Anthony Watson v Greenwoods & Herbert Smith Freehills Pty Limited

[2020] FWC 1773

[2020] FWC 1773

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Anthony Watson
v
Greenwoods & Herbert Smith Freehills Pty Limited
(C2019/4209)

DEPUTY PRESIDENT CROSS SYDNEY, 2 APRIL 2020

Application to deal with contraventions involving dismissal.

[1] An application was filed on 9 July 2019 (the Application), by Mr Anthony Watson (the Applicant), pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant alleges his employment was terminated by Greenwoods & Herbert Smith Freehills Pty Limited (ABN 60 003 145 852) (the Respondent) in contravention of general protections under the Act.

[2] In his Application, the Applicant provided information as to the duration of his employment as follows:

“1. General protections dismissal

1.1 What date did you begin working for the employer?

1984

1.2 What date were you notified of your dismissal?

22 April 2016: the respondent notified the applicant of its intention to dismiss the applicant

24 May 2016: the applicant resigned

1.3 What date did your dismissal take effect?

24 May 2017

1.4 Are you making this application within 21 calendar days of your dismissal taking effect?

No”

[3] For clarity, I note the Applicant’s resignation on 24 May 2016 is a correct date, and it is also correct the Applicant’s end of employment became effective one year later, on 24 May 2017. The Applicant was represented by Mills Oakley Lawyers at the time the Application was lodged, which is relevant as the Applicant from around June 2017 also worked for Mills Oakley Lawyers.

[4] General Protections applications involving dismissal must be made within 21 days after a dismissal took effect or in such further time as the Fair Work Commission (the Commission) may allow. As the end of the Applicant’s employment took effect on Wednesday 24 May 2017, an application for a remedy should have been lodged by no later than Wednesday 14 June 2017. The Application, filed on 9 July 2019, was therefore 755 days (or 2 years, 3 weeks and 4 days) late.

[5] As the Application was lodged outside of the 21 day timeframe prescribed by s.366(1)(a) of the Act, I must satisfy myself that a ‘further period’ should be allowed for the filing of the Application prior to any consideration by the Commission of the merits of the Application. Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) provides:

“366 Time for application

…

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[6] It is clear from the structure of s.366(2) of the Act 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.

[7] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.366(2) of the Act, there are exceptional circumstances.

The proceedings

[8] On 30 July 2019, I convened a Directions Hearing to outline how the Commission would determine whether the Applicant be granted a further period to make his application. The Applicant and the Respondent agreed to a timetable for filing their Outlines of Submission, any witness statements and other documentary material on which they intended to rely. The Applicant relied upon two Affidavits sworn by the Applicant, the first such Affidavit containing annexures and the second Affidavit being in reply. The Respondent relied upon a witness statement affirmed by Mr Emmanuel Makas with annexures.

[9] On 23 September 2019, following the filing and serving of the Applicant’s reply material, the Respondent applied to my chambers for an ‘in person’ hearing in an email as follows:

“We refer to the abovementioned proceedings, the directions issued on 30 July 2019 (attached for ease) and the Applicant’s evidence in reply filed and served on 18 September 2019.

The Applicant’s reply evidence raises new matters and is not strictly in reply. In light of that, the Respondent requests a hearing so that it may cross-examine the Applicant. The Respondent and its counsel are available on the following dates:”

[10] I granted this application and set the matter down for a half-day hearing on 24 October 2019. Arising from submissions regarding admissibility of evidence, and the weight to be given to such evidence, it transpired that the Applicant was not cross-examined.

The Facts

[11] Recitation of the alleged relevant facts in the matter must be curtailed due to issues of confidentiality. That curtailment does not in any way hamper consideration of whether exceptional circumstances exist, and, as noted below, neither party made any substantial submission regarding the merits of the Application that would have required a more detailed consideration of the surrounding facts. The relevant facts are:

(a) The Applicant began working for the Respondent in 1984. He became a Partner on 1 July 1989. On 8 August 2007 the Respondent provided the Applicant with a letter that outlined the terms on which he would be employed. The Applicant specialised in providing taxation advice to commercial clients.

(b) The Applicant has for some time suffered from high anxiety and a predisposition to depressive illness. Since at least 2010 he has been taking antidepressant medication. In 2010 he was referred to a Psychologist who treated him until at least late 2016. Reports from that Psychologist, Dr Norris, dated 6 July 2010, 25 February 2011, 11 March 2013, 9 December 2015 and 26 November 2016 were annexed to the Applicant’s first Affidavit.

(c) In 2013, a dispute arose between the Applicant and the Managing Director of the Respondent regarding certain advice. Subsequently, on 25 July 2014, an altercation occurred regarding that advice.

(d) The Applicant claims that in August 2014, he suffered a reduction in his equity points, which had the result of reducing his remuneration.

(e) From October 2014, the Applicant’s depressive illness worsened. On 25 November 2014, the Applicant made a complaint to the Respondent, and there was subsequent correspondence regarding sick leave and medical unfitness.

(f) In April 2015, the Applicant’s Solicitor provided a draft application under the Act (in the form of a General Protections not Involving Dismissal Application) to the Respondent and requested a mediation. That application was filed in the Fair Work Commission on 28 September 2015, and on 28 October 2015 a Conciliation was held, though it was not successful, and the Applicant’s Solicitors requested that the file be closed.

(g) On 22 April 2016 the Respondent issued the Applicant with a letter advising that the Directors of the Respondent intended to meet and consider terminating his employment. After receiving the letter the Applicant considered he had no prospect of retaining his employment, and that he had no choice but to resign on 24 May 2016, giving the required 12 months notice.

(h) The Applicant states he suffered further depressive illness following the cessation of his employment. Dr Norris and the Applicant worked on a ‘graded exposure’ to the CBD of Sydney. In his reply Affidavit, the Applicant provides further detail of that graded return to work, including being accompanied for his first week of work by family and friends on the commute to and from work. In June 2017 the Applicant commenced employment with Mills Oakley Lawyers.

(i) Since the Applicant gave notice on 24 May 2016, Mr Makas states that the composition of the Respondent’s management committee has changed, and the former Managing Director is no longer in that position (and the Respondent’s Submissions go further and suggest he is no longer employed by the Respondent).

Consideration

[12] I will turn then to the particular matters to which regard must be had.

(a) The reason for the delay.

[13] In the Applicant’swritten Outline of Submissions, the Applicant paraphrased and footnoted the decision of the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 1, and submitted:

“The Applicant has long suffered from high levels of anxiety and depression. The Applicant accepts that depression and anxiety do not of themselves constitute exceptional circumstances. The question, as set out in Crossy’s was whether he was capable of progressing his application in a timely way. He was medicated and became suicidal. His mental health declined to the stage that he was frequently unable to instruct his solicitors. He became unable to meet with the respondent or their representative. He became unable to attend work. He became unable to even visit the CBD. He ultimately became unable to give instructions. He became utterly unable to continue the prosecution of his own application before the Commission. He remained unable to recount the events without breaking down until June 2019. These proceedings were then commenced.

The ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

The reason for the delay is clear. The reason was his psychiatric decline.” (Footnotes omitted)

[14] The factual assertions of the Applicant contained in the above submission occurred largely in the years prior to the Applicant’s employment ceasing on 24 May 2017. For example, the evidence supporting the assertion that “He ultimately became unable to give instructions” related to the period around April 2015, when a draft Application pursuant to s.372 of the Act was prepared and served on the Respondent, and was as follows:

“[64] I could not visit the CBD of Sydney as I feared seeing a colleague from the respondent. I was unable to give instructions to my solicitors and felt unable to return to work (even at a different firm).”

[15] It is not in dispute that the Applicant subsequently commenced employment with Mills Oakley Lawyers in June 2017, as leader of the firm’s Sydney tax practice. He has remained in employment since.

[16] The Respondent focussed on that employment in their submissions. Those submissions were as follows:

“Further, it is notable that the Applicant has elected not to make full and candid disclosure to the Commission that within a month of ceasing employment with the Respondent, in June 2017 the Applicant was appointed to lead the Sydney Tax Practice of Mills Oakley. A press release issued by Mills Oakley indicated that as at 19 July 2017 the Applicant had already been assisting that firm’s Property team with the stamp duty and CGT aspects of a major commercial transaction, and also assisting that firm’s Government and Dispute Resolution Teams including in relation to a “tax litigation matter”. Similarly, the Applicant has not disclosed to the Commission that he sought and was successfully appointed to the role of ‘Tax Director’ of Nexia Australia in around March 2019.

It can only be inferred that from in or about June 2017, and by at least July 2017, the Applicant was able to work professionally, exercise his mind and judgment, and give advice about technical issues including in relation to litigious matters.”

[17] In Construction, Forestry, Mining and Energy Union v Crossy’s Crane Hire Pty Ltd T/A Crossy’s Crane Hire 2, Commissioner Booth, in a distillation of relevant decisions, made the following observations regarding on-going medical conditions, including depression and anxiety, constituting acceptable reasons for delay and so being exceptional circumstances3:

“The Respondent drew attention to the well known case of Nulty v Blue Star Group Pty Ltd (Nulty) and to Custo v Norstar Recycling Pty Ltd. In the latter case, the Commission held that depression and anxiety on Mr Custo’s part (coupled with other factors) were not exceptional circumstances. I note other decisions such as Muir McMeeken v Action Industrial Catering Pty Ltd, Rose v BMD Constructions Pty Ltd and Ballarat Truck Centre Pty Ltd v Kerr establish clearly that depression is not of itself exceptional in the Nulty sense. By analogy other on-going medical conditions may fall into the same category.” (Footnotes omitted)

[18] The Applicant submissions claim that the reason for his delay was that he was in psychiatric decline from June 2017 to July 2019. There is simply no evidence, however, of such a decline. The last report from the Applicant’s treating Psychologist was dated 26 November 2016. The height of the Applicant’s evidence was contained in his first Affidavit (repeated in similar form in his Affidavit in Reply), and was as follows 4:

“In mid-2019, for the first time since the cessation of my employment, I felt that my mental health had reached a level of stability to enable me to advance these proceedings before the Fair Work Commission. As soon as I felt I was able to confront the issue, I spoke with Peter Hodges of Mills Oakley in June 2019 and provided the documents and records in my possession for him to consider.”

[19] I do not consider that there is any evidence to support a conclusion that the Applicant was unable to advance his claim in the period from June 2017 to July 2019. Any medical evidence pre-dates that period, and the Applicant’s evidence is no more than a self-assessment of his mental stability.

[20] I find considerable support for my finding that there is no evidence to support a conclusion that the Applicant was unable to advance his claim from the fact that the Applicant,

from at least June 2017, was appointed to lead the Sydney Tax Practice of Mills Oakley. I agree with the Respondent’s Submission that the Applicant was certainly in a position of competence in terms of not only attending the CBD, but also acting on behalf of clients, taking instructions, dealing with the other practice groups within that firm, giving instructions and giving advice in a professional advice context.

[21] The Applicant has without question suffered from significant anxiety and depressive illness for many years, however, such depression and anxiety are not exceptional circumstances. The Applicant has not been rendered unable to advance his claim by his illness, and there is no evidence of a psychiatric decline from June 2017 to July 2019. There is no evidence that his cognitive functioning was impaired to such a degree as would have the result that he was unable to make the Application, or give instructions for the making of such Application, within the time prescribed. As there is no acceptable reason for the delay, this factor weighs in the Respondent’s favour.

(b) Any action taken by the person to dispute the dismissal.

[22] The Applicant claims he took steps to dispute his dismissal, however the steps identified all relate to the General Protections not Involving Dismissal Application, both in draft and filed form, that were advanced between April and October 2015. Those steps are, however, irrelevant to the factor considered at s.366(2)(b).

[23] The “dismissal” is that constituted by the Applicant’s allegedly forced resignation on 24 May 2016, which became effective one year later, on 24 May 2017. In contrast to his actions the year prior, the Applicant took no steps to dispute what he claimed was his dismissal, either within the 12 month notice period or thereafter, until the Application was filed. That he did not do so, in the circumstances of this matter, weighs in the Respondent’s favour.

(c) Prejudice to the employer (including prejudice caused by the delay)

[24] The period of delay is significant. I consider it beyond doubt that after such a significant period of time, which is exacerbated by the addition of the 12 month notice period, memories of events would have faded and relevant staff may have moved on (noting the apparent inconsistency between the Statement of Mr Makas and the Respondent’s Submissions regarding the former Managing Director). I consider this factor weighs slightly in favour of the Respondent.

(d) The merits of the application

[25] Neither party urges that the Commission should undertake a detailed assessment of the merits of the Application. I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues.”

[26] As these matters are contested, I am unable to make a finding that this case either lacks merit or has significant merit. In these circumstances, the question of the merits of the application is a neutral consideration.

(e) Fairness as between the person and other persons in a like position

[27] Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.

Conclusion

[28] The Application was filed 755 days (or 2 years, 3 weeks and 4 days) late. the Applicant has not established that when viewed holistically the circumstances are out of the ordinary, unusual, special or uncommon. The appropriate weight assigned particularly to the reason for delay, any action taken to dispute the dismissal and prejudice to the employer, all point to the absence of exceptional circumstances.

[29] Therefore, I am not satisfied that the Commission has jurisdiction to hear the claim and I order that the Application be dismissed.

DEPUTY PRESIDENT

Appearances:
Mr I Latham, of counsel, appeared for the Applicant, instructed by Mr J Pokoney of Mills Oakley Lawyers
Mr Y Shariff, of counsel, appeared for the Respondent, instructed by Ms Forster of Kennedys Law

Hearing details:
2019
Sydney
October 24

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 1   [2018] FWCFB 901, 273 IR 156 at [44].

 2   [2013] FWC 8866

 3 At paragraph [24].

 4 At paragraph [89].