s.365 - General protections

Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - application out of time - medical evidence - no exceptional circumstances found - application dismissed.

• [1] On 12 January 2024, Ms Stacie Bates made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth), alleging that she had been dismissed from her employment and that the dismissal contravened the general protection provisions.

• [2] Ms Bates commenced employment with Joblink Plus Limited (Joblink) in August 2023 and says she was forced to resign on 6 December 2023 after a temporary absence due to illness or injury. Section 366(1) requires applications under s.365 to be made within 21 days after a dismissal takes effect, in this case being 27 December 2023.

• [3] Ms Bates seeks an extension of time under s.366(2) to file her application against Joblink.

• [4] Joblink submitted that Ms Bates should not be granted an extension of time, that Ms Bates resigned from her employment and therefore that the Commission does not have jurisdiction to deal with her general protections application.

• [5] For the reasons that follow, I am not satisfied that there were exceptional circumstances or that I could grant Ms Bates an extension of time. I will make an order dismissing the application.

• [6] An application to the Commission to deal with a dismissal dispute involving an alleged contravention of the general protection provisions must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows (per s.366(1)). The Commission may only allow a further period if it is satisfied that there are exceptional circumstances.

• [7] Section 366(2) is in the following terms:

(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."

• [8] Section 394 imposes the same time limit on making an application for an unfair dismissal remedy. Section 394(3) and 366(2) are in almost identical terms and the Commission's approach to s.366(2) and s.394(3) is substantially the same.

• [9] The exceptional circumstances requirement establishes a 'high hurdle' for applicants to overcome. The Full Bench in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [2011] FWAFB 975 described exceptional circumstances as follows:

"[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.

[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."

• [10] The factors listed in s.366(2) and s.394(3), considered separately or in combination, might constitute exceptional circumstances, even if no single factor is exceptional (per Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, (2018) 273 IR 156 ("Stogiannidis")).

• [11] I am required to take into account "the reason for the delay" (per s.366(2)(a)). The test invariably applied is whether an applicant has a 'credible or reasonable' explanation for the delay. The reasonableness of an explanation is not measured in a vacuum: firstly it must be assessed as part of an inquiry into whether exceptional circumstances exist, and then secondly 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 (per Stogiannidis at [30]-[40] and Keith Long v Keolis Downer t/as Yarra Trams, [2018] FWCFB 4109 at [36] [2018] FWCFB 4109; (2018) 279 IR 361 ("Yarra Trams")). 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, credible explanations for delay do not receive an extension of time because they cannot firstly establish that exceptional circumstances exist.

• [14] Ms Bates relied on the following reasons for delay:

(a) on the day she was allegedly told to resign she had a mental breakdown. She saw her doctor on that day and was referred to a psychiatrist. She has not been able to get an appointment to see a psychiatrist but had several appointments with her general practitioner and also saw a counsellor. In the first 21 days after the alleged dismissal, Ms Bates saw her doctor on 15 December and 18 December 2023;

(b) she had contacted her Union but was advised that they do not take on cases against government agencies; and

(c) the Christmas and New Year shut down period meant that she had to wait for Legal Aid to open for advice and the advice she received was to complete the Form F8.

• [15] On 26 February 2024, Ms Bates filed a statutory declaration and a medical certificate to support her application but did not lead any evidence about seeking legal advice. Ms Bates' statement provided a recount of what happened on the day she says she was dismissed but no explanation about the delay. Ms Bates' statement included the following:

"Amanda [Hazell] then proceeded to ask how I was, [I] explained that I am sore, Amanda then asked what they could do to support me, [I] said Im really not sure, I don't know what [can] I do, Amanda then said how I am letting the team down and my Clients all the time, I got a [bit] upset at this and said I know and I am so sorry, Amanda then said I told another worker that I am looking at going on a Disability Payment, ...

Amanda then went on to say so what can we do for you, I was upset by now and said I really dont know, Amanda then said are you going to quit, I said if thats what you want me to do. Amanda then said something else but I was balling my eyes out by this stage and said I can't fucking do this and walked out of the office.

[I] walked into my office crying and said to Courtney Trenery I just got the sack...

By the time [I] got home (10 minutes away) [I] had a written resignation letter in my inbox."

• [16] The Applicant relied on a short letter from her treating doctor that said:

"This is too certify that Stacie was unable to commence her unfair dismissal claim as she was struggling with depression and anxiety at the time it was due. I have consulted with Stacie on the 15/12/2023, 18/12/2023, 8/01/2024, 22/01/2024 and 2/2/2024. Give[n] the extenuating circumstances it would be appreciated if you could accept Stacie's claim."

• [17] Sometimes an applicant's medical condition can be so significant that it affects 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.

• [18] In Glyn Roberts v Westech IT Solutions Pty Ltd [2014] FWC 4226 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.

• [19] In Shaw v Australia and New Zealand Banking Group Ltd (t/as ANZ Bank) (2015) 246 IR 362, [2015] FWCFB 287 at [15] 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.

• [20] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting [2015] FWCFB 3435 at [15]- [16] 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."

• [21] In Linda Merhi v Commonwealth of Australia, represented by Services Australia (formerly the Department of Human Services) [2020] FWCFB 3523 at [8], [37]-[39] 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."

• [22] 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.

• [23] 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 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).

• [24] Ms Bates provided very little evidence at all about her mental capacity to lodge her application in the period prior to 27 December 2023. The medical certificate falls short of what is required in a number of ways. Firstly, Ms Bates refers to seeing her doctor and being referred to a psychologist, however the letter from her treating doctor does not refer to these things nor to seeing Ms Bates on the day of her alleged dismissal at all.

• [25] Secondly, the doctor's letter does not give any opinion at all about Ms Bates' capacity to make an application to the Commission. The letter indicates that she "was unable to commence her unfair dismissal claim as she was struggling with depression and anxiety at the time it was due" but does not say anything about Ms Bates' actual capacity to engage in day-to-day activities and/or capacity to lodge her application in the relevant period.

• [26] I accept that that Ms Bates was distressed about leaving her employment. I note that one of Ms Bates' co-workers was so concerned about Ms Bates' state of mind that day that she planned to ring Ms Bates' mother. I also note that Ms Bates was suffering chronic lower back pain and bilateral hip pain at the same time.

• [27] Although Ms Bates was experiencing these significant difficulties, and that these difficulties would have made it harder for Ms Bates to prepare and lodge an application, there is no evidence that established that she was not able to make her application within the 21 day limit.

• [28] As the Full Bench in Shaw v ANZ Bank said: stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The medical certificate evidence provided by Ms Bates does not establish that there were exceptional circumstances of a kind that go beyond the personal responses considered in Shaw.

• [29] In considering all of the above, Ms Bates' explanations for the delay do not point towards the existence of exceptional circumstances and does not support the granting of an extension of time.

• [30] Section 366(2)(d) requires that I take into account "the merits of the application" when considering whether there are exceptional circumstances and the extension of time more generally.

• [31] Little evidence was led by the parties and it is not possible or appropriate to make any firm or detailed assessment of the merits that at this juncture. There are sound reasons why the Commission should not receive evidence and make factual findings on contested issues at this stage of the proceedings: most notably because parties should not have to present their evidentiary case twice (see Yarra Trams at [72]).

• [32] In this context it is sufficient that Ms Bates establish that her claim is not without merit (per Thomas Cosgrove v Clarity Interiors [2020] FWCFB 5464 at [33]). The weight to be given to this consideration is dependent on the extent to which there is merit in the substantive application.

• [33] I accept that if Joblink did in fact dismiss Ms Bates then there is at least an arguable case that Ms Bates was dismissed because of her disability, given the proximity of her concerns about her back and hip pain.

• [34] However, Ms Bates does not appear to have an arguable case under the general protections regime because it does not appear to me that she was dismissed at all (see below).

• [35] Overall, I do not consider that the merits in this case point towards a finding that there are exceptional circumstances. At best I consider the merits of the application to be a neutral consideration.

• [36] In my view the other factors listed in s.366(2) are neutral considerations. Firstly, Ms Bates took no steps to dispute the dismissal (s.366(2)(b)). Secondly, there is some evidence of prejudice to Joblink (s.366(2)(c)). Thirdly, I am not aware of any persons or cases that are relevant to the question of fairness as between Ms Bates and other persons (s.366(2)(e)).

• [37] As referred to above, the Full Bench in Stogiannidis reasoned that no one factor needs to be exceptional in order to enliven the jurisdiction to extend time, and individual factors might not be particularly significant when viewed in isolation, but that I must also consider the matters collectively and ask whether they disclose exceptional circumstances (Stogiannidis at [38]-[39]).

• [38] In this case, none of the above matters considered individually point towards there being any exceptional circumstances. For completeness I am also not satisfied that there are exceptional circumstances after reviewing the above matters collectively.

• [39] Having regard to the matters I am required to take into account under s 366(2), and all of the matters raised by Ms Bates, I am not satisfied that there are exceptional circumstances. As such there is no basis for me to allow an extension of time under s 366(2).

• [40] Accordingly, the application must be dismissed. An order giving effect to this decision will be issued separately (PR773227).

• [41] I do not need to formally decide Joblink's argument that Ms Bates was not dismissed. This objection was the subject of evidence and submissions and so I will briefly explain why I do not think that Ms Bates was in fact dismissed.

• [42] Ms Bates felt under considerable strain because of her physical condition. On 6 December 2023 there was a discussion about Ms Bates' soreness and also discussion about measures that Joblink could implement to support her. Somebody in the conversation raised the possibility that Ms Bates could resign - Ms Bates said the employer raised it, and Joblink's witnesses say Ms Bates raised it. Either way, very soon after resignation was raised Ms Bates said "I can't fucking do this", or similar, and walked out of the office.

• [43] Focusing on the conduct of the employer, I am satisfied that Joblink did not dismiss Ms Bates directly. I am also satisfied that Joblink did not engage in conduct with the intention of bringing the employment to an end, or act in a way that termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign (see Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli [2017] FWCFB 3941 at [47], [2017] FWCFB 3941; (2017) 271 IR 245 at 268-9).

• [44] If I am incorrect about the exceptional circumstances and the extension of time, Ms Bates' application cannot continue because, in my view, she was not dismissed.

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