The attached document replaces the document previously issued with the above code on 12 August 2024.

Minor typographical, grammatical, and formatting amendments have been made to the following paragraphs: [7], [13], [19], [20], [23], [24], [43], [51], [52], [67] and [69].

[2024] FWC 2134 [Note: An appeal pursuant to s.604 (C2024/5967) was lodged against this decision.]

Fair Work Act 2009

s.394 - Unfair dismissal

• [1] This decision concerns an application by Ms Shiralee Dollar (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) (Application).

• [2] In the Application, the Applicant states that her employment with RG Group Holdings Pty Ltd (Respondent) was terminated with effect from Saturday17 February 2024. The Application was made on 19 June 2024.

• [3] In its Form F3 Employer Response, the Respondent objected to the Application on the grounds that the Applicant was not an employee, that (in the alternative) the Applicant had not completed a period of employment of at least the minimum employment period, and that the Application was not made within 21 days of the 'dismissal'.

• [4] Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Fair Work Commission (Commission) allows pursuant to s.394(3). Having regard to s.36(2) of the Acts Interpretation Act 1901, the 21-day period ended at midnight on 11 March 2024. Therefore, the Application was made 100 days outside the 21-day period. The matter was allocated to my Chambers to determine whether an extension of time will be allowed under s.394(3).

• [5] The matter was heard before me on 9 August 2024.

• [6] I exercised my discretion to grant permission to the parties to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was represented by Mr J Sleight. The Respondent was represented by Mr A Wilson.

• [7] The following materials were admitted into evidence:

• Witness statement of the Applicant (Hearing Book p.48-51) (Exhibit A1);

• Witness statement of the Applicant (Hearing Book p.194-228) (Exhibit A2);

• Witness statement of Rhiannon Dollar, the Applicant's daughter (Hearing Book p.52-56) (Exhibit A3);

• Applicant's Bundle of Documents (Hearing Book p.35-47) (Exhibit A4);

• Letter from Coonamble Aboriginal Health Service authored by Ms Judy Scolari-Gibson, counsellor (Hearing Book p.17-19) (Exhibit A5); and

• Witness statement of Ms Ranjana Malik, sole director of the Respondent (Hearing Book p. 59-181) (Exhibit R1).

• [8] For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.394(3).

• [9] On 5 May 2017, the Applicant commenced working as the general manager at the Coonamble Motel, located at 86 Castlereagh Street, Coonamble, New South Wales (Motel).[1] There was no written contract relating to this arrangement.[2]

• [10] On 31 August 2023, the Respondent entered into a contract to purchase the business of the Motel.[3]

• [11] The sale of business contract records that there were no employees. Ms Malik stated that although she was not provided with any employment records for any person, she was informed by the vendors that the Applicant had been engaged as an independent contractor to manage the Motel.[4]

• [12] On 21 September 2023, the Respondent commenced operating the Coonamble Motel and engaged the Applicant to manage the Motel.[5]

• [13] On or about 21 September 2023, the Applicant and Ms Malik (on behalf of the Respondent), entered into a handwritten agreement which stated:[6]

Agreement between Shiralee Dollar and Ranjana Malilk

We agree the yearly payment of $110,000 including GST to manage Coonamble Motel. This is only a temporary agreement until we have all the terms and conditions agreed upon.

The start date is 21/09/2023 & first payment will be from 21/09/2023 till 24/09/2023 (inclusive). This will be paid on 26/09/2023.

• [14] From 21 September 2023 until 17 February 2024, the Applicant managed the Motel and lived on-site at the Motel.

• [15] On 17 February 2024, Ms Malik met with the Applicant and informed her that the contract to manage the Motel was terminated with immediate effect as the Respondent would be engaging a related entity to manage the Motel.[7] The Applicant received a payment equivalent to two weeks' pay.[8]

• [16] The Applicant was also directed to immediately vacate the premises and could no longer live on-site at the Motel. The Applicant was assisted in moving her belongings out of the Motel by her daughter and a friend, but stated a range of her possessions remain at the Motel and she has not been able to access them.[9]

• [17] The Applicant stated that the circumstances of the termination of her working arrangement and eviction from her living quarters triggered a pre-existing anxiety condition.[10]

• [18] The Applicant made attempts to see a counsellor but could not obtain an appointment with a visiting counsellor until 6 May 2024.[11]

• [19] The Applicant stated that although she was extremely anxious and perturbed by the termination of her working arrangement, she had no choice but to prioritise searching for new employment and that she dedicated her efforts to doing so.[12] This included liaising with Centrelink, and job search agencies, directly applying for work, and completing at least one training course.[13]

• [20] On or about 11 March 2024, the Applicant telephoned 'Fair Work Australia'. The Applicant stated that she explained her situation and was informed that as the Respondent had told her she was an independent contractor, she did not have any "right of redress." The Applicant stated that she was also informed of the 21-day period for making an unfair dismissal application. The Applicant stated that she was led to believe that she was in eligible to make 'a claim'.[14]

• [21] On 6 May 2024, the Applicant attended an appointment with a counsellor at the Coonamble Aboriginal Health Service.[15]

• [22] On or around 20 May 2024, the Applicant engaged legal representation.[16]

• [23] From on or about 26 May 2024, a number of the Applicant's relatives have suffered medical episodes, required surgery, or contracted a serious illness. The Applicant provided assistance to her relatives through transporting them to and from medical appointments, providing care and support, and looking after her grandchildren which diverted her time and attention from making the Application.[17]

• [24] On 3 June 2024, the Applicant attended an appointment with a counsellor at the Coonamble Aboriginal Health Service.[18]

• [25] On 19 June 2024, the Application was made.

• [26] The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[19] Exceptional circumstances may 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 can be considered exceptional.[20]

• [27] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [28] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(f) fairness as between the person and other persons in a similar position.

• [29] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.

• [30] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an unfair dismissal application.[21]

• [31] I now consider these matters in the context of the application.

• [32] The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, however all of the circumstances must be considered.[22]

• [33] The Applicant submitted the sudden loss of her sole residence and complete loss of future income, combined with significant familial health concerns, created a series of exceptional circumstances that had the effect of 'hindering' the Applicant from making the Application within the statutory time limit.

• [34] The Applicant submits the following reasons for the delay:

• Shock, distress and anxiety resulting from the termination of her working arrangement and the loss of her place of residence;

• Lack of knowledge/incorrect advice provided by 'Fair Work Australia';

• Lack of income/could not afford legal advice/representation; and

• Providing assistance to sick/injured family/relatives.

Shock, distress and anxiety resulting from the termination of her working arrangement and the loss of her place of residence

• [35] The Applicant submits that the termination of her working arrangement triggered anxiety and in the period that followed she was in complete shock and was distraught and depressed.

• [36] In Victor Blanco v White Bathroom,[23] Deputy President Easton set out a helpful summary of the authorities relevant to medical incapacity in the context of an application for an extension of time as follows:

[44] 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 to be exceptional circumstances connected to an applicant's mental illness and in other cases the Commission has not found exceptional circumstances.

[45] 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.

[46] Similarly in Beard v Valley Industries Limited Deputy President Saunders found that there were exceptional circumstances "as a result of the significant deterioration in his mental state shortly after his dismissal, [the applicant] was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal." In that matter the Applicant's claim was supported by medical evidence from his GP, including evidence that two different medications prescribed to the Applicant that had negative side effects. The Deputy President noted that "after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission".

[47] 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.

[48] 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."

[49] 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."

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

[51] In summary the following principles apply:

(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, Beard 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 Beard, Underwood and Merhi); and

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

• [37] In Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd[24], a Full Bench of the Commission stated:

[26] There was no medical evidence concerning the reason for delay in filing the Application between the expiry of the 21-day period on 18 January 2023 and when the application was filed on 9 February 2023. The absence of any such evidence left the Deputy President with no basis upon which she could find there where was a credible explanation for that period of delay.

[27] In an appeal of a decision that dealt with the granting of an extension of time for a late application for an unfair dismissal remedy, the Full Bench in Australian Postal Corporation v Lili (Karen) Zhang (Zhang) was required to similarly consider medical evidence advanced in support of the claim that the applicant in that matter had been incapacitated by trauma, stress and depression. The Full Bench relevantly stated as follows in relation to the absence of direct medical evidence going to the period of delay:

"[21] Drawing on the above, it does not appear that Ms Zhang was incapacitated for the period January 2015 until 24 April 2015 when her application was received by the Commission when, based on her own submissions, she was attending interviews for jobs. Nor does it appear that she was incapacitated prior to 20 September 2014 when she collected her possessions from Australia Post. More significantly, however, it is not clear to us on what basis the Commissioner felt qualified to make a determination that Ms Zhang suffered from PTSD in the immediate aftermath of her termination.

[22] In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application."

[28] The Full Bench's comments in Zhang stand for the proposition that more than lay person opinion is required to support a claim that a person was medically incapacitated such that they could not have filed an application for a general protections dismissal or unfair dismissal application earlier than they did. We concur with the Full Bench's comments in Zhang that 'compelling medical evidence' is required to support a conclusion that the reason for the delay was due to the individual's medical condition. The Deputy President in the present matter had no medical evidence before her, let alone 'compelling medical evidence', to explain the delay in filing the Application. Were the Deputy President to have accepted the Appellant's opinion that she was medically incapacitated between 28 December 2022 and 9 February 2023, the Deputy President would in our view have fallen into the same error identified by the Full Bench in Zhang.

• [38] The authorities set out above are clear that if a medical condition or incapacity is relied on, there should be compelling medical evidence demonstrating that it had a material impact upon an applicant's capacity to make an application within the statutory time limit and that an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient.

• [39] Turning to the circumstances of this matter, the only evidence beyond the Applicant's self-assessment or her daughter's lay-person opinion is the letter of Coonamble Aboriginal Health Service. I have placed no weight on the letter as it does no more than provide an account what the Applicant experienced and how the Applicant felt. Furthermore, it is written in the form of a submission supporting the Applicant's case rather than 'compelling' medical evidence that the Applicant had a medical condition or incapacity that had a material impact upon the Applicant's capacity to make the Application within the statutory time limit.

• [40] Even if the letter could be described as medical evidence, that does not require the Commission to conclude that simply because it declares a person to be suffering from a relevant condition that it renders the person incapable of completing and lodging an application under the FW Act within the required time.[25] The opinion of a person's medical practitioner or treating professional is a relevant consideration to be taken into account together with all the other available information before the Commission.[26]

• [41] The other available information relevant to my consideration of this matter is the Applicant's evidence that she prioritised searching for new employment and undertook a training course, and her daughter's evidence that the Applicant was able to generally go about her daily activities.[27]

• [42] Having regard to the evidence and submissions before me, I am not satisfied that shock, distress and anxiety resulting from the termination of her working arrangement and the loss of her place of residence is an acceptable or reasonable explanation for the delay.

Lack of knowledge/incorrect advice provided by 'Fair Work Australia'

• [43] The Applicant's evidence of what was said in the telephone call is scant at best and despite attempts by my Chambers to access the recording within the date range and telephone numbers provided by the Applicant, a recording could not be located.

• [44] In any event, the Commission is an independent tribunal and does not provide legal or industrial advice.

• [45] To the extent the Applicant was not aware of her rights, it is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[28]

• [46] A simple internet search would have pointed the Applicant to the Commission's website which has a range of resources to assist self-represented litigants including information about who can apply and the process for lodging an application.

• [47] I do not accept that lack of knowledge or the alleged incorrect advice constitutes an acceptable or reasonable explanation for the delay.

Lack of income/could not afford legal advice/representation

• [48] The Applicant's evidence and submissions on this point go no higher than because she had lost her source of income, she could not afford legal advice or representation. Beyond that, there is no evidence of the Applicant's financial situation. However, even if I were to accept that the Applicant could not afford legal advice or representation, I do not consider this would have affected the Applicant's ability to make the Application on time.

• [49] In Gail Miller v DPV Health Ltd (Hume)[29], Colman DP stated:

...There is copious information about unfair dismissal applications on the Commission's website. Many applicants prepare and file their own application. Applicants can also apply for pro bono advice from certain lawyers associated with the Commission's workplace advice service, either before or after lodging their applications. I do not consider that Ms Miller's financial situation constituted an acceptable reason for the delay.

• [50] I agree with the Deputy President, and as I stated above, a simple internet search would have pointed the Applicant to a range of resources on the Commission's website.

• [51] I do not accept that the Applicant's financial situation is an acceptable or reasonable explanation for the delay.

Providing assistance to sick/injured family/relatives

• [52] I accept that the Applicant providing assistance to family members would have diverted her time and attention from other matters. However, like the other points raised by the Applicant, there is scant detail as to precisely when any family members were in hospital or were required to attend appointments, the length of any travel involved, and whether the Applicant was the primary carer or not. This was said to occur at the same time as the Applicant was caring for her grandchildren which included taking them to and from school.

• [53] Furthermore, these events occurred from 26 May 2024 onwards, some 99 days after the termination of the Applicant's working arrangement and 76 days beyond the statutory time limit.

• [54] Having regard to the lack of evidence supporting this reason, I am not satisfied that this constitutes an acceptable or reasonable explanation for the delay.

• [55] Having regard to the evidence and submission of the parties, I do not accept the Applicant has provided an acceptable or reasonable explanation when the various reasons are considered individually or collectively.

• [56] In the absence of an acceptable explanation, this circumstance weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

• [57] It is not in dispute, and I so find, that the Applicant was aware that her engagement with the Respondent ended on 17 February 2024 and therefore had the full period of 21 days to lodge the Application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

• [58] Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[30]

• [59] In Hunter Valley Developments Pty Ltd v Cohen[31], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[32]

• [60] In the absence of any positive action taken by the Applicant to put the Respondent on notice that the dismissal was disputed, this factor weighs against a conclusion that there are exceptional circumstances.

• [61] It is well accepted that a lengthy delay gives rise to a general presumption of prejudice.[33]

In the context of an application for an unfair dismissal remedy, a 100-day delay can only be described as lengthy.

• [62] The Respondent submitted that long delays occasion prejudice, but it did not identify any relevant prejudice. The Applicant submitted that in the absence of any identifiable prejudice, it is only fair and equitable to hear the substantive claim.

• [63] A relevant prejudice is one that the Respondent would not have suffered, had the Application been made within 21 days of the dismissal taking effect.[34]

• [64] The resolution of this matter will necessarily include findings as to whose version of events is preferred in discussions that took place on or around 21 September 2023 and on 17 February 2024. A lengthy delay of 100 days may impair the recollection of the participants in conversations giving rise to a relevant prejudice.

• [65] This factor weighs against a finding of exceptional circumstances.

• [66] The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time.

• [67] The Applicant contends that she was employed at the Motel for almost 7 years and that the dismissal was harsh and unreasonable which had a disproportionate impact on her life. The Applicant submits that there was no written notice given pursuant to s.384(2)(b) of the FW Act and therefore, her service with the former operator counts as service with the Respondent.

• [68] The Respondent contends that the Applicant was engaged as an independent contractor by both it and the former operator of the Motel and therefore, the Application does not have strong prospects of success.

• [69] It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. For example, the Applicant's evidence as to the nature of her engagement by the former operator is scant and at odds with the contract for the sale of business. If it was found that the Applicant was engaged by the former operator as an independent contractor, then the Applicant would not have completed a period of employment of at least the minimum employment period with the Respondent.

• [70] Accordingly, it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

• [71] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [72] The test of 'exceptional circumstances' establishes a 'high hurdle'. Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.

• [73] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time under s.394(3).

• [74] The Application is dismissed. An Order to that effect will be issued with this decision.

[2] Exhibit A2 at [73]; Exhibit R1 at [13].

[4] Exhibit R1 at [6], [12], Annexure B.

[6] Exhibit A4 (Hearing Book at p.42); Exhibit R1 at [16], Annexure G.

[7] Exhibit A1 at [10]-[14]; Exhibit R1 at [40].

[9] Exhibit A1 at [15]-[16], [29]-[36].

[10] Exhibit A1 at [21]-[22]; Exhibit A2 at [21].

[13] Exhibit A1 at [41]; Exhibit A3 at [21]-[22].

[17] Exhibit A2 at [34]-[45]; Exhibit A3 at [39]-[45].

[19] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) at [13].

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

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

[23] [2021] FWC 4694 at [44]- [51].

[24] [2023] FWCFB 113 at [26]- [28], citing Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285.

[25] Weir v HydroChem Pty Ltd [2017] FWCFB 758 at [37].

[28] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

[29] [2019] FWC 3979 at [10].

[30] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[31] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.

[33] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 556_; Brodie-Hanns v MTV Publishing Ltd_ (1995) 67 IR 298 at 299-300; GHD Pty Ltd T/A GHD v Kevin Alan Black [2023] FWCFB 38 at [51].

[34] Clarke v Service to Youth Council Incorporated [2013] FCA 1018 at [31].

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