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[2022] FWC 967
General information, not legal advice.
Fair Work Commission
2022-05-02
Kirby J
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy - request for an extension of time - no exceptional circumstances - application dismissed
(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:
(a) the reason for the delay; and
(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."
"[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..."[3]
[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."[4]
"[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."
"THE DEPUTY PRESIDENT: So, what do you say changed to allow you to file the application?
MX WITHERS: Time. I just - I was able to complete it when I completed it. Before that I was physically and mentally unable to.
THE DEPUTY PRESIDENT: How do I differentiate between the time you say you became able and the time before on the evidence as to some change in your position?
MX WITHERS: The ongoing treatment that I was receiving helped. There was consistent treatment. It's listed there that there were medication changes.
THE DEPUTY PRESIDENT: So, what document are you referring to there?
MX WITHERS: The 2, I think, March, the emergency department, from December through to March there's different medications listed (indistinct).
THE DEPUTY PRESIDENT: But none of that sort of indicates any level of incapacity.
MX WITHERS: Well, the ongoing medication and the changes, side effects, differentiated the change. I was - it's obviously hard to prove on paper mental health capacity and that's why this is - this feels very unnerving because it's hard to sort of show someone that mental health process has occurred, how they occur and when they occur. So, I was able to submit the application when I was - after working on it as best I could for a period of time. I'm not how to display the mental health aspect of it because it's not a tangible - - -
THE DEPUTY PRESIDENT: So, sorry, when do you say you started working on the application?
MX WITHERS: It was - I can't recall exactly because even beyond that time I was in such physical distress, completely out of it because of medication and because of no sleep, no function (indistinct). So, I can't recall when I began researching and learning what my rights - what position I had, what I could do about my situation. I can't recall the date exactly.
THE DEPUTY PRESIDENT: So, you downloaded a form did you from the Commission. When do you say you did that?
MX WITHERS: I can't recall when I did that exactly. As I say, like it's a process that I was able to do what I was when I could, so it was in - I really can't remember honestly the dates on which I did what exactly."
"MX WITHERS: Yes. So, there's a lot of opinion presented as facts, so the suggestion that my approach has been lax and excuse laden. There's no knowledge of that, that's just opinion rather than fact, and disregards a lot of the facts that I have presented. It says that the specific - in regards to the documents I have sent in, the respondent has said that (indistinct) which is (indistinct) March and beyond the time limit, again obviously indicates that there were issues prevalent during that time. Obviously (indistinct) is after but the need for it was during the time. And I have got that.
As you say the time (indistinct) filing documents I had a lot of trouble getting my discharge history from the hospital but I have that now. Just to sort of factually prove that date of February. So, the medical certificate which is a part of the discharge letter I didn't - that wasn't included as those dates 13 December to (indistinct) December are relevant to this particular matter. That was included as the one document.
They say the clinical visit at 4.45 on 24 February, they've suggested was probably less than an hour, I'm not sure how they would have knowledge of that or why they would make that claim. Again, opinion (indistinct) fact and the appointment was not at 4.45 on the 24th, it was at 3.30. So I'm just not sure where they're getting some of these ideas from. And they've said that it should have been completed by then and that again is personal and unnecessarily - unnecessary opinion that's got no bearing on legitimacy when they believe it should have been completed by 24 February. I just think that's misleading.
My presentation to the emergency department on the 14th, again they've stated it's beyond 25 February. That's as a result of my condition worsening during that period, the 21 day period. That seemed obvious to me that it was - that that was the issue.
The August 2020 documents - they've said the August 2020 documents regarding mental health which was the year before the redundancy is not relevant but I feel like that that's very misguided and very troubling because mental health doesn't occur once and then go away. It's not an issue that - it's prevalent and it's something that I sought treatment for two years ago and that's the evidence that provided. So again I think that that's irrelevant because I had mental health treatment two years ago, it's very strange to me and I feel is inappropriate and speaks to how mental health isn't understood and used against people."[18]
"MR BROSCHOFSKY: In terms of just things in addition to the objection, in addition to those five dot points, namely the spinal surgery date 25th - you know, the medical certificate of December 21, the clinical visit of the 24th, presentation to the ED of 14 March and August 2020 documents regarding his mental health, all of which were outside the 21 days, I do make note of the fact that Ryan was - had the wherewithal on 14 February to work through the significant administrative activities required to prepare (indistinct) separation.
I am aware of that process to some degree and I would argue that possibly, that process possibly would take more forethought, foresight and time administratively than preparing, you know, the required documentation for a Fair Work claim. So he was able to do that within the timeline and actually reasonably quickly after receiving (indistinct) 11 February, yet despite that was unable to submit the documents required within the timeline to prepare the Fair Work administrative activities to make the claim. So I'll make that point. I think that's an important point to make.
In terms of - just in reference to a couple of his comments to my or to the responding objection, he made a comment about opinion. Well, I would counter that by saying that - I know we're not talking about the specific unfair dismissal at the time but his unfair dismissal is full of opinion. In terms of his comment about the 4.45 time on the clinical visit document from the RPA, he mentions 3.30. Well, the 3.30 time was submitted on 13 December 21, not on the visit of 24 February."
THE DEPUTY PRESIDENT: Thank you. Mx Withers, did you have anything to say in response?
MX WITHERS: Yes. I have heard the pronouns he and his were used consistently throughout that. In terms of the Centrelink, I requested the employment separation certificate. That's a process I'm familiar with, I've done that before. I'm familiar with Centrelink. I have applied to Centrelink several times in my life, I'm familiar with those processes. I have in fact presented opinion in my application which I believe a lot of this is, one person's reality, one person's opinion or beliefs, that obviously plays into such claims to some degree. I believe I've submitted it as opinion not as necessarily fact or I haven't claimed to know the motivations necessarily of behind scenes. I've presented, I believe, for the most part what I believe has happened instead of actual presumed knowledge about someone's motivations or personal situations in any way.
The appointment that I have for the specialist was not - that was not at 4.45, I'm not sure why that's being brought up again."[19]
"[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[20] 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.[21]
[22] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting[22] 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]
[23] In Merhi v Commonwealth of Australia[24] 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."[25]
[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)."
Whether the Applicant became aware of the dismissal after it had taken effect[26]
Action taken by the Applicant to dispute his dismissal[27]
"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 ...".[32]
"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."[34]
Fairness as between the Applicant and other persons in a similar position[37]
(a) none of the requisite criteria, considered individually, point towards the existence of 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. one criteria weighs against a finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[39]
Mx Ryan Withers (the Applicant), appeared for themselves.
Mr Peter Broschofsky, Chief Executive Officer, appeared for the Respondent.
[1] Form F2 q. 1.3-1.4 and Form F3 q.1.2-1.3.
[6] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901.
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, at [39].
[10] Form F2 q 1.5. Applicant's email to VP Catanzariti's Chambers dated 18 March 2022.
[13] Applicant's submissions of 4 April 2022.
[15] Respondent's submissions of 5 April 2022.
[20] Glyn Roberts v Westech IT Solutions Pty Ltd [2014] FWC 4226.
[21] Shaw v Australia and New Zealand Banking Group Ltd (t/as ANZ Bank) (2015) 246 IR 362, [2015] FWCFB 287 at [15].
[22] Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting [2015] FWCFB 3435 at [15]- [16].
[24] Linda Merhi v Commonwealth of Australia, represented by Services Australia (formerly the Department of Human
Services) [2020] FWCFB 3523 at [8], [37]-[39].
[27] Ibid s.394(3)(c).
[28] Ibid s.394(3)(d).
[29] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, at [38]).
[33] Kornicki v Telstra-Network Technology Group [1997] 140 IR 1, at 11 (PR3168, 22 July 1997, Ross VP, Watson SDP, Gay C).
[34] Ibid. See also Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, at [36].
[35] Respondent's submissions of 16 March 2022.
[36] 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].
[38] Pitrau v Barrick Mining Services Pty Ltd [2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37].
[39] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901.
[40] Again noting the definition of "exceptional circumstances" set out in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, at [13].
Printed by authority of the Commonwealth Government Printer
Ryan Withers
Contare Pty Ltd [2022] FWC 967
(2015) 246 IR 362
(1995) 67 IR 298
(2012) 255 IR 144