Aoife Brady v Disability Services Australia Limited
[2023] FWC 105
•17 JANUARY 2023
| [2023] FWC 105 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Aoife Brady
v
Disability Services Australia Limited
(U2022/10974)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 17 JANUARY 2023 |
Application for an unfair dismissal remedy
Introduction
On 16 November 2022, Ms Aoife Brady (Applicant) filed an unfair dismissal application (Application) with the Fair Work Commission (Commission). The Respondent to the Application is Disability Services Australia Limited (Respondent).
There is no dispute between the parties that the Applicant was dismissed within the meaning of s.386 of the Fair Work Act 2009 (Act). Nor is there any dispute between the parties that the Applicant’s dismissal took effect on 30 September 2022, and that she was notified of her dismissal in writing on that date.
The Applicant should have filed her Application by 21 October 2022 to be within the 21-day time period. It follows that the Applicant has filed her Application 26 days late, or 47 days after her dismissal took effect.
An unfair dismissal application must be made within 21-days after a dismissal took effect, or in such further time as the Commission may allow. The 21-day period prescribed in s.394(2)(a) of the Act does not include the day on which the dismissal took effect. Given that the Application in this matter has been filed 26 days outside of the statutory 21-day period, it is necessary that I determine whether to extend the time for the filing of the Application. Statutory time limits are set down in legislation for good reason, and the starting point is they should be complied with.
At the hearing, Ms Karen Ansen, Ignite HR & Employment Law, appeared with permission for the Applicant, and Mr Glenn Tyrrell, Senior Workplace Relations Manager, Disability Services Australia, appeared for the Respondent.
Legislation
Granting an extension of time requires me to be “satisfied” that there are “exceptional circumstances”. The Full Bench of this Commission in Nulty v Blue Star GroupPty Ltd (Nulty), in relation to the term “exceptional circumstances”, stated:
“[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 [21-day] time limit in s.366(1)(a) is not an exceptional circumstance…”[1]
[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.”
(emphasis added)
The matters that I need to take into account in reaching a state of satisfaction as to the existence of exceptional circumstances are outlined in s.394(3) of the Act, which reads:
“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.”
Each of the individual matters under s.394(3) of the Act need to be considered separately, and in combination. The Applicant bears the onus of establishing the existence of exceptional circumstances.[2]
In Mohammed Ayub v NSW Trains[3], a Full Bench of this Commission described “exceptional circumstances” (in the context of an out of time application) as being a “very high bar” and “strictly limited”.
Reason for delay[4]
On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group[5] (Bianco Mamo), as follows:
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily 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. 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 explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”
Reasons for the delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[6] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[7]
Whilst the Applicant did not file any witness statement evidence, the Applicant’s reasons for delay are set out in her Form F2,[8] in submissions filed 23 December 2022, and in oral submissions made on her behalf at the Hearing on 16 January 2023. Such reasons, in summary, are:
a) the Applicant was overseas when notified of her dismissal, and unable to obtain legal advice; and
b) the Applicant suffered from several serious mental health episodes as a result of the circumstances leading her dismissal. Her condition was exacerbated by the dismissal itself.
In Bianco Mamo, Deputy President Easton outlined issues associated with illness and/or associated incapacity going to asserted reasons for delay in the filing of an application, as follows:
“[19] Sometimes an applicant’s medical condition can be so significant that it effects 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.
[20] In Roberts v Westech IT Solutions Pty Ltd 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.
[21] In Shaw v ANZ Bank 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.
[22] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting 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.”
[23] In Merhi v Commonwealth of Australia 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.”
[24] 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.
[25] 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).”[9]
(footnotes omitted)
I concur with and adopt the foregoing principles.[10]
Exceptional circumstances may be found to exist where an applicant has a medical or other incapacity established by probative medical evidence that prevents or delays him or her from filing an application within the 21 day time period. [11] No such evidence has been provided by the Applicant in this case.
The Applicant may have spent a period of time overseas within the 21-day period post her dismissal, but there is no evidence that she was unable to access the internet, send or receive emails, or make telephone calls. Whether a person decides to avail themselves of legal advice or representation is a matter for them. It is not a matter that explains a delay in filing an application. The Commission’s website (running 24/7) has a wealth of information going to the filing of applications (especially unfair dismissal applications) absent the need for legal advice or representation. Lawyers can be accessed via email, Zoom, Microsoft Teams, and/or over the telephone from anywhere overseas. If a person is motivated to file an unfair dismissal application, but are residing in a different time zone, they may need to stay up late or get up early, but the time zone itself is no barrier to the filing of an application
The Applicant relies upon two reports from her treating psychologist.[12] The fact that the Applicant has attended, or been attending, professional assistance for mental health issues is not to the point. Indeed, none of the Applicant’s contentions, going to her medical circumstances or condition, identify that she was suffering from an incapacity such that she was unable to file her Application within the 21-day time limit. Nor do such contentions explain why the Applicant filed her Application 26 days out of time. None of the factual foundations contained in the reports from her treating psychologist are supported by lay evidence from the Applicant. Rather, the reports essentially consist of hearsay, purportedly told to the psychologist by the Applicant.
All in all, on the evidence before me, I find that that the Applicant’s reasons, for the 26 day delay in filing her Application, are unsatisfactory. Each of the reasons for delay relied upon by the Applicant do not, or do not sufficiently, explain her delay. I thus conclude that the Applicant’s reasons for delay are such that they weigh against any finding as to the existence of exceptional circumstances in this case.
Whether the Applicant become aware of the dismissal after it had taken effect[13]
The Applicant was aware of her dismissal on the day that it took effect. I consider this criterion to be a neutral consideration that weighs neither for nor against any finding as to the existence of exceptional circumstances in this case.
Action taken by the Applicant to dispute the dismissal[14]
There is no evidence that the Applicant took any action to dispute her dismissal with the Respondent prior to filing her Application on 16 November 2022. Despite this, I consider the Applicant’s inaction prior to 16 November 2022 to be a neutral consideration.
Prejudice[15]
The next criterion to be considered is any prejudice to the Respondent occasioned by the 26 day delay. I am not aware of any such prejudice. Whilst the absence of prejudice is not uncommon, such absence is not a factor that automatically weighs in favour of a finding as to the existence of exceptional circumstances.[16] In this case, I treat this criterion as a neutral consideration.
Merits[17]
The principles stated Kyvelos v Champion Socks Pty Ltd[18] (Kyvelos), albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here:
“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … 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. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission’s discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”.[19]
In Kornicki v Telstra-Network Technology Group,[20] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to an extension of time under the former s 170CE(8) of the (now repealed) Workplace Relations Act 1996. In that case, the Full Bench said, in respect to the merits of an application:
“If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[21]
The merits of the Applicant’s case, by reference to her assertions, and the Respondent’s counter assertions, were not tested before me (i.e. it is not the role of the Commission to “embark [upon] a detailed consideration of an Applicant’s substantive case” for the purpose of determining whether or not to grant an extension of time to an applicant to lodge their application).[22]
All in all, I consider that the merits of the Application in these proceedings are a neutral consideration. I weigh the merits neither for, nor against, any finding as to the existence of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position[23]
I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[24] Neither party made any relevant submissions as to this criterion. Accordingly, I consider that this criterion to be a neutral consideration.
Conclusion
Taking into account the criteria set out under s.394(3)(a)-(f) of the Act:
(a) one of the criteria, considered individually, points towards there being no exceptional circumstances; and
(b) considering the requisite criteria on a collective basis, there is no basis for me to be satisfied that exceptional circumstances exist (i.e. one criteria weigh against any finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[25]
On the basis of my reasons set out in this decision, and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence of exceptional circumstances in this case. As a matter of law, I am therefore not in a position to exercise any discretion to grant the Applicant an extension of time to file her Application.[26] I dismiss the Application filed by the Applicant in these proceedings. An Order to this effect will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Ms Karen Ansen, Ignite HR & Employment Law, appeared with permission for the Applicant.
Mr Glenn Tyrrell, Senior Workplace Relations Manager, Disability Services Australia, appeared for the Respondent.
[1] [2011] FWAFB 975.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901.
[3] [2016] FWCFB 5500.
[4] Section 394(3)(a) of the Act.
[5] [2021] FWC 3903.
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39].
[7] Ibid, at [40].
[8] Form F2, 16 November 2022, Item 1.6.
[9] [2021] FWC 3903, at ]19]-[25]. Whilst this reasoning concerned an out of time unfair dismissal claim, there is no basis to suggest that the same reasoning and principles do not apply to a general protections involving dismissal application that has been filed out of time.
[10] See also, Donna Muir McMeeken v Action Industrial Catering Pty Ltd[2012] FWA 4035; Construction, Forestry, Mining and Energy Union v Crossy’s Crane Hire Pty Ltd (t/as Crossy’s Crane Hire)[2013] FWC 8866; Byrnes v Department of Broadband, Communications and Digital Economy[2012] FWA 7744.
[11] Traie Hansen v Supported Options In Lifestyle And Access Services Ltd T/A Solas [2016] FWC 5907, at [45].
[12] Dated 8 November 2022 and 5 January 2023 respectively.
[13] Section 394(3)(b) of the Act.
[14] Section 394(3)(c) of the Act.
[15] Section 394(3)(d) of the Act.
[16] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[17] Section 394(3)(e) of the Act.
[18] (1995) 67 IR 298.
[19] Ibid, at 299 to 300.
[20] Kornicki v Telstra-Network Technology Group [1997] 140 IR 1, at 11 (PR3168, 22 July 1997, Ross VP, Watson SDP, Gay C).
[21] Ibid. See also Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [36].
[22] Kyvelos v Champion Socks Pty Ltd, Print T2421, at [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, cited in Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33].
[23] Section 394(3)(f) of the Act.
[24] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37].
[25] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[26] Noting the definition of “exceptional circumstances” set out in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [13].
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