Fair Work Act 2009_

s 394 - Application for unfair dismissal remedy

Terra Firma Pty Ltd t/as Terra Firma Business Consulting

Application for relief from unfair dismissal - application lodged one day 'out of time'- consideration of 'exceptional circumstances' - legal advice - consultation with psychologist - anxiety and stress - 'exceptional circumstances' not made out - application dismissed.

[1] This decision arises from an application for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394(3) of the Fair Work Act 2009 (the 'Act'). Wayne Underwood (the 'applicant') was dismissed from his employment with Terra Firma Pty Ltd t/as Terra Firma Business Consulting (the 'respondent') on 30 September 2014. The applicant lodged an application for an unfair dismissal remedy with the Fair Work Commission (the 'Commission') on 22 October 2014. The Act mandates a 21 day time limit for initiating an application for a remedy for unfair dismissal. His application was therefore lodged 1 day outside the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application for Unfair Dismissal and the Form F3 Employer's Response. The Commission wrote to the applicant on 24 October 2014 outlining the matters I am required to consider under s 394(3) of the Act, and asking him to provide a statement addressing these matters within 14 days. The applicant contacted the Commission and asked to be heard by telephone, on the question of an extension of time being granted. That request was granted.

[3] On the 16 January 2015, I conducted a telephone hearing. Present at that hearing was the applicant who appeared on his own behalf and Mr Bartels, Managing Director of the respondent company. I granted permission, pursuant to s 596 of the Act, for Mr Cochrane, Solicitor, to appear on behalf of the respondent. Following the hearing I issued an Order refusing an extension of time and dismissing the application on 4 February 2015. These are my reasons for doing so.

[4] The relevant legislative framework, guiding the exercise of the Commission's discretion in relation to applications of this kind, is set out as follows:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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:

(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.'

[5] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 ('Nulty'). While Nulty was decided under the General Protections provisions of the Act, the definition of 'exceptional circumstances' has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, the Full Bench of the Commission said:

'[10] It is convenient to deal first with the meaning of the expression "exceptional circumstances" in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression "exceptional circumstances" in s.394(3) and held:

"[5] The word "exceptional" is relevantly defined in The Macquarie Dictionary as "forming an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act."

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression "exceptional circumstances" was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

"23. I am of opinion that the expression 'exceptional circumstances' requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:

'Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.'

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:

'We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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' in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services."

[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 time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[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 [Endnotes not reproduced].'

[6] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not 'exceptional circumstances' have been established. Even if 'exceptional circumstances' are established, this is merely the jurisdictional gateway for the exercise of the Commission's discretion to extend the time for filing an unfair dismissal application. Put another way, 'exceptional circumstances' may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application 'out of time'; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia [2014] FWCFB 2288 succinctly described the Commission's decision making process under 394(3) of the Act as: 'The test for granting an extension of time involves both a broad discretion and a high hurdle of 'exceptional circumstances.' I now turn to each of the criteria under s 394(3) of the Act.

[7] The applicant contends that the reasons for the delay in filing his application were twofold. Firstly, he claimed that a lack of legal advice and unfamiliarity with the Commission's lodgement process contributed to the delay in filing his unfair dismissal application. Secondly, he cited anxiety and stress as a further contributing factor to the delay in filing his application. Curiously, the applicant did not disclose anxiety and stress as a reason for the delay in filing when he initially lodged his unfair dismissal application on 22 October 2014.

[8] I have extracted below the relevant sections of the transcript in which the applicant explained both his reasons for the delay in filing his unfair dismissal application:

'MR UNDERWOOD: That was a medical certificate that I provided as an addition to the letter stating, from my psychologist, that as a result of the actions taken by Terra Firma and the subsequent effects upon me personally with anxiety that that's left me in a state of helplessness. The fact that I was not able to function, I was not able to cope, and that therefore delayed my application and therefore as to when I was even able to look into that application then I could not get the answers in regards to whether it was legally capable of me even able to be lodging an application. The psychologist has testified and have given a proofing statement letter advising, with her professional capacity, that I am indeed suffering from extreme anxiety and dysfunction as a result of the effects from the dismissal.

THE DEPUTY PRESIDENT: Well, are you on any medication?

MR UNDERWOOD: Yes, I am. I'm on some antidepressants.

THE DEPUTY PRESIDENT: Well, of course it's not uncommon and, indeed, certainly not exceptional that when people are dismissed they suffer elevated levels of stress and anxiety.

MR UNDERWOOD: But this is more than actual elevated stress and anxiety, this left me into a state of complete helplessness where to basically I went into a very dark and a very deep anxiety and depression of which left me in a state of which I was not able to function, I was not able to cope. I could not make decisions, everything was just - day-to-day living was hard enough, let alone to actually even to face anything additional. It was just beyond my capabilities to be able to handle that medically and with the state that I was in I could not handle it. I couldn't cope with any of that, I couldn't make decisions. It was - my whole situation was basically just being able to live from day-to-day and just being able to basically - normal function. I would not go anywhere out of the house, I wouldn't do anything. Therefore to do anything to face the unfair dismissal or anything was just something that I just could not cope with, I couldn't handle, I couldn't even face. It was just too traumatic and was just too difficult for me to be able to do that.

THE DEPUTY PRESIDENT: Well, isn't that a little bit difficult to reconcile with the fact that you had been making approaches to various law firms and organisations about getting legal advice?

MR UNDERWOOD: That was only in the very last situation and the very last week or so to where I actually was in a situation of - I felt that I was actually able to make some inquiries and that - then when I was making the inquiries they basically could not tell me any advice and that was when I was left with the situation of, on the very last day, of which I was advised just to lodge the application. I could not get any advice as to whether that was legal, the actions that Terra Firma did, in regards to the contract.

So therefore I didn't know what state I was in, whether I was able to lodge an application or I couldn't lodge an application. Whether it was something that could be done. That were things that I just couldn't - I didn't know what to do, I didn't know what I should be doing, where I should be going, who I should be speaking to. No one could give me any information, that was in the very last few days, and - - -

THE DEPUTY PRESIDENT: Mr Underwood, all you would have needed to do was to ring the Fair Work Commission. They would have faxed you or emailed you a very uncomplicated and simple unfair dismissal application form. It doesn't require you any legal knowledge at all.

MR UNDERWOOD: I wasn't aware of that. As I said, I'm completely unfamiliar with the whole process. I did not know who I should speak to, what I should do, what was legally viable. So I was contacting Legal Aid to get an opinion on whether it was legally viable for the actions that were taken by Terra Firma as to - if it was legally correct of what the actions that were taken therefore whether I was able to lodge an application. These were things that I did not know and things that I was in a complete state of flux. I didn't know what I should be doing, who I should be speaking to. I didn't know about the Fair Work Commission until the very end, someone pointed me to that, you know, you need to lodge for unfair dismissal. I just lodged it and then that was the last day. As it was, the application was only a matter of hours late. It was lodged about 5 am, due to some technical difficulties that I had on that day trying to actually get the application lodged, because of the fact, as I said, I didn't know prior to that what I should be doing and I couldn't even face the situation of unfair dismissal of looking into it after I was dismissed. That is something that my psychologist has provided a letter to, a supporting letter, advising of my medical grounds, of the anxiety that I've been suffering and the fact that I'm not able to cope with any such decisions or extra functions, apart from just living my day-to-day and being able to eat and being able to dress and just normal living. I would not go anywhere, I didn't leave the house, I wouldn't speak to anyone. Yes.'

[9] In support of his health reasons, the applicant provided a medical certificate, dated 8 December 2014, which certified him unfit for work or study from 3 December 2014 until 5 January 2015. I note that it appeared the applicant had had two sessions with a psychologist, Ms Cheung, after 20 November 2014 and before 3 December 2014. He also provided a supporting letter from Ms Cheung outlining the extent of his anxiety and stress.

[10] After considering all the material in this matter, I am not persuaded that either of the reasons given by the applicant constitute an 'exceptional circumstance' within the meaning of s 394(3) of the Act. To my mind, it is significant that the dates identified in the medical certificate between which the applicant was deemed unfit for work/study, are well after the 21 day time limit by which he was required to lodge his unfair dismissal application and some two months after his dismissal. The medical certificate deems the applicant 'unfit for work/study'. However, such a restriction does not necessarily equate to rendering the applicant incapable of lodging his unfair dismissal application or rendering him incapable of otherwise conducting day to day activities.

[11] I also note that Ms Cheung's letter states that the applicant 'indicated he was unable to lodge the application within the required timeframe'. In other words, Ms Cheung 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. I also observe that Ms Cheung stated that the applicant only began psychological consultation on 20 November 2014; some 30 days after the statutory time limit for filing his application had expired.

[12] While I am sympathetic to the applicant's mental condition, 'elevated levels of stress and anxiety consistent with an adjustment disorder' do not positively demonstrate that the applicant was incapable of lodging his application, within the 21 day timeframe. Indeed, many dismissed employees suffer from elevated levels of stress and anxiety following termination of their employment. On one view, this is unexceptional, rather than exceptional. In Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287, the Full Bench, by majority (_Watson_VP and Smith DP) said at para [15]:

'[15] After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person's life, and such effects are unfortunately not unusual.'

[13] Furthermore, the applicant's ignorance of unfair dismissal processes and the relevant procedures for filing an unfair dismissal application, does not constitute an 'exceptional circumstance', within the meaning of the Act; See: Nulty at para [14]. The Commission's website provides extensive information and guidance as to both workplace rights and the process of filing an unfair dismissal application. Additionally, the Commission provides a number of means by which an unfair dismissal application can be lodged. In addition to electronic lodgement, an unfair dismissal application may be filed in person at the Commission's registry or by post. An unfair dismissal application can also be made by phone; See: Fair Work Commission Rules 2013 Rule 9.

[14] Moreover, legal assistance or representation is not required to file an application for a remedy for unfair dismissal. Indeed, parties frequently represent themselves in such matters before the Commission. The applicant admits receiving advice on 21 October 2014, yet he failed to lodge his unfair dismissal application until the following day, at which point the 21 day time period had expired - albeit not by much. Accordingly, I am unable to identify any 'exceptional circumstances' for the applicant's delay in filing his unfair dismissal application.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[15] The unfair dismissal application, lodged by the applicant, acknowledges that he was dismissed on 30 September 2014 and he was aware of his dismissal on that date. This is a neutral factor in this case.

Any action taken by the person to dispute the dismissal (s 394(3)(c))

[16] The applicant did not reveal any other action taken to dispute his dismissal, other than the filing of his unfair dismissal application on 22 October 2014. An assessment of this criterion weighs against the grant of an extension of time.

[17] Given that the application was lodged 1 day outside of the statutory time limit, I do not consider there is any significant prejudice to the employer, save for the usual prejudice of costs and time expended in defending the claim. This factor is a neutral one in this case.

[18] It is important for applicants to understand that a consideration of the merits of an application, at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis; See: Kyvelos v Champion Socks Pty Limited Print T2421, 10 November 2000. The applicant contended that at the time of his dismissal he was not being performance managed and he was dismissed because his position was no longer required by the Company. He believed he was unfairly dismissed from his employment for a number of reasons, being:

'1) I was not given notification of a 'valid reason' before the decision to terminate me was made.

2. I was not given an opportunity to respond to the reason identified as decision had been made.

3. I was not given an opportunity to have a witness in the meeting. However my employer arranged it so that they had a witness in the meeting.

4. I wasn't provided with any warning of my termination. Two weeks prior to the meeting, my employer advised that I would finish upon the project early. I continued to work for the 2 wks

5. The day before 'my termination' I received a meeting invite [sic] with the subject of catch up.'

[19] In response to these claims, the respondent asserted that it was 'exercising a right' under the employment contract (to dismiss) and had instituted an informal performance management process of the applicant. The respondent argued that it had given continuous 'feedback and counselling' to the applicant. Obviously, this evidence demonstrates that there is a factual dispute as to the reason for the applicant's dismissal. Accordingly, I believe that the applicant's case can not be said to be without some merit. The true extent of the merit of the applicant's case can only be revealed in the event of properly tested evidence. I consider this factor as a minor positive one in favour of granting the applicant an extension of time for filing his unfair dismissal application.

Fairness as between the applicant and other persons in a similar position (s 394(3)(f))

[20] The applicant did not specifically address this criterion. There was nothing to indicate that there were other persons in a similar position to that of the applicant. This is an irrelevant factor in this case.

[21] Having considered all of the matters which the Commission is required to take into account under s 394(3) of the Act, I am not satisfied that there are 'exceptional circumstances' which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The circumstances, as disclosed by the material submitted by the applicant, are not 'out of the ordinary course, unusual, special or uncommon'. These factors are not outweighed by any prima facie merit in the applicant's case. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 4 February 2015.

Mr N Bartels, Managing Director of the Respondent

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