Fair Work Act 2009

s.365 - General protections

Recruitment Solutions (A Division of Chandler Macleod Pty Ltd)

Application to deal with contraventions involving dismissal - request for an extension of time - application filed 27 days late - two respondents named as "employers" - labour hire - application dismissed against Commonwealth as not an employer of the applicant - medical evidence relied upon to assert incapacity not credible and does not disclose requisite incapacity - no exceptional circumstances - application dismissed.

• [1] On 11 August 2021, Ms Rachel Harrison (Applicant) filed a general protections involving dismissal application (Application) with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009.

• [2] The Application names two "employers" as Respondents, the Commonwealth of Australia as represented by the Department of Health (Commonwealth), and Recruitment Solutions (A Division of Chandler Macleod Pty Ltd) (Recruitment Solutions).

• [3] Two days of hearing were conducted in this matter, on 27 September 2021, and 14 October 2021. On 27 September 2021, the Applicant appeared for herself; Mr Bede Gahan, Partner, HWL Ebsworth Lawyers, appeared with permission on behalf of the Commonwealth;[1] and Mr Rob Harden, Manager People & Culture, appeared for Recruitment Solutions. On 14 October 2021, the Applicant again appeared for herself, and Mr Harden continued his appearance for Recruitment Solutions.

• [4] At the hearing on 27 September 2021, it was not disputed by any of the parties that:

(a) Recruitment Solutions provides labour hire services to the Commonwealth via worker placements;

(b) Recruitment Solutions was the Applicant's employer;

(c) the Applicant was placed with the Commonwealth as part of a contractual labour hire arrangement between Recruitment Solutions and the Commonwealth;

(d) the Commonwealth has never been the Applicant's employer (i.e. there has never been an employment contract or employment relationship between the Commonwealth and the Applicant); and

(e) the Commonwealth could not, and did not, "dismiss" the Applicant, meaning that the Commonwealth has taken no "adverse action" against the Applicant for the purposes of the Application (being a general protections application involving dismissal).[2]

• [5] Having regard to the foregoing uncontested facts, which I accept on the evidence before me and make findings accordingly, the Commission has no jurisdiction to entertain the Application as its concerns the Commonwealth.[3] On 27 September 2021, I issued an Order [PR734316] dismissing the Application as it concerns the Commonwealth.[4]

• [6] Section 366(1) of the Act provides that an application under s.365 must be made within 21 days after a dismissal takes effect, or within such further period as the Commission may allow (subject to satisfaction as to "exceptional circumstances (s.366(2) of the Act)). As the Full Bench has stated, "[t]he 21-day period prescribed... does not include the day on which the dismissal took effect."[5]

• [7] The Applicant commenced her employment with Recruitment Solutions on 23 June 2021. Her employment ceased with Recruitment Solutions that same day (i.e. 23 June 2021). It is not in dispute that the Applicant was made aware by Recruitment Solutions that her employment had ceased on 24 June 2021.[6] The total period of the Applicant's employment with Recruitment Solutions was one day. The Applicant was terminated during her probation period.

• [8] Given that the Application was filed on 11 August 2021, it has been filed 27 days outside of the 21-day time limit. The Applicant should have filed her Application on or before 15 July 2021 to be within the 21-day time limit.[7]

• [9] After the Application, as it involved the Commonwealth, was dismissed,[8] the matter was listed for hearing to determine whether to grant the Applicant an extension of time to file her Application.[9]

• [10] On 4 October 2021, Recruitment Solutions raised a jurisdictional objection to the Application, being that the Applicant was not "dismissed" within the meaning of s.386(1) of the Act. I granted leave for Recruitment Solutions to press its no-dismissal jurisdictional objection, and to rely upon its amended submissions, and supplementary submissions dated 4 October 2021. I also granted leave for the Applicant to file and serve any supplementary evidence and/or submissions, limited to the no-dismissal jurisdictional objection.

• [11] In preparing this decision, I have formed the view that it is unnecessary for me to resolve the no-dismissal objection. In this regard, it is not in dispute that Recruitment Solutions orally communicated its decision to end its relationship with the Applicant on 24 June 2021.[10] Given this fact, even if I find that the Applicant has been dismissed, I still need to determine whether or not there are exceptional circumstances enlivening my discretion to extend time (based upon an agreed dismissal date of 24 June 2021). I therefore consider this to be an appropriate case to resolve the extension of time request only, giving the Applicant the benefit of the doubt as to her having been "dismissed". In my view, this approach is consistent with the decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[11]:

"In an appropriate case, it may also be permissible for the FWC to determine that the employment came to an end on a particular date without deciding whether or not the applicant was "dismissed" with the meaning of s 386 of the FW Act. In such a case it may be permissible to refuse to grant an extension of time even assuming, for the employee's benefit, that there was indeed a dismissal."[12]

• [12] It is equally consistent with the comments of Callinan J in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd[13], where his Honour states:

"But as a general proposition, all civil courts, including intermediate appellate courts, should confine themselves to the issues which are necessary for the disposition of the case."[14]

• [13] Following the hearing on 14 October 2021, after both parties had closed their evidentiary cases and made final submissions, I reserved my decision. However, in the afternoon of 14 October 2021, post my decision being reserved earlier that day, Ms Harrison forwarded an email to my Chambers attaching a further medical certificate in support of her reasons for delay. This triggered various further email communications to Chambers from both parties. I did not give prior leave to Ms Harrison to submit any further evidence or submissions post reserving my decision, nor did Ms Harrison seek such leave.

• [14] In my view, the provision by a party of further evidence or submissions post judgement being reserved, and absent first seeking and obtaining relevant leave to do so, should be strongly condemned. As the High Court said in Re Application by the Chief Commissioner of Police (Vic)[15]:

"Where leave has not been given publicly for supplementary submissions and evidence, the provision of such material to court registries without permission of the court, publicly signified, is a derogation from the principle of the open administration of justice. It should not occur. If new points of importance arise in the case whilst a matter stands for judgment, the proper course (unless statute or court rules permit otherwise) is for the proceeding to be relisted so that an application to enlarge the record can be made and determined in open court."[16]

(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."

• [16] 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..."[17]

[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."[18]

• [17] The matters under s.366(2)(a)-(e) of the Act need to be considered separately, and in combination. In this regard, I refer to the decision of the Full Bench of this Commission in Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters:[19]

"[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.

[19] To take a matter into account means that the matter is a 'relevant consideration' in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:

'To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant'.

[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."[20]

• [18] 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 (Bianco Mamo), as follows:[22]

"[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."

• [19] 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.[23] 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.[24]

• [20] The Applicant's reasons for delay are set out in an email from the Applicant to the Commission dated 20 August 2021, as follows:

"Medical illness suffered between the period June 23 - present date, but specifically

suffered between the period June 23-July 14, 2021, then between July 14, 2021- present

Previously lodged online prima facie anti-bullying application (AB 2021/40) 4 days out

of time on 18 July, 2021, withdrawn on 21 July, 2021 due to incorrect jurisdiction advised by FWC;

Technical issues lodging both online applications in portal as well as medical illness

Drafted original F80 fee waiver application and signed it on 7 July, 2021 within time limit, but encountered technical issues lodging the online application in the portal. Sought legal advice and required assistance from the FWC to file application in correct jurisdiction.

Second General Protections Unfair Dismissal (s340) application (C2021/4727) filed 28 days out of time on 11 August, 2021 due to the above-mentioned exceptional circumstances.

Filed current (General Protections Unfair Dismissal application with FWC on 11 August, 2021."

• [21] The Applicant filed submissions with the Commission on 10 September 2021 which expanded upon the foregoing reasons, as follows:

"2. Jurisdictional objection - the applicant refutes the Respondent's argument on the basis that:

3. 1. the applicant, as evidenced by medical evidence requested after 2 medical appointments yesterday to be sent via email the two medical certificates/reports to assist the commission was suffering from a known medical condition and mental illness at the time she was to file her s340 application within the 21 days' time limit which caused her inability to concentrate and difficulty filing the application within 21 days;

4. 2. the applicant filed an application in the incorrect jurisdiction 4 days out of time and was also covered by medical documentation for her illness at this time and received advice from the FWC, taking necessary steps to remedy her application and file it in the correct jurisdictions;

5. 3. the delayed advising the applicant of the unfair termination applicant contested almost immediately the unfair termination of her employment with the Commonwealth - the employer and;

6. 4. it was prudent to escalate the applicant's formal complaint raised with the Commonwealth to their bodies as there was no response forthcoming as she was advised, including to OnQ Recruitment contesting the unfair termination;

7. 5. Delay in the Commonwealth advising [Recruitment Solutions] about the termination of the contract by one day, as the Commonwealth advised me the termination took place on 23 June, 2021. My exceptional circumstances, being medical illness and heavily impacted during COVID after the unfair termination of my APS Level 6 contract to commence on June 23, 2021 with [Recruitment Solutions];

8. 6. the applicant submits also that previous submissions filed with the Commission and on the Respondents have provided exceptional circumstances, medical illness as reasons for the 27 day delay in filing the application and such submissions have also provided case law addressing the reasons for delay;

9. 7. The applicant submits that the case is highly meritorious, is a Bona Fide case and the extension of time is simply a technical issue which where the applicant has taken all necessary steps despite being unwell to rectify and file her application in the correct jurisdiction which are all valid reasons as to satisfy the Commission to grant the applicant an extension of time to

10. 7. The applicant took all reasonable steps with the employer directly to resolve this matter before commencing an application in the Commission which is why this is a Bona Fide case and has merit;

11. 8. The applicant suffered circumstances which fall within the definition of exceptional circumstances throughout the relevant period she was to file her application as evidenced by medical documentation;

12. 9. Exceptional circumstances: Medical illness suffered between the period June 23 - present date, but specifically suffered between the period June 23-July 15, 2021, then between July 14, 2021- present which rendered her incapable of filing her application within time and in the correct jurisdiction supported by medical evidence;

13. 10. The applicant previously lodged online prima facie anti-bullying application (AB 2021/40) 4 days out of time on 18 July, 2021, withdrawn on 21 July, 2021 due to incorrect jurisdiction advised by the FWC;

14. 11. Technical issues lodging both online applications in portal as well as medical illness suffered further causing the delay;

15. 12. The applicant drafted her original F80 fee waiver application and signed it on 7 July, 2021 within time limit, but encountered technical issues lodging the online application in the portal. Sought legal advice and required assistance from the FWC to file application in correct jurisdiction;

16. 13. The applicant submitted her second General Protections Unfair Dismissal (s340) application (C2021/4727) filed 28 days out of time on 11 August, 2021 due to the above-mentioned exceptional circumstances.

17. 14. The applicant filed current (General Protections Unfair Dismissal application with FWC on 11 August, 2021.

18. 15. Therefore, given all these arguments and specifically exceptional circumstances of medical illness, the applicant humbly submits this is a Bona Fide case and it is prudent for the Commission to hear her case and grant her an extension of time due to these exceptional circumstances as similar cases are illustrated by the case law provided to assist the Commission below and these are valid reasons as to why my application should be heard in the Commission and not dismissed.

19. 16. My 'Bona Fide', highly meritorious case as I am able to convince the Commission with further argument as demonstrated similarly in: "Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394 (Lawler VP, 25 February 2010)". 'it was clear that the employee took action to contest his termination of employment almost immediately'.... Within a few days of the termination, I lodged a formal complaint with the employer, the Chandler Macloed on 28 June, 2021 disputing the termination and attempts to resolve the matter as advised by the employer that frivolous and vexatious, slanderous comments unsupported by any evidence were placed on my file with [Recruitment Solutions] in retaliation by the EL2 supervisor who engaged in workplace bullying and harassment prompting me to lodge the prima facie first anti-bullying application with the EL1 right in front of me as I worked and made comments about me and my work including: "She is very intense and her work is really high-level", as well personal comments about my professional work attire, dress and my father who worked for the same department as a Senior Manager for over 25 years, completing all the work successfully and extra work to assist new starters onboarding. Also subjected to further workplace bullying and harassment at workplace of [Recruitment Solutions] and to the extent of being falsely accused of stealing items - stories about a scarf belonging to a woman on leave and a missing headphones cable as well as asking my former partner who returned the headphones and cable if he was my partner and where I was employed."

• [22] The Applicant also relied upon a Witness Statement from a Mr Rory O'Connor, "Senior Counsel",[25] dated 26 March 2021, and various medical certificates and letters from medical practitioners. She also filed further submissions with the Commission outside of Directions issued and beyond extensions granted (dated 13, 14 and 20 September 2021), which in essence repeat the points made in her submissions previously filed with the Commission.

• [23] In Bianco Mamo, Deputy President Easton outlined issues associated with mental 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)."[26]

• [24] I concur with and adopt the foregoing principles.[27]

• [25] In support of her asserted reasons for delay, the Applicant has provided the following medical evidence:

a) Medical Certificate of Dr Cathy Shannon, dated (unclear) February 2021, certifying that the Applicant is "suffering from a psychological condition for which she is taking medication...[which] has caused unfortunate gastro-intestinal side-effects";

b) Letter from Dr Georgina Flanagan, dated 16 August 2021, certifying that the Applicant "has been unwell since 1st of April 2021 after losing her job. She was re-employed but lost another job on the 13th June which exacerbated her depression and was commenced on agomelatine since the 22nd of June 2021. She has been unable to work from the 13th June 2021 until the 11th July 2021 due to ongoing depression.";

1. Medical Certificate from Dr Christopher Tong, dated 9 September 2021, declaring the Applicant as unfit for normal study/work from 8/09/21 until 9/09/21 inclusive (and also noting that the first consultation with the Applicant was on 22 June, prior to her dismissal);

d) Letter from Ms Vicki de Prazer, Senior Psychologist, dated 10 September 2021, who confirms that she met with the Applicant on that day, at which time the Applicant "reported a history of Anxiety", was "very overwhelmed and distressed" and "reports this level of distress has affected her ability to complete and submit documents to the FWC";

e) Letter from Dr Christopher Tong, dated 24 September 2021, confirming that the Applicant is on medication prescribed for an ongoing medical condition, and that the Applicant reported to him that the "medication has had side effects resulting in lethargy and adversely affecting some administrative duties including filing of documents from 10/9/21 to 27/9/21 inclusive"; and

f) Letter from Dr Georgina Flanagan, dated 24 September, noting that the Applicant "is suffering from increasing anxiety and depression with severe situational stresses", and that "the antidepressant she started has impaired her ability to think clearly and has had difficulty lodging and filing her documents on time which has caused the delay from the 10th September 2021".

• [26] In my view, the medical evidence relied upon by the Applicant (to justify her delay, or otherwise explain it) is deficient in a number of respects. Firstly, the majority of the medical evidence appears to attempt to explain the various delays that the Applicant experienced in complying with directions issued in this matter, rather than accounting for the period between 24 June and 15 July 2021 (when the Applicant should have filed her Application). Secondly, three of the medical documents relied upon refer to dates that precede the Applicant's dismissal. Thirdly, although the medical evidence refers to the Applicant self-reporting anxiety, depression, distress, stressors, lethargy and gastro-intestinal issues over a period of many months, this evidence does not at any point indicate the actual level of incapacity suffered or experienced by the Applicant.

• [27] On the issue of the Applicant's asserted incapacity, also of significance is the evidence relied upon by Recruitment Solutions that sets out the various and extensive communications that the Applicant engaged in, with employees of both Recruitment Solutions and the Commonwealth, during and after the 21-day period post her cessation of employment.[28] This includes clear evidence of the Applicant "writing letters, sending emails and SMS, seeking legal advice, and allegedly lodging applications in other tribunals" throughout the month of July 2021.[29]

• [28] At the hearings on 27 September and 14 October 2021, I raised with the Applicant the fact that her medical evidence in support of her reasons for delay appeared to be unsatisfactory.[30] In her oral submissions before me on 14 October 2021, the Applicant did not offer any further reasons for the delay other than what she had already been submitted in writing and relied heavily on her assertions regarding the merits of her Application.

• [29] In my view, none of the reasons identified by the Applicant, having regard to the case law, are special, unusual, or uncommon. The medical evidence relied upon does not indicate any incapacity on the part of the Applicant, nor does it account for her delay in filing her application, during the 21-day period, or after the time that the 21-day period expired. Further, it is abundantly clear on the evidence before the Commission, that the Applicant was actively engaged in efforts to dispute her termination throughout late June, all of July and into early August 2021 (i.e. during the precise period in which she asserts that her illness gave rise to such incapacity that it prevented her from filing her Application with the Commission). In summary, the medical evidence relied upon by the Applicant is not, in my view, 'credible' to the extent that it grounds the Applicant's asserted reasons for delay based upon medical incapacity.

• [30] I note that the Applicant has provided no evidence of the purported technical issues in lodging her Application with the Commission. Nor does she rely upon any evidence (beyond her own assertions) of the purported previous or other applications (concerning bullying) that she says she attempted to file with the Commission prior to 11 August 2021.[31] In any event, given the delay of 27 days in filing her Application, in my view, neither of these matters provide a credible explanation for delay.[32]

• [31] Finally, I note that on 14 October 2021, after the conclusion of the second day of hearing, and after I had reserved my decision, the Applicant submitted one last Medical Certificate from Dr Georgina Flanagan, dated 14 October 2021, which reads as follows:

"1. Rachel successfully commenced and completed the same work as the second contract with Dept. Health to commence on June 23, 2021 on an initial contract with Chandler Macleod in November, 2020. Please remove Oct 20 -Jan 2021.

2. Rachel was specifically very ill and required ongoing treatment and medication and was suffering from a psychological condition between June 23 - July 15, 2021 which heavily impacted her ability to file and submit documents in the FWC as well as after July 15, 2021to August 11 and then to the present date and this medical certificate covers her for the entire period of her illness."

• [32] There are several observations to be made about the provision of this medical certificate (in addition to what I have already said in paragraphs [13] to [14] of this decision). Firstly, the medical certificate was filed after both parties had closed their respective cases, and my decision had been reserved, thus denying the Respondent the opportunity or ability to verify the authenticity of the medical certificate, or otherwise test it by way of cross-examination. Secondly, the contents of the medical certificate are essentially reflective of discussions I had with the Applicant during the hearing on 14 October 2021.[33] Thirdly, the contents of the email attaching the medical certificate contain representations and submissions, and ask that I use this new medical certificate to replace an earlier medical certificate absent consent from Recruitment Solutions. Fourthly, the first paragraph of the medical certificate contains opinions or assertions that I do not accept Dr Flannagan is in a position to provide.[34] Fifthly, even if I was to accept the contents of the medical certificate, it still fails to indicate or identify the level of the Applicant's incapacity such that it can be said to explain the Applicant's inability or failure to file her Application within or post the 21-day time period.

• [33] All in all, on the evidence before me, I find that that the reasons advanced by the Applicant to explain her delay in filing her Application are unsatisfactory and inadequate. They weigh against any finding as to the existence of exceptional circumstances.

Action taken by the Applicant to dispute her dismissal[35]

• [34] The Applicant actively disputed her dismissal with Recruitment Solutions. The evidence identifies numerous communications between the Applicant and Mr Neville Smith of Recruitment Solutions between 23 June and 29 June 2021,[36] including the Applicant asserting in such communications that she would be taking legal action in relation to her dismissal in the Fair Work Commission and other Tribunals.[37] The evidence highlights that the Applicant was aware that she had legal avenues open to her to challenge her dismissal as early as 23 June 2021.[38] It equally discloses that the Applicant became aware on 29 June 2021 that Recruitment Solutions would not be reversing or otherwise changing its position on the Applicant's cessation of employment. In my view, the foregoing matters do not constitute a basis upon which the Applicant's delay in filing her Application is to be excused. Rather, they make this criterion one that weighs against any finding as to the existence of exceptional circumstances.

• [35] Recruitment Solutions submitted that "prejudice to the employer arises if this application is accepted out of time and the employer is forced to expend the time and resources to defend a meritless application".[40] Whilst that may be so, in my view, the prejudice identified is not beyond that encountered by an employer faced with a general protections application filed within time.

• [36] The absence of prejudice to a respondent is not uncommon, but neither is such absence of prejudice a factor automatically weighing in favour of a finding as to exceptional circumstances, or a discretionary grant of an extension of time (after a finding as to the existence of exceptional circumstances has been made). I therefore treat this criterion as a neutral consideration.[41]

• [37] The principles stated Kyvelos v Champion Socks Pty Ltd[43] (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 ...".[44]

• [38] In Kornicki v Telstra-Network Technology Group,[45] the Full Bench of the Australian Industrial Relations Commission 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 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."[46]

• [39] In her Application, the Applicant relevantly makes the following allegations:

(a) during her employment with Recruitment Solutions, the Applicant had a "workplace right" to make a complaint or inquiry in relation to her employment (s.341(1)(c) of the Act);[47]

(b) during her employment with Recruitment Solutions, the Applicant exercised her workplace right by making a complaint or inquiry in relation to her employment (s.340 of the Act);

(c) "adverse action", in the form of "dismissal", was taken against the Applicant by her employer, Recruitment Solutions (See Item 1(a) of the table set out under s.342(1) of the Act);[48]

(d) the adverse action that was taken against the Applicant by Recruitment Solutions was taken because she exercised her workplace right; and

(e) in view of (a) to (d) above, Recruitment Solutions has contravened s.340 of the Act.[49]

• [40] For its part, Recruitment Solutions says:

(a) it has taken no adverse action against the Applicant, in that it has not "dismissed" her;

(b) the Application shows that no allegations concerning general protections matters have been made against Recruitment Solutions; and

(c) the Application does not provide any case to answer by Recruitment Solutions and is thus "completely devoid of merit".[50]

• [41] The merits of the substantive case in this matter, including the allegations and counter assertions, have not been fully tested before me. It is not the role of the Commission to "embark [upon] a detailed consideration of the substantive case" for the purpose of determining whether to grant an extension of time to an applicant to lodge their application.[51] That said:

(a) Recruitment Solutions has a seriously arguable case that it did not dismiss the Applicant by reference to the terms of the employment contract between the parties;

(b) the evidence appears to disclose that the operative reason for the cessation of the Applicant's employment with Recruitment Solutions is not a prohibited reason (i.e. the labour hire client (the Commonwealth) was not prepared to continue with the Applicant's placement);[52] and

(c) even taking the Applicant's case at its highest, on that basis that liability is to be assumed as proven, her period of employment with Recruitment Solutions was one day; the Applicant was serving a probation period at the time of her dismissal; the Commonwealth was not interested in the Applicant continuing in her placement at its workplace; Recruitment Solutions (at the time it engaged the Applicant) was not aware of the Applicant's previous history with the Commonwealth; and there is clearly significant animosity between the parties (much of which appears to have been inflamed by the Applicant's post-employment communications with both Recruitment Solutions management, and other employees of the Commonwealth).[53] The short point is that even if the Applicant were to be successful on the question of liability, her prospects of being awarded any damages or compensation (at all) are less than slim.

• [42] All in all, whilst on the evidence before me it might be appropriate for me to conclude that there are significant misgivings as to the Applicant's case on the merits (from both a liability and remedy perspective), 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 for the purposes of this decision.

Fairness as between the Applicant and other persons in a similar position[54]

• [43] 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.[55] 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.

• [44] Taking into account the criteria set out under s.366(2)(a)-(e) of the Act:

(a) none of the criteria, considered individually, point towards there being any exceptional circumstances; and

(b) considering the requisite criteria on a collective basis, there is no basis for me to find that exceptional circumstances exist (i.e. two criteria weigh against a finding as to the existence of exceptional circumstances, and three criteria are neutral).[56]

• [45] 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 warranting the grant of an extension of time for the Applicant to file her Application.[57] In view of this finding, there is no basis at law for me to grant an extension of time. I therefore decline the Applicant's request for an extension of time. The Application filed by the Applicant on 11 August 2021 is dismissed, and an Order to this effect will be published contemporaneously with this decision.

Mr Bede Gahan, Partner, HWL Ebsworth Lawyers, on behalf of the Commonwealth of Australia as represented by the Department of Health.

Mr Rob Harden, Manager People & Culture, on behalf of Recruitment Solutions (A Division of Chandler Macleod).

[1] Transcript, 27 September 2021, PN17-PN19.

[2] Transcript, 27 September 2021, PN121-PN160. See also Court Book (CB) One, pp.182-184 and 303.

[3] See s.365(a), and s.12 (meaning of "dismissal" as defined by s.386) of the Act.

[4] Transcript, 27 September 2021, PN160.

[5] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, at [10]. See also s.36(1) of the Acts Interpretation Act 1901 (as in force on 25 June 2009), and s.40A of the Fair Work Act 2009.

[6] Transcript, 27 September 2021, PN116; Transcript, 14 October 2021, PN17-PN55, PN73-PN76; CB One, p.332, first paragraph of email dated 24 September 2021 (5.56PM) from Applicant to Chambers of Deputy President Boyce.

[7] Transcript, 14 October 2021, PN58-PN77.

[8] See paragraphs [4] and [5] of this decision.

[9] Transcript, 27 September 2021, PN160.

[10] Transcript, 27 September 2021, PN116; Transcript, 14 October 2021, PN17-PN55, PN73-PN76; CB One, p.332, first paragraph of email dated 24 September 2021 (5.56PM) from Applicant to the Chambers of Deputy President Boyce.

[11] (2020) 300 IR 146; [2020] FCAFC 152.

[13] (2006) 231 ALR 663; [2006] HCA 55.

[15] (2005) 214 ALR 422; [2005] HCA 18.

[16] Ibid, at [54]. See also Carr v Finance Corporation of Australia Ltd (No 1) (1980) 147 CLR 246; [1981] HCA 20.

[17] [2011] FWAFB 975.

[19] [2018] FWCFB 901.

[20] Ibid, at [17], [19], [38]-[39].

[21] Section 366(2)(a) of the Act.

[22] [2021] FWC 3903.

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

[25] Mr O'Connor appears to be a "Special Counsel" at Sparke Helmore Lawyers (see https://www.sparke.com.au/people/rory-oconnor/).

[26] [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.

[27] 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.

[28] Amended Submissions of Recruitment Solutions, filed 4 October 2021, at [15] to [34]; Attachments CMG 3 through CMG 10.

[29] Amended Submissions of Recruitment Solutions, filed 4 October 2021, at [31].

[30] Transcript, 27 September 2021, PN77-PN122; Transcript, 14 October 2021, PN46-PN69.

[31] The Commission's electronic records do not contain any record of the Applicant filing, or attempting to file, any other applications against Recruitment Solutions.

[32] See Robertson v Zeugma Electrical and Communications Services Pty Ltd [2010] FWA 4525; Thai Luu v Employsure Pty Ltd [2021] FWC 2599, at [28].

[33] Transcript, 14 October 2021, PN46-PN69.

[34] Note also email exchanges in CB Two, pp.95-96, and 105-109.

[35] Section 366(2)(b) of the Act.

[36] Amended Submissions of Recruitment Solutions, filed 4 October 2021, [57]-[58]; Attachments CMG 2 to CMG 4.

[37] Ibid, at [56]; Attachment CMG 4.

[39] Section 366(2)(c) of the Act.

[40] Amended Submissions of Recruitment Solutions, filed 4 October 2021, at [59].

[41] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, at [38]).

[42] Section 366(2)(d) of the Act.

[43] (1995) 67 IR 298.

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

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

[47] Section 341(1)(c) of the Act.

[48] Section 342(1) of the Act, Item 1(a) of the table.

[49] See Item 3.2 of the Form F8 filed by the Applicant.

[50] Amended Submissions of Recruitment Solutions, filed 4 October 2021, at [60]-[62].

[51] Kyvelos v Champion Socks Pty Ltd, Print T2421, at [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, cited in Byron Stephen Gill v IFM Services Pty Ltd [2021] FWC 5962, at [33].

[53] See, for example, CB One, pp.72, 76, 82, and 89-90.

[54] Section 366(2)(e) of the Act.

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

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

[57] 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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