did not have the unredacted documents he asserts caused the delay in him filing his Application.

• [18] In Bianco Mamo, Deputy President Easton outlined issues associated with illness and/or associated incapacity going to asserted reasons for delay in the filing of an application, as follows:

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

[20] In Roberts v Westech IT Solutions Pty Ltd 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 the applicant's depression. The applicant provided advice from his doctor that included details of the applicant'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 the applicant 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 the applicant's mental health.

[21] 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.

[22] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the applicant 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 the applicant 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."

[23] In Merhi v Commonwealth of Australia 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 the applicant'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."

[24] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However, the practical reality is that without proper and specific medical evidence 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.

(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 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 Underwood and Merhi); and

• (iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood)."[13]

• [19] I concur with and adopt the foregoing principles.[14]

• [20] None of the information or medical evidence relied upon by the Applicant in these proceedings, going to his medical circumstances or condition, identifies that the Applicant was suffering from an incapacity that caused him to be unable to file his Application within the 21-day time limit. Nor does such evidence explain why the Applicant filed his Application 79 days out of time.

• [21] Having found that each of the reasons for delay relied upon by the Applicant do not, or do not sufficiently, explain his delay in filing his Application, I conclude that the Applicant's reasons for delay weigh against any finding as to the existence of exceptional circumstances in this case.

Whether the Applicant become aware of the dismissal after it had taken effect[15]

• [22] The Applicant was aware of his dismissal when it took effect on 9 May 2022. He was also aware prior to his dismissal that the Respondent was proposing to dismiss him. I consider this criterion to be a neutral consideration that weighs neither for nor against any finding as to the existence of exceptional circumstances.

Action taken by the Applicant to dispute the dismissal[16]

• [23] The Applicant disputed his dismissal with the Respondent via an internal appeals process (with the assistance of legal representation). He also disputed his dismissal, with the assistance of the RTBU, via settlement negotiations (which were ultimately unsuccessful). He subsequently advised the Respondent on 20 July 2022 that he would be filing an unfair dismissal application (but did not do so until 17 August 2022). In my view, these facts weigh against any finding as to the existence of exceptional circumstances.

• [24] The Respondent submits that prejudice arises if the Application is accepted out of time because it will be required to expend the time and resources to defend an application lodged well outside (i.e. 79 days) of the statutory (or presumptive) 21-day time period.[18]

• [25] I accept that the prejudice identified by the Respondent in this case is beyond that ordinarily encountered by an employer faced with an unfair dismissal application filed within time. I therefore treat this criterion as one that weighs against any finding as to the existence of exceptional circumstances.

• [26] The principles stated Kyvelos v Champion Socks Pty Ltd[20] (Kyvelos), albeit in relation to a predecessor of the Act, still remain good law and are worth noting and setting out here:

"In considering whether to accept an application which has been lodged outside the time ... the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar ... It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application ... In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case ...".[21]

• [27] In Kornicki v Telstra-Network Technology Group,[22] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to an extension of time under the former s 170CE(8) of the (now repealed) Workplace Relations Act 1996. In that case, the Full Bench said, in respect to the merits of an application:

"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."[23]

• [28] All in all, on the evidence before me, I consider there to be significant misgivings as to the Applicant's case, from both a liability and remedy perspective, especially having regard to the change in his approach (i.e. from one only contesting the harshness of the sanction of his dismissal, to one asserting an absence of a valid reason and procedural fairness).[24] However, given that I am not in a position to properly resolve all of the relevant facts at this stage of proceedings, I treat the merits as a neutral consideration that weighs neither for nor against any finding as to the existence of exceptional circumstances in this case.

Fairness as between the Applicant and other persons in a similar position[25]

• [29] I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[26] Given that neither party made relevant submissions on this issue, and I am not aware of any cases where there have been the same, or similar, characteristics and/or circumstances, I treat this criterion as a neutral consideration.

• [30] Taking into account the criteria set out under s.394(3)(a)-(f) of the Act:

(a) three of the criteria, considered individually, point towards there being no exceptional circumstances; and

(b) considering the requisite criteria on a collective basis, there is no basis for me to be satisfied that exceptional circumstances exist (i.e. three criteria weigh against any finding as to the existence of exceptional circumstances, and the remaining three criteria are neutral).[27]

• [31] On the basis of my reasons set out in this decision and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence of exceptional circumstances. As a matter of law, I am therefore not in a position to exercise any discretion to grant the Applicant an extension of time to file his Application.[28] I dismiss the Application filed by the Applicant in these proceedings on 17 August 2022. An Order to this effect will be published contemporaneously with this decision.

Mr Mohammed El Samman (Applicant) appeared for himself.

Ms Katie Kossian, Senior Associate, Maddocks Lawyers, appeared on behalf of Sydney Trains (Respondent).

[1] [2011] FWAFB 975.

[2] [2016] FWCFB 5500.

[4] [2021] FWC 3903.

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, at [39].

[7] The Applicant filed an Outline of Objections to the Respondent's Submissions.

[11] See: Officeworks Ltd v Parker [2014] FWCFB 5779, at [14]. See also: Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963; Lay v Bar's Leaks (Australia) Pty Ltd [2016] FWCFB 2647.

[13] [2021] FWC 3903, at ]19]-[25]. Whilst this reasoning concerned an out of time unfair dismissal claim, there is no basis to suggest that the same reasoning and principles do not apply to a general protections involving dismissal application that has been filed out of time.

[14] See also, Donna Muir McMeeken v Action Industrial Catering Pty Ltd [2012] FWA 4035; Construction, Forestry, Mining and Energy Union v Crossy's Crane Hire Pty Ltd (t/as Crossy's Crane Hire) [2013] FWC 8866; Byrnes v Department of Broadband, Communications and Digital Economy [2012] FWA 7744.

[18] Citing Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, at 553 and Clarke v Service to Youth Council Inc [2013] FCA 1018, and referencing Trudgett v Training Aids Australia Pty Ltd [2010] FWA 2235, at [20].

[20] (1995) 67 IR 298.

[22] Kornicki v Telstra-Network Technology Group [1997] 140 IR 1, at 11 (PR3168, 22 July 1997, Ross VP, Watson SDP, Gay C).

[23] Ibid. See also Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, at [36].

[26] Pitrau v Barrick Mining Services Pty Ltd [2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37].

[27] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901.

[28] Noting the definition of "exceptional circumstances" set out in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, at [13].

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