Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy; application made outside the time prescribed; whether there are exceptional circumstances; whether discretion to allow a further period within which application may be made should be exercised; extension of time granted; application referred to unfair dismissal case management team for further programming.

[1] Mr Stephan Glumac, the Applicant in this proceeding, commenced employment with Sea Road Logistics Pty Ltd (Respondent) as a driver in 2014 on a date which on the materials appears to be in dispute. However, the date of commencement of employment is not material for the purposes of deciding this application. The Applicant was dismissed from his employment on 9 February 2018. The dismissal occurred following various periods of absences from work by the Applicant.

[2] The reason for the Applicant's dismissal, as set out in correspondence to the Applicant dated 9 February 2018, was poor attendance at work and lack of commitment to the Respondent.

[3] The Applicant lodged an application for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (Act) on 22 March 2018. The application was lodged 20 days beyond the period within which an application for an unfair dismissal remedy must be made.[1] The issue requiring resolution therefore, is whether the Applicant should be allowed a further period within which the application may be made.

[4] Sections 394(2) and (3) of the Act permit the Fair Work Commission (Commission) to exercise a discretion to allow an application for an unfair dismissal remedy to be made within a further period, that is a further period beyond the 21 days after dismissal took effect, subject to being satisfied that there are exceptional circumstances, taking into account:

• the reason for the delay;

• whether the Applicant first became aware of the dismissal after the date it took effect;

• any action taken by the Applicant to dispute the dismissal;

• prejudice to the Respondent including prejudice caused by the delay;

• the merits of the application; and

• fairness as between the Applicant and other persons in a similar position.

[5] It is clear from the structure of section 394(3) that 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 show exceptional circumstances.[2]

[6] A statutory requirement that a matter be taken into account means that the matter is a 'relevant consideration' in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend).[3] That is, it is a matter which the decision-maker is bound to take into account. The obligation to take into account the matters set out at s.394(3) means that each of the matters must be treated as a matter of significance in the decision making process.[4] As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:[5]

"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". [6]

[7] The weight given to a particular matter is ultimately a matter for the Commission, subject to some qualification. As Mason J explained in Peko-Wallsend:[7]

"It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. ... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable".[8]

[8] As to the meaning of "exceptional circumstances", briefly, these are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare.[9] Thus before considering whether to exercise my discretion to allow a further period within which an application may be made, I must be satisfied that, taking into account section 394(3), that there are exceptional circumstances. I turn then to consider the particular matters to which regard must be had.

[9] The 'reason for the delay' is a factor that the Commission must take into account in deciding whether there are 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 it is ultimately a question of degree and insight.

[10] The Applicant contends that he has for some period been suffering with a diagnosed mental illness for which he has been receiving treatment since November 2014. As a consequence of a combination of criminal proceedings unrelated to work in 2016 and 2017, together with the circumstances of his dismissal, the Applicant's mental illness, specifically depression, worsened and affected his capacity to lodge an application for an unfair dismissal remedy within the time prescribed and for the period following. The Applicant first complained about his dismissal to his lawyers acting in the criminal proceedings on or about 15 March 2018, and only after some encouragement from his lawyers was he able to give instructions to enable his lawyers to lodge the application online on 22 May 2018.[10]

[11] The Applicant's explanation for the delay is supported by medical evidence. Dr Calin Gredina provided two medical reports[11] and also gave evidence before me.[12] Dr Gredina has been treating the Applicant since November 2014.[13] Dr Gredina developed a mental health plan for the Applicant in 2016.[14] Dr Gredina's assessment about the Applicant's capacity to function, and in particular, the impact of his mental illness on his capacity to lodge an unfair dismissal remedy application about which he gave evidence, was based on consultations with the Applicant in January 2018 and March 2018, the examinations conducted therein, the Applicant's diagnostic history and Dr Gredina's dealings with and treatment of the Applicant.[15]

[12] Dr Gredina's evidence was that the Applicant was unlikely, physically or mentally, able to lodge an unfair dismissal application until he was assisted in that endeavour by his criminal lawyers on 22 March 2018. Dr Gredina's assessment of the Applicant's capacity to do so, based on the consultations and medical history, was that it was "most likely impossible for him to actually even think about it because he was so affected and so confused with insomnia and lack of sleep and lack of energy . . . He was unable to basically decide exactly what he wanted to do."[16]

[13] Dr Gredina's evidence was not seriously challenged by the Respondent. The Respondent's reliance upon a medical examination conducted by the Respondent's medical practitioner as to the Applicant's fitness for work in about August 2017 says little about the Applicant's condition during the period following the dismissal, and in particular, the period following 2 March 2018 to 22 March 2018.

[14] I accept Dr Gredina's medical opinion as to the Applicant's capacity to lodge an unfair dismissal remedy application. It is plain on that evidence the Applicant was severely impacted in his capacity to lodge an application until he was assisted in doing so by the lawyers representing him in the criminal proceedings. I therefore accept that the Applicant has provided a credible explanation for the delay in lodging his application in this matter and this weighs in his favour.

Whether the Applicant first became aware of the dismissal after the date it took effect

[15] It is uncontroversial that the Applicant became aware of his dismissal on the date it took effect. In the normal course of events, the fact that an Applicant became aware of his dismissal on the date it took effect is a matter that would weigh against the Applicant because the Applicant would have had the benefit of the full 21 days within which to lodge an application. However, having regard to the medical evidence about the Applicant's mental illness and the impact of that illness on his capacity to function, I consider that this matter weighs neutrally in the circumstances of this case.

Any action taken by the Applicant to dispute the dismissal

[16] It is also uncontroversial that the Applicant took no step to dispute the dismissal other than lodging the unfair dismissal remedy action. The taking of one or more steps to dispute a dismissal will usually weigh in favour of an Applicant, and the absence of any step to dispute a dismissal will usually weigh the other way. Again, by reason of the Applicant's mental illness and the impact of the illness on his capacity to function for a period following the dismissal, I do not consider it appropriate to weigh against the Applicant the failure to dispute the dismissal. In the circumstances therefore, this matter weighs neutrally.

Prejudice to the Respondent including prejudice caused by the delay

[17] In the circumstances of this case, the delay is not of a lengthy period. However, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time. The Respondent did not assert that it would suffer any prejudice. I do note that the branch manager of the Respondent who effected the dismissal and had dealings with the Applicant in relation to the Applicant's attendance at work is no longer an employee of the Respondent. However, it was not asserted that this presented any difficulty to the Respondent in the event that it was required to defend the substantive application for an unfair dismissal remedy. If the former employee is an unwilling witness, it is open to the Respondent to seek an order from the Commission requiring that former employee's attendance at the hearing to give evidence. I consider the weight ascribed to this matter is neutral in the instant case.

[18] In cases such as this, where the substantial merits of an application are not fully examined or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant's case at its most favourable. Put another way, the relevant assessment is whether the application has some merit.

[19] On the basis of the material before me, it appears that the Applicant has some history of absenteeism and this is explicable through a combination of illness and attendance to non-work-related criminal proceedings. There is some history of the Applicant having been spoken to or counselled about his attendance and absenteeism. However, on the face of the materials, the last occasion on which any step was taken in respect of the Applicant's attendance was 26 May 2017. The reason for dismissal relates to a period of 42 days unpaid leave of absence taken between the period of 20 March 2017 and 1 February 2018. The notice of summary dismissal appears to have been given without prior warning and there does not appear to have been any discussion about the dismissal or the reasons for it before dismissal was effected. On the material before me, there does not appear to have been an opportunity afforded to the Applicant to comment on the reason for his dismissal, nor is it apparent that the Respondent took any step to enquire as to the reasons for the absences or of the likelihood of the absences continuing into the future having regard to the Applicant's state of health and the progression of non-work-related criminal matter. It appears to me therefore, that the Applicant's application is not without merit. That is not to suggest that it will succeed, but I am satisfied that there is at least some merit which would give the Applicant a justifiable reason to pursue his unfair dismissal remedy application. This is a matter that weighs in the Applicant's favour.

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

[20] Cases of this kind will generally turn on their own facts; however this consideration is concerned, inter alia, with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application.

[21] Neither party made submissions about this matter. Nor did any party bring to my attention any relevant decision of the Commission which is in terms similar to the facts in this case or where the Commission determined an extension of time application on the basis of facts that are substantially similar to those before me. In the circumstances of this case, this matter weighs neutrally.

[22] Statutory time limits that are applicable to the exercise of a person's right to bring an unfair dismissal remedy application are an expression of the Parliament's intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

[23] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period. I have accepted on the medical evidence that the Applicant was significantly impacted in his capacity to bring an application within the time prescribed by reason of his mental illness. For the reasons stated, the application has some merit. The other matters which are required to take into account weigh neutrally for the reasons stated. Therefore, I consider each of the matters set out in s.394(3), in the context of the evidence in this case and when I look at those circumstances collectively, I am satisfied that there are exceptional circumstances in this case.

[24] As to whether I should now exercise my discretion, there is no compelling reason why I should not exercise my discretion having concluded that there are exceptional circumstances. Moreover, in the circumstances of this case, I consider that the interests of justice are served by allowing the application to proceed. I therefore allow the Applicant to lodge an unfair dismissal application within a further period ending 22 March 2018.

[25] The application will be remitted to the unfair dismissal case management team and dealt with in the usual way.

Mr J Barravecchio of JAB Lawyers and L.Y Tonge Lawyers for the Applicant.

[1] Fair Work Act 2009 (Cth) s. 394 (2)

[2] See Ho v Professional Services Review Committee No 295 [2007] FCA 388 (27 March 2007) at [23]-[26] (Rares J); Hatcher v Cohn [2004] FCA 1548 at [49]- [50] (Keifel J) ; An v Minister for Immigration and Citizenship [2007] FCAFC 97; Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 at [51]; Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).

[3] [1986] HCA 40; (1986) 162 CLR 24; see also Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]- [26] and Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

[4] See Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leclee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

[5] (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 at [62] and by Katzmann J in CFMEU v FWA [2011] FCA 719; (2011) 195 FCR 74 at [103]

[6] (1987) 16 FCR 167 at 184

[7] [1986] HCA 40; (1986) 162 CLR 24

[9] See Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]

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