Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Family Clinics Armadale Pty Ltd, Sally Dawn Lapin

Application to deal with contraventions involving dismissal - application for an extension of time - application dismissed.

• [1] On 4 July 2024, Mrs Michela Luppino (the Applicant) lodged a general protections application against Family Clinics Armadale Pty Ltd (the First Respondent) and Sally Dawn Lapin (the Second Respondent) under s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging that on 7 June 2024, she was dismissed by the Respondents in contravention of the general protections provisions of the Act.

• [2] On 16 July 2024, the Second Respondent filed a Form F8A Response and raised a jurisdictional objection on the basis that Mrs Luppino was not an employee of the Second Respondent, and that the application was made outside the 21-day requirement.

• [3] On 23 July 2024, the First Respondent filed a from F8A Response and raised a jurisdictional objection on the basis that the application was made outside the 21-day requirement.

• [4] The Act provides that an application for remedy under the general protections provisions, involving dismissal, pursuant to s.365 of the Act must be made within 21 days after the dismissal took effect.[1] However, the Commission may allow a further period for the application to be made in exceptional circumstances.[2]

• [5] As a result of the decision in Coles Supply Chain Pty Ltd v Milford,[3] I am required to determine the jurisdictional objection, extension of time, before I can exercise powers under s.368 of the Act to deal with the dispute about whether the dismissal was in contravention of the general protections provision.

• [6] On 8 August 2024 (later amended on 3 September 2024), I issued directions and advised that the extension of time issue would be considered at a Video Hearing on 4 September 2024 (later adjourned to 12 September 2024). 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.

• [7] A Hearing was conducted by way of video conference on 12 September 2024. A video file record of the Hearing was kept.

• [8] Ms Sara Mansour sought leave to represent the First Respondent. Ms Lapin appeared and represented herself, as did the Applicant, Mrs Michela Luppino.

• [9] Ms Mansour was granted permission to be represented on the basis that it would allow the matter to be conducted more efficiently, given the relative complexity of the matter, as per s.596(2)(a) of the Act.

• [10] A digital court book was compiled from the material that was filed by both parties, and was distributed to the parties prior to the hearing, however, was not accepted by the parties into evidence. To the extent relevant, I rely on the digital court book as a record of the material filed by the parties with appropriate weight being given to all the material after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).

• [11] Mrs Luppino presented at the hearing and presented herself in proceedings, giving her evidence and submissions under affirmation to the Commission. In addition to her oral evidence, Mrs Luppino provided a series of emails and supporting materials, including a mental health assessment, dated 26 September 2023, and a letter from her treating Psychologist, dated 10 June 2024. A summary of her position is set out below relevant to the question of extension of time:

• The principal reason for her delay in filing is that she is suffering from depression, anxiety and that as a consequence struggles to cope with what might otherwise be simple functions, including meeting deadlines.

• The personal and financial pressures she has confronted, and have impacted her family, since her dismissal have compounded her functional capacity.

• She is not legally represented and has not previously had occasion to deal with FWC processes.

• The health conditions arose because of treatment and issues in the workplace that are the subject of a rejected Workcover Claim that is being reviewed and her general protections application.

• Her application has been filed just 3 seconds late.

• [12] The First Respondent filed written submissions and provided a number of supporting documents and emails. Mr Luke Hurst presented at the hearing and provided sworn evidence in proceedings in further support of his filed witness statements and attachments. Ms Lapin, the Second Respondent, supports the submissions of the First Respondent but maintains there is no employment relationship between the Applicant and her. The position of the Respondents is summarised below:

• The Applicant has a history of failing to meet deadlines and time requirements.

• The Applicant has not provided any independent medical evidence to support her submissions.

• The Applicant has not identified any "exceptional circumstances" to warrant an extension of time.

• The Applicant was able to competently engage with the Respondent during the 21 day period.

• [13] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application if the Commission is satisfied that there are "exceptional circumstances", taking into account the following six criteria:

(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 similar position."

• [14] The test of "exceptional circumstances" establishes a "high hurdle" for an Applicant.[4]

• [15] I have considered the provisions of s.366 of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[5] which stated:

"[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 "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).

[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."

• [16] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[6] A dismissal can be communicated orally.[7]

• [17] In the present matter, the evidence provided by the Respondent and the material filed by Mrs Luppino along with her evidence verify that the Applicant's termination took effect on 12 June 2024.

• [18] This application was lodged with the Commission on 4 July 2024 and was identified to be 3 seconds outside the 21-day time limit and can only proceed if the time limit is extended.

• [19] Section 366(2) of the Act requires the Commission to take account the matters set out in s.366(2)(a)-(e). Below, I have set out my consideration of each of these factors, insofar as they are relevant.

• [20] The delay required to be considered is the period beyond the prescribed 21 day period for making 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 when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 days.[8] In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[9], the Full Bench explained the correct approach by reference to the following example:

"[31] 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."

• [21] An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the Applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[10]

"[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any 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 the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[44] As mentioned earlier, the 'reasons for the delay' is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances."

• [22] Ms Luppino's principal reason for the delay in her application is her mental health condition and its impact on her capacity. That has only been made worse by the impact of the dismissal on her and her family, and further that she has not made an application to the FWC before, has a claim with merit and filed her application only 3 seconds late.

• [23] Supporting this, she has filed correspondence from her treating psychologist, dated 10 June 2024, that states:

"In October 2023, Michela initially presented with various depressive and anxious symptoms, as well as paranoid thinking, which were associated with her experience of work last year. She became clinically depressed and had cognitive deficits and impairment of function.... In April, I assessed her for PTSD... and she has met DSM5 criteria for the diagnosis.

Michela and her family are under significant financial stress due to Michela's inability to work since going off work last year; she is not receiving any source of income or benefits. Unfortunately, she can't afford to attend further psychology sessions with me as she has exhausted all 10 sessions through the MHCP for this calendar year, however she would benefit from ongoing psychological treatment and care. Without this, her recovery will be slower, symptoms likely to exacerbate, and a poorer prognosis."[11]

• [24] I accept this evidence. Therefore, I am satisfied that Mrs Luppino is a person suffering from mental health challenges. However, it does not necessarily follow that I accept Mrs Luppino has provided reasons for the delay that warrant the granting of an extension of time.

• [25] The Respondents submit this is not the case. In support of this position, their evidence and submissions are that Mrs Luppino has a history of missing deadlines. This occurred in her workplace. In evidence, Mrs Luppino acknowledged this to be the case and accepted that her application to Workcover was also filed outside the required timeframe.

• [26] The Respondents also suggest it is significant that during the 21-day period Mrs Luppino continued to engage with Mr Hurst and manage the care of her children. They submit this demonstrates that despite her "purported" mental health condition she still had capacity to take part in regular activities and should have been able to file her application on time. Furthermore, that she was made aware of the 21-day time limit by FWC staff during the filing period, and that there is nothing exceptional about the explanations she has provided to the Commission to explain the delay.

• [27] Mrs Luppino submits it was her mental health challenges and associated impact on her capacity that led to the 3 second delay in the filing of her application to the Commission. She accepts she was aware of the deadline, was made aware what she was required to do but was late because her "condition" meant the preparation and filing of her application took longer than it should have. Further, she submits her circumstances are also that she has been dismissed from her job, has been financially impacted, and has dependent children, in addition to having filed a general protections application for conditions that have arose from her experience at work.

• [28] Critically however, as the Respondent identifies, Mrs Luppino has not presented any medical evidence of exceptional circumstances arising from her mental illness or independent evidence of its impact on her capacity.

• [29] As Deputy President Easton identified in Mamo v ICLED Australia Pty Ltd, it is not necessarily a requirement 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.[12]

• [30] In Mamo at [25], the Deputy President helpfully summaries the following principles to be applied in considering mental illness in the context of exceptional circumstances as follows:[13]

(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 has 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 has an impact on her 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).

• [31] The medical evidence Mrs Luppino has presented is dated 10 June 2024, 2 days before her dismissal took effect but over 2 weeks since 16 May 2024, when she was given notice her termination would take effect on 12 June 2024. While I accept this report provides evidence of Mrs Luppino's condition and challenges, it makes no reference or expresses any opinion on her capacity to lodge a FWC application or otherwise engage in other administrative task.

• [32] In an email to the Commission dated 6 September 2024, Mrs Luppino stated the following:

"I have stated numerous times that I have been diagnosed with anxiety, depression, PTSD.... and provided evidence to support this. Put it simply my brain isn't functioning like it would normally. It takes me hours trying to respond to emails such as the one I'm responding to today...."[14]

• [33] Mrs Luppino also relies on the financial hardship she has endured as a mother of two young children and the impact of the combination of these factors on her ability to file her application within time.

• [34] It is well established that it is not exceptional for a person losing their job to be confronted with financial difficulties. 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. Each circumstance of the ending of a job and its impact will be different and need to be considered on its own merits. The factors confronted by Mrs Luppino are not "unique" or "unprecedented", and I am not satisfied that they satisfy the criteria of being "out of the ordinary course", "unusual" or "uncommon".

• [35] Furthermore, when considered in light of the principles above, the medial evidence Mrs Luppino has presented does not present me any basis to be satisfied that she did not have the mental or physical capacity to commence and complete filing her application within the required timeframe. I have also considered Mrs Luppino's ability to engage with her employer during the application period and this supports this conclusion.

• [36] I have also had regard to the length of the delay - 3 seconds. It could not be much shorter. On its own however, this does not take the matter further, there must be an acceptable reason for the delay.[15]

• [37] In the present case, I am not satisfied Mrs Luppino has provided a credible and reasonable explanation for the period of the delay. As such, this factor weighs against the granting of an extension of time.

366(2)(b) - any action taken by the person to dispute the dismissal

• [38] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[16]

• [39] Mrs Luppino was provided notice of her termination on 16 May 2024. She subsequently sent emails to Mr Hurst seeking to review the basis of the termination decision. The Respondent submits that during this process the Applicant did not need heed the seriousness of the show cause request and the specified time frame to dispute her dismissal.

• [40] While I accept Mrs Luppino has continued to raise additional concerns and missed deadlines, it is also clearly the case that she sought a review of the basis of the decision to terminate her employment. This factor weighs in favour of the granting of an extension of time.

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

• [41] Prejudice to the employer will weigh against granting an extension of time.[17] However, the "mere absence of prejudice to the employer is an insufficient basis to grant an extension of time".[18]

• [42] A long delay gives rise "to a general presumption of prejudice".[19]

• [43] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.[20]

• [44] Mrs Luppino submits there is no prejudice to the employer that would arise from the relatively short delay. The Respondents argue that prejudice would be occasioned if an extension of time is granted because they would "suffer economic hardship and be unfairly prejudiced as a result". Particularly so, as a small business that has already been required to spend substantial time and money defending the Applicant's claims.

• [45] The Commission's consideration of this factor looks to prejudice beyond the usual requirements of having to respond to a claim. In these circumstances, I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that weights in favour of the granting of an extension of time.

• [46] This factor is a neutral consideration.

• [47] The merits of an application are relevant; however, the assessment of the merits for the present purposes is limited to, in effect, a preliminary consideration.[21] Further, the primary consideration is whether the Applicant, Mrs Luppinov has an arguable case.[22]

• [48] In Telstra-Network Technology Group v Kornicki[23] the Full Bench considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench stated:[24]

"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."

• [49] The substantive merits of this application have not been fully tested and as identified by the Full Bench of the Commission in Kyvelos v Champion Socks Pty Ltd, the Commission "should not embark on a detailed consideration of the substantive case" for determining whether to grant an extension of time to an Applicant to lodge their application.[25]

• [50] The Respondents submit, Mrs Luppino's application is without merit and that the substantive and operative reason for her termination was that she was unable to return to work. Mrs Luppino's general protections application identifies a series of contraventions of the general protections provisions she maintains have contributed to her condition.

• [51] The factual context and merits of these respective positions would need to be further scrutinised in this case, including under cross-examination, if an extension of time was granted for the application to proceed. This being the case, I do not consider the merits of the case tell in favour or against the granting of an extension of time. I consider them to be a neutral factor.

366(3)(e) - fairness as between the person and other persons in like position

• [52] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[26] considered this criterion and said:

"[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."

• [53] Mrs Luppino did not identify any matters currently before the Commission, previously decided or persons in similar position to her own case which might be relevant to this consideration.

• [54] The Respondents submit if the Applicant were to be granted an extension of time, she would receive an unfair advantage over others in a similar position to the Applicant because her circumstances are not outside the ordinary course and are therefore not exceptional.

• [55] They maintain that the established principles for the Commission to consider mental illness in instances of exceptional circumstances are well established. I accept these submissions and have set out these principles above. This factor weighs against the granting of an extension of time.

Conclusion: Is the Commission satisfied of exceptional circumstances?

• [56] I have set my findings of each of the statutory factors in 366(2)(a) to (e) of the Act above. Two of these factors specifically point against a finding of exceptional circumstances. Only one factor is supportive, the other two factors are neutral.

• [57] As to the shortness of the delay, I concur with the recent decision of Deputy President Bell in Samatha Jo Peters v Liquorland Pty Ltd[27] when considering a marginally longer delay, citing the Full Bench in Johnstone v Scotch College[28] as follows:

"We note that the statutory requirements as to the time in which an unfair dismissal application may be filed is not a mere technicality. Such time limits are a fundamental party of the statutory framework and must be properly considered by decision makers"

• [58] Having considered all the circumstances of this case within the statutory requirements of s.366(2) I have not been satisfied that there are exceptional circumstances. There is therefore no basis to allow an extension of time and the request is refused. Mrs Luppino's application for the Commission to deal with a dismissal dispute is therefore dismissed.

• [59] An Order[29] reflecting this decision will be issued in conjunction with this decision.

[1] Fair Work Act 2009 (Cth) s366(1)(a). Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6 - where a period of time 'is expressed to begin after a specified day' the period 'does not include that day').

[2] Fair Work Act 2009 (Cth) s366(2).

[3] [2020] FCAFC 152.

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

[5] [2011] FWAFB 975.

[6] Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49].

[7] Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

[8] 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].

[9] [2016] FWCFB 349.

[10] [2018] FWCFB 3288 at [35]- [45].

[11] Email Attachment Letter from Dr Alicia Papas Clinical Psychologist, Court Book pages 13 - 14.

[12] [2021] FWC 3903 at [24].

[14] Email Submissions from the Applicant at [2], Court Book page 22.

[15] See Gostencnik DP in Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479.

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

[19] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at [556].

[20] Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16].

[21] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at [14].

[22] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34].

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

[25] AIRC 10 November 2000 at [14]; See also Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899 at [38].

[26] [2016] FWCFB 6963.

[27] 2024] FWC 1867 at [54].

[28] [2022] FWCFB 179 at [31].

[29] PR779523.

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