Alex Cokic v Tronox Management Pty Ltd
[2025] FWC 437
•14 FEBRUARY 2025
| [2025] FWC 437 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Alex Cokic
v
Tronox Management Pty Ltd
(U2024/10593)
| COMMISSIONER SCHNEIDER | PERTH, 14 FEBRUARY 2025 |
Application for an unfair dismissal remedy
Mr Alex Cokic (Mr Cokic or the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Tronox Management Pty Ltd (Tronox or the Respondent).
Tronox objects to the application on the basis that the application was filed out of time. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
Mr Cokic filed submissions in the Commission on 4 November 2024. Tronox filed submissions in the Commission on 12 November 2024. The matter was listed for Hearing on 14 November 2024. On the morning of the Hearing, Mr Cokic filed additional submissions. Having reviewed the material, I determined that the additional submissions were of relevance to the matter before the Commission. As a result, the Hearing was rescheduled for 26 November 2024 and Tronox filed further submissions in reply to the Applicant on 22 November 2024.
At the Hearing, Mr Cokic was self-represented and gave evidence in support of his application. Tronox was represented by Ms Martina Ivanovski of the Chamber of Commerce and Industry Western Australia (CCIWA) and Ms Louise Symes (Ms Symes), Human Resources Manager, gave evidence on behalf of Tronox.
Relevant law – Dismissal date
Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
…(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3)…”
As the Full Bench has stated, in relation to a general protections application but equally applicable here, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]
When did the dismissal take effect?
Ms Symes sent an email to Mr Cokic with a letter confirming that he had been dismissed from his employment on 15 August 2025. Mr Cokic challenged the authority of Ms Symes to terminate his employment on 16 August 2024.
Having considered the material and submissions, I am satisfied that Mr Cokic’s dismissal was effectively articulated and communicated to him on 15 August 2024. Mr Cokic may not have been happy that Ms Symes was the person to communicate this news to him; however, that does not mean the dismissal notification was invalid.
It is a matter of record that the application was made on 8 September 2024.
As I found above, the dismissal took effect on 15 August 2024. The final day of the 21-day period was therefore 5 September 2024 and ended at midnight on that day. As noted above, the application was made on 8 September 2024.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Relevant law – Extension of Time
Section 394(3) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made. The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised.
Section 394(3) of the Act lists the considerations the Commission must take into account:
“394 Application for unfair dismissal remedy
….
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[3] 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.[4]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[6] The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[7]
This decision contemplates the relevant considerations in section 394(3) of the Act in the context of the current application.
Consideration
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 5 September 2024. The delay is the period commencing immediately after that time until 8 September 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[8]
Mr Cokic submits that the following reasons contributed to the delay:
·He is suffering from a cognitive impairment which impacted his ability to file his application within the 21-day time period.
·Mr Cokic cited Dr Alexander Mladenovic, from ADHD WA, who completed an assessment on Mr Cokic in support of his extension of time.
·Mr Cokic notes that he was admitted to hospital on 26 August and discharged on 28 August 2024 following surgery on an infection.
The Applicant submits that he was required to attend multiple medical related appointments during the 21-day period and period of delay, as outlined below:
· 15 August (date of termination) – Asbestos Disease Society Australia appointment.
· 15 August (date of termination) – Winthrop Chiropractic appointment.
· 16 August – Sleep study follow up.
· 16 August – Optometry clinic.
· 17 August – Chiropractic appointment.
· 19 August – Chiropractic appointment.
· 20 August – Natural Medical Clinic.
· 21 August – General Practitioner Appointment.
· 22 August – Clinipath Pathology tests.
· 22 August – Chiropractic appointment.
· 23 August – Hair Tissue Metal Analysis.
· 26 to 28 August – Private hospital admission.
· 31 August - General Practitioner Appointment.
· 3 September - Sleep study follow up.
· 4 September - Natural Medical Clinic.
· 8 September (date of application) – Diabetes Educator.
Tronox, in response to the above, outlines that, with the exception of the admission to Hollywood Private hospital on 26 to 28 August 2024, the medical appointments appear to be routine and voluntary in nature and not for any urgent or exceptional reasons.
Tronox submits that the above list of appointments is evidence that Mr Cokic was able to perform normal everyday tasks during the 21-day period and was not incapable of or incapacitated from filing his application with the Commission.
Tronox also submits that Mr Cokic was able to engage with Tronox in relation to his dismissal on 16 and 21 August 2024, days in which Mr Cokic also attended medical appointments. Tronox submits that this demonstrates Mr Cokic was able to file an application with the Commission despite having to attend multiple medical appointments.
Tronox highlighted that, despite Mr Cokic attending hospital between 26 and 28 August 2024, Mr Cokic had 10 days prior to any hospital admission to file his application and that Mr Cokic was clearly active after his hospital admission as demonstrated by the numerous appointments attended during this period.
Tronox submits that Mr Cokic has not discharged the evidentiary requirements to establish that exceptional circumstances are present which could then warrant an extension of time.
Tronox also highlights the following cases as holding relevance, in which an extension of time was refused by the Commission for similar circumstances to those of Mr Cokic:
· Anderson v Hannigan Civil Pty Ltd:[9] The Respondent submits the applicant in this matter relied on him being bedridden as a reason for delay. Evidence showed the applicant was able to carry out mundane tasks and attend medical appointments.
· Smith v The Trustee for the Salvation Army (Victoria) Property Trust T/A Employment Plus:[10] the Respondent submits that in this matter the applicant asserted they suffered from Post Traumatic Stress Disorder leading to the delay. Evidence showed the applicant had attended medical appointments, emailed their previous workplace, and carried out other mundane tasks during the period.
· Tara Lyons v The Trustee for the Barlow Family Trust T/A La Moda Boutique:[11] the Respondent submits that the reason for delay offered by the applicant in this matter related to their heart condition and associated treatment. The Commission found that the applicant continued to carry out other tasks alongside their illness and treatment, such as attending appointments and contacting various unemployment related services or government bodies as well as attending to common daily tasks.
· Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd:[12] the Respondent notes that the Commission in this matter accepted that the applicant had been unwell and hospitalized for a short period of the delay. However, the Commission further found that the evidence did not provide sufficient explanation regarding the remainder of the period.
Tronox submits that the various applicants in the cases forementioned were in not dissimilar circumstances to that of Mr Cokic and, in those circumstances, the Commission did not grant an extension of time.
Did the Applicant first become aware of the dismissal after it had taken effect?
Mr Cokic was provided with a show cause letter on 8 August 2024, which notified him that his employment was at risk. Mr Cokic responded to this email and was aware that his employment was at risk.
Mr Cokic was notified of his dismissal by email on 15 August 2024, the day on which his employment was terminated and therefore had the benefit of the full 21-day period.
What action was taken by the Applicant to dispute the dismissal?
As highlighted earlier in this decision, Mr Cokic sent an email reply to Ms Symes on 16 August 2024, questioning her authority to terminate his employment with Tronox. Furthermore, Mr Cokic sent correspondence to Tronox on 21 August 2024 which confirmed he was aware his employment had been terminated.
Having considered the submissions and evidence, it is clear that Mr Cokic was aggrieved by his termination and sought to negotiate a settlement directly with Tronox. However, Tronox did not engage in conduct whereby they led Mr Cokic on to believe that such a settlement or similar was likely.
Having regard to this matter, it appears the Applicant took action that reflects he contested the end of his employment.
What is the prejudice to the employer (including prejudice caused by the delay)?
The parties are in dispute regarding this criterion. Having considered the submissions of the parties, I agree with the submissions of Mr Cokic that the delay is relatively short (3 days) and therefore any prejudice to Tronox would be minimal.
What are the merits of the application?
The competing contentions of the parties regarding the merits of the application are set out in their filed materials.
I am not going to repeat the volume of information outlined by the parties.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted.
It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[13] and the same applies to section 394(3)(e) of the Act.
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
Mr Cokic submits that his circumstances are not dissimilar to those in Overden v Fortezza Pty Ltd T/A High Country Automotive Group,[14] in which the applicant was granted an extension of time after filing 26 days late citing depression, anxiety, and workplace stress as the reasons for delay.
Mr Cokic also cited that the short 3-day delay and reasons put forth in the current matter are comparable with those in Carfoot v SAC Sydney Archdiocese T/A St Vincent De Paul Society,[15] in which an extension was granted.
The manner in which individual Members of the Commission form decisions in relation to exceptional circumstances and the subsequent exercise of discretion to grant an extension varies based on the evidence provided by the parties and circumstances of each individual matter. However, this is not to say that previous decisions of the Commission do not hold relevance to the consideration.
Neither party brought to my attention any directly relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding the criteria specified in the Act.
To reiterate, 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.[16] 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.[17]
Mr Cokic provided the Commission with a significant amount of material pertaining to his overall grievances with Tronox as well as a large volume of very dated documents including previous medical reports and results. A significant portion of his submissions were not of assistance or relevance to the matter under determination. Accordingly, such materials have limited influence on the consideration.
Mr Cokic attended no less than 15 medical appointments from the day of his dismissal (15 August 2024) leading up to him making this application on 8 September 2024.
I acknowledge that this is a significant number of medical appointments. However, there is no suggestion or evidence that these medical appointments were so significant as to hinder timely lodgment or related to some type of restricting illness which would understandably delay lodgment.
Other medical information provided by Mr Cokic, relating to medical testing and appointments he attended during the 21-day time period, does not support a conclusion that Mr Cokic was so affected that it would reasonably contribute to delay. Rather, these documents reflect that he attended the respective medical specialist or clinic for testing or appointments. Whilst these activities would have consumed portions of Mr Cokic’s day, the act of attending medical appointments does not necessarily lend to a finding of exceptional circumstances.
I note that the ADHD WA report submitted by Mr Cokic does not indicate that he was unable to file his application with the Commission within the required period. The document appears to be an opinion regarding the applicability of an attention deficit hyperactivity disorder diagnosis for Mr Cokic. The document includes information regarding the symptoms of such disorder and their presence in Mr Cokic if identified. The document does not definitively conclude such diagnosis, noting the possibility for some symptoms that could be attributed to other causes. Despite this, even had the document had concluded a definitive diagnosis of ADHD (and importantly noting the document identifies some relevant symptoms in the Mr Cokic), I am not satisfied such would be a reasonable excuse for delay nor does it strongly support a finding of exceptional circumstances.
I do not doubt that Mr Cokic may struggle with some aspects of executive functioning, but it does not automatically follow that such difficulties exclude the ability for one to lodge an application within the required time. I am not satisfied on the material currently before me that these issues were so severe as to support the existence of exceptional circumstances.
With the exception of the medical certificate confirming he was admitted to a private hospital from 26 to 28 August 2024, the medical evidence provided does not indicate that Mr Cokic was meaningfully hindered from filing his application. Rather, it would appear that Mr Cokic was able to continue to function and complete a range of tasks such as attending the chiropractor and other seemingly non-urgent medical appointments during the period in question.
I am not satisfied that Mr Cokic has addressed the period of delay adequately and the evidence seems to imply that, before and after his hospital admission, he was capable of engaging in other tasks.
Furthermore, it appears Mr Cokic lodged his application on the same day that he attended one of these many medical appointments, leading to the inference that the existence of the medical appointments in and of themselves did not strictly hinder him from completing other tasks including lodging this application.
Similar to the previous decisions of the Commission highlighted by the Tronox, it is clear Mr Cokic was engaging in a variety of tasks ranging from mundane to considerably taxing during the period of delay.
Mr Cokic has implied that this discrepancy in behavior is a result of his cognitive issues. Unfortunately, I am not satisfied that Mr Cokic has adequately supported this assertion with evidence. Mr Cokic provides that his actions of sending lengthy correspondence to Tronox during the period following his termination took significant time and cognitive effort for him to complete. It could be inferred from this submission that such tasks took up Mr Cokic’s energy, leaving him with little to then focus on lodging this application in a timely manner. Mr Cokic also references his occasional “bursts of brilliance” as reason for his sporadic ability to engage in such arduous tasks during the period of delay.
It is a rather convenient submission in the circumstances, that his condition renders him able to occasionally engage in some difficult tasks but not in the lodgment of his application before the deadline, and it is not a submission that I am persuaded by.
I would have no doubt that engaging in such tasks could be exhausting for many individuals, but this does not overcome the fact that Mr Cokic chose to engage in these activities rather than reserve some effort to lodge this application within the statutory time period.
As I have outlined previously in this decision, Mr Cokic was aware that his employment was at risk prior to the decision being made to terminate his employment. The decision to terminate Mr Cokic’s employment was clearly delivered to him in unambiguous terms. There was no delay to Mr Cokic being able to file his application caused by the conduct of Tronox. I have determined that there is no material prejudice that Tronox would suffer if an extension of time was granted, however the lack of prejudice does not mean an extension of time should be granted.
Having regard to all of the matters at section 394(3) of the Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. Mr Cokic’s application for an unfair dismissal remedy is therefore dismissed. An Order to that effect is issued concurrently.[18]
COMMISSIONER
Appearances:
A Cokic, Applicant.
M Ivanovski of CCIWA for the Respondent.
Hearing details:
2024.
Perth (by video):
November 26.
[1] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Ibid; [2015] FWCFB 1877.
[3] [2011] FWAFB 975, [13].
[4] Ibid.
[5] [2018] FWCFB 901, [39].
[6] Ibid, [40].
[7] Ibid, [17].
[8] [2015] FWCFB 287, [12].
[9] [2023] FWC 801.
[10] [2020] FWC 3006.
[11] [2023] FWC 1003.
[12] [2023] FWC 750.
[13] [2011] FWAFB 975, [36].
[14] [2010] FWC 3863.
[15] [2010] FWC 4080.
[16] [2011] FWAFB 975, [13].
[17] Ibid.
[18] [PR784399].
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